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Procedural History
In this case, the Supreme Court ruled on two issues: (1) Who held title of the Big Horn Riverbed and (2) Whether Tribes retained regulatory authority over hunting and fishing on reservation land owned in fee-simple by non-Indians.

First, the Court resolved whether title of the Big Horn Riverbed remained with the United States, held in trust for the Crow Tribe, or was transferred to the State of Montana when it was admitted to the Union. The Court found the title belonged to Montana. Since the federal government, "[a]s a general principle," transfers title for navigable waterways to States upon incorporation, the equal footing doctrine requires that Montana retains the same right to title for navigable waters within the geographic boundaries as other states. While the Second Treaty of Fort Laramie conveyed land to the Crow Tribe, setting it "apart for the absolute and undisturbed use and occupation of the Indians," it did not explicitly refer to the riverbed. Therefore, the Treaty language cannot overcome the presumption that title passed to the State of Montana. Second, analogizing to Oliphant 's holding in the context of criminal jurisdiction, the Court held that Tribes do not have inherent sovereign power to exercise civil jurisdiction over activities occurring on fee-simple reservation land owned by nonmembers unless (1) the nonmembers have entered "consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements" or (2) the nonmember's "conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." The Court found that nonmember hunters and fishers on fee-simple land neither entered consensual relationships with the tribe nor threatened the political or economic integrity of the Tribe. Therefore, the Tribe could not regulate nonmember hunting and fishing practices on fee-simple land within the reservation.

Arguments were heard on December 3, 1980 and the decision announced March 24, 1981.

Originally, a federal district court had ruled that the state of Montana, not the Crow Tribe, owned and had the ability to regulate the land in dispute. The Ninth Circuit Court of Appeals would reverse the decision made in the lower courts, and establish that the Crow tribe had the authority to regulate hunting and fishing, since they did occur on tribal lands. In its historic 1981 decision, the Supreme Court would reverse the decision made by the court of appeals, and return authority over the land to the state of Montana. Although the Supreme Court ruled against the Crow Tribe, important guidelines were established regarding Native American sovereignty, and the power which tribes had over non-members.

The court would eventually rule "A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." No consensual relationships existed between the Crow tribe and the non-member sportsman. The tribe had also not said that the outdoor use of their lands by non-members would "imperil the subsistence or welfare of the tribe." As a result of these conditions, the Crow tribe was not entitled to regulate the activities by non-members on their fee lands. The tribes "retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members." However, this case was dealing with non-tribal members who were not endangering the tribe. Due to the court's statement that the tribal court could regulate conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe", the tribe did not have the authority to impose fees and taxes on the non-Indian hunting and fishing use of tribal lands. However, this court ruling does not limit tribal sovereignty to the exterior boundaries of the reservation.

Subsequent Case Law
As the Supreme Court stated in Verizon Communications v. Law Offices of Curtis V. Trinko, Aspen as "[t]he leading case imposing § 2 liability for refusal to deal with competitors." Aspen "is at or near the outer boundary of § 2 liability" and represents a "limited exception" to a firm's right to choose with whom to do business that applies when a monopolist is willing to "forsake short-term profits to achieve an anticompetitive end." Subsequent cases have applied and refined Aspen 's holding:


 * Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451(1992) (finding protection of intellectual property qualified as a valid business justification for a monopolist's unilateral refusal to deal, but this justification does not extend to products or services outside the scope of the patent)
 * In re Indep. Serv. Organizations Antitrust Litig. (Xerox), 203 F.3d 1322 (Fed. Cir. 2000) (Applying Kodak, without citing Aspen, the Court found no antitrust liability for refusal to license intellectual property protected by patents and copyrights because IP-right holders enjoy the statutory right to exclude even when there is a risk of anticompetitive harm)
 * LePage's Inc. v. 3M, 324 F.3d 141, 150 (3d Cir. 2003) (Citing Aspen, the Court required the defendant monopolist to justify its exclusionary dealings and loyalty discount practices with a legitimate business purpose)


 * Verizon Communications v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004) (Distinguishing Aspen, the Court found no antitrust liability for a monopolist's unilateral refusal to cooperate with a rival when there was no history of prior cooperation because, unlike the termination of a successful joint-venture, refusal to enter a cooperative agreement does not create a presumption that the monopolist sacrificed short-term profits for future anticompetitive gain)
 * Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U.S. 438 (2009) (finding, absent a duty to deal as existed in Aspen, a monopolist's practice of charging rivals high wholesale prices, while charging direct consumers low retail prices, known as "price-squeezing," is not cognizable under the Sherman Act)

Criticism
Aspen Skiing was criticized for its simplification of economic analysis and controversial remedy.

