On July 12, 1978, Professor John Flynn of the University of Utah Law School urged the National Commission for the Review of Antitrust Laws and Procedures (National Commission or NCRALP) to consider recommending that Congress amend section 2 of the Sherman Act to permit the government to challenge persistent and substantial monopoly power without showing that the monopoly power was acquired or maintained through objectionable conduct. In Professor Flynn's view, eliminating the prevailing conduct requirement in certain government monopolization cases would expedite litigation and produce more effective remedies, two of the National Commission's central objectives. First, this article explains that a no-conduct standard would lead to faster, more efficient proceedings. Second, the article maintains that eliminating the conduct requirement should produce more effective remedies. In the remainder of the article the authors present in greater detail the reasons underlying these two particular conclusions, and in the process address the key issues highlighted by the National Commission.
John B. Kirkwood et al.,
Elimination of the Conduct Requirement in Government Monopolization Cases, 37 WASH. & LEE L. REV. 83