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The Essential Facilities Doctrine: From Locomotives to Search Engines

BY | April 12, 2023

The Essential Facilities doctrine began as an effort to balance the efficiency of asset-sharing against the need to promote competition. In practice, however, judges have nearly always ignored sharing except…

The Essential Facilities doctrine began as an effort to balance the efficiency of asset-sharing against the need to promote competition. In practice, however, judges have nearly always ignored sharing except to the limited extent that it impacted competition. This bias was not particularly harmful in the Old Economy, where network effects were rare and scale economies limited. But product performance in the Digital Economy often depends on sharing just as much, and sometimes more, than competiti

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