The Right to Refuse to Deal, the Essential Facilities Doctrine, and the Digital Economy

Authors

George SakkopoulosFollow

Abstract

Various commentators, as well as the 2020 report on competition in digital markets by the majority staff of the House Judiciary Committee, have advocated for the revival of the essential facilities doctrine, especially in the context of the digital economy. This Article examines the three phases in the development of the essential facilities doctrine and the right to refuse to deal—the foundations in the early twentieth century, the contraction of the right to refuse to deal and the expansion of the essential facilities doctrine in the mid-twentieth century, and the revival of the right to refuse to deal and the limiting of the essential facilities doctrine in the early twenty‑first century—and finds that there are considerable issues with the application of the doctrine to the digital economy even if the most expansionist precedents are applied.

This Article also assesses the constitutionality of the essential facilities doctrine in general and its potential application to the digital economy in particular. In 1999, Abbott Lipsky and Gregory Sidak published the only article to examine at length potential constitutional issues with the essential facilities doctrine. Writing in the context of the Microsoft monopolization case, Lipsky and Sidak found the potential application of the essential facilities doctrine to Microsoft constitutionally suspect under the First and Fifth Amendments. Since the publication of that article, there have been major developments in essential facilities, refusal to deal, and First and Fifth Amendment jurisprudence. This Article examines issues with the potential application of the essential facilities doctrine to the digital economy based on recent First and Fifth Amendment decisions and finds it constitutionally suspect.

First Page

1035

Last Page

1096

Date Created

5-15-2024

Publisher

St. Mary's University School of Law

Editor

Maximiliano Elizondo

Recommended Citation

George Sakkopoulos, The Right to Refuse to Deal, the Essential Facilities Doctrine, and the Digital Economy, 55 St. Mary's L.J. 1035 (2024).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss4/3

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