Nikolas Guggenberger (Yale University – Yale Information Society Project; Harvard University – Berkman Klein Center for Internet & Society) has posted “The Essential Facilities Doctrine in the Digital Economy: Dispelling Persistent Myths” (Yale Journal of Law & Technology, forthcoming) on SSRN. Here is the abstract:
The antitrust ‘essential facilities’ doctrine is reawakening. After decades of rejection and decline, the doctrine’s approach of granting access rights to facilities for which there is no reasonable alternative in the market has received several high-profile endorsements across the political spectrum. While courts have mainly applied the doctrine to physical infrastructure, its potential now lies in addressing the gatekeeping power of online platforms. However, despite its recent endorsements, the doctrine’s criticism from the past decades lingers. Many of the objections to the essential facilities doctrine are fueled by persistent myths and misconceptions, most prominently related to the doctrine’s economic justification, its administrability, and its propensity to entrench monopoly power. This Essay addresses these common objections and paves the way for the much-needed application of the essential facilities doctrine to the digital economy.