458
Opinion of the Court
probability of success requires proof of more than intent alone should have been removed by the subsequent passage in Swift which stated that "not every act that may be done with intent to produce an unlawful result . . . constitutes an attempt. It is a question of proximity and degree." Id., at 402.
The Lessig court also relied on a footnote in Du Pont & Co., supra, at 395, n. 23, for the proposition that when the charge is attempt to monopolize, the relevant market is "not in issue." That footnote, which appeared in analysis of the relevant market issue in Du Pont, rejected the Government's reliance on several cases, noting that "the scope of the market was not in issue" in Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555 (1931). That reference merely reflected the fact that, in Story Parchment, which was not an attempt to monopolize case, the parties did not challenge the definition of the market adopted by the lower courts. Nor was Du Pont itself concerned with the issue in this case.
It is also our view that Lessig and later Ninth Circuit decisions refining and applying it are inconsistent with the policy of the Sherman Act. The purpose of the Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself. It does so not out of solicitude for private concerns but out of concern for the public interest. See, e. g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 488 (1977); Cargill, Inc. v. Monfort of Colorado, Inc., 479 U. S. 104, 116-117 (1986); Brown Shoe Co. v. United States, 370 U. S. 294, 320 (1962). Thus, this Court and other courts have been careful to avoid constructions of § 2 which might chill competition, rather than foster it. It is some-
Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 NextLast modified: October 4, 2007