Essential facilities

Since United States v. Terminal Railroad Association, the essential facilit ies doctrine has been applied to a wide variety of business contexts-from f ootball stadiums to the New York Stock Exchange. However, courts have also declined to extend the doctrine to a wide variety of situations. Despite ac ademic criticism, courts have never provided a coherent rationale for the l imitations of the doctrine. The essential facilities doctrine can be seen a s an equivalent to the economic concept of a "natural monopoly," implying t hat the wisdom of judicial regulation in this area requires an assessment o f the administrative complexity involved. Three conclusions follow: First, diversification restraints on the owners of essential facilities are ineffi cacious. Second, the doctrine should not be applied to intellectual propert y. Third, the doctrine is most likely to be useful when the monopoly facili ty is shared by numerous competitors, has excess capacity, and where the ap plicants seek access on the same terms as the incumbents. Finally, an exami nation of the government litigation against the Microsoft Corporation revea ls that an injunctive remedy providing mandatory access to the Windows plat form could run into two sorts of constitutional difficulties. First, a cour t would be forced to deal with a complex pricing problem to avoid a violati on of the Takings Clause of the Fifth Amendment. Second, to the extent the Windows platform may be regarded as a forum for communication, mandatory ac cess may lead to compelled speech, potentially violating the First Amendmen t.