Inadequate Analysis of Exclusionary Effects
In its caution to avoid imposing inappropriate duties to deal, the Court focused significant attention on the history of successful joint-ventures to illustrate that such conduct was possible and beneficial. As critics point out, however, this analysis alone does not support an antitrust violation. If a joint-venture produces efficiencies, both parties should be able to reach an agreement without judicial intervention. Therefore the discontinuation a joint-venture should not be suspect except in very narrow circumstances where one rival has the ability to exclude the other from the market. In this case, Ski Co. did not explicitly exclude Highlands since it did not prohibit its ski customers from also purchasing passes from Highlands. Still, Ski Co. might have functionally excluded Highlands. With three of the four Aspen mountains, Ski Co. enjoyed significant economies of scale. It also employed a non-linear pricing structure, offering significantly lower rates for multi-day passes over single-day passes. Customers choosing Ski Co.'s multi-area, multi-day passes may choose not to purchase Highlands passes since they already sunk the cost of the Ski Co. ticket. While this exclusion could raise antitrust concerns, the Court did not address the central issues: whether there were economies of scale, whether there were sufficient day-pass skiers to avoid harm from exclusion in the multi-area/multi-day pass market, whether the non-linear pricing structure lead to exclusion.

While its emphasis on prior dealing might have muddled the underlying antitrust analysis, the Court did not wholly disregard exclusion. When discussing consumer preferences, the Court referenced a survey in the record indicating that over half of respondents "wanted to ski Highlands, but would not" and about 40% responded that "they would not be skiing at the mountain of their choice because their ticket could not permit it." The Court, quoting the 10th Circuit decision, also "noted that by refusing to cooperate with Highlands, Ski Co. became the only business in Aspen that could offer a multi-day multi-mountain skiing experience." While neither the Supreme Court nor the 10th Circuit analyzed how exclusion from the multi-day/multi-area sub-market impacted the downhill skiing market as a whole, these facts may be relevant to finding the exclusion necessary for a monopolization claim.

Improper Market Definition
Neither the 10th Circuit nor the Supreme Court engaged in significant analysis of the relevant market. This, however, was not an oversight. The 10th Circuit refused to hear Ski Co.'s appeal of the relevant market instruction because they failed to properly object during the trial. Ski Co. argued that the relevant market should be decided by the judge as a matter of law (applying the Small, but Significant and Non-Transitory Increase in Price or SSNIP test), not the jury. The trial court judge disagreed, reinforcing the idea that market definition is generally a question of fact. Ski Co. failed to object to the jury instruction's emphasis on relevant submarkets. Therefore, the appeals courts adopted the jury findings that " the relevant product submarket was downhill skiing services in the Aspen area, including multi-area and multi-day lift tickets" and "the relevant geographic submarket was the Aspen area." Criticism of this conclusion falls on the jury, not the judges.

While the jury apparently accepted the analysis of the Plaintiff’s marketing expert, who emphasized that Highlands and Ski Co. competed over skiers who already decided to come to Aspen, Ski Co. argued that this limited geographic market definition overlooked the fact that most Aspen skiers came from outside Colorado, suggesting that Aspen resorts actually competed with skiing destinations throughout North America. A wider geographic market could mean Ski Co. lacked the requisite monopoly power for a conviction under Section 2. While the court alludes to the difference between multi-area/multi-day packages and single-day passes, it does not question the jury's finding.

Inappropriateness of Injunctive Relief
The injunction requiring cooperation to offer an All-Aspen ticket was widely criticized. First, since cooperation failed in the market, an injunction to cooperate forces the court to play the role of regulator, overseeing the price-setting and other complex terms of the contract. Second, requiring cooperation can make it easier for rivals to illegally collude in markets outside the joint-venture. In fact, in 1975, when Highlands and Ski Co. were cooperating to offer the All-Aspen ticket, the Colorado Attorney General sued both of them for alleged price-fixing. The case settled with a consent decree allowing the All-Aspen ticket to continue.

Chosen Article: Aspen Skiing Co. v. Aspen Highlands Skiing Corp.

Background (NOT DRAFT): This was one of my favorite cases from antitrust law-- its interesting in antitrust land because it is a rare example of a court requiring the defendant to deal with its competitor (the plaintiff). In general there's no duty to deal with competitors and while some worried that this case might impose such a duty, its really a much narrower ruling. This case establishes that a refusal to deal with a competitor can constitute monopolization when doing so would be against the defendant's interest absent later anticompetitive gains. (This rule is similar to the court's predatory pricing test, but does not seem to require showing a likelihood of recoupment).

Useful Sources:


 * Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985)
 * https://poseidon01.ssrn.com/delivery.php?ID=225088106066099005099000118099107122063069081044038058081117102113067084069124102065019050096119055113011093026004096104109075008047028029049105116075114112069097089003015073093099087018012029085085016017011120117123125079080006098124075005124094003065&EXT=pdf geographic market definition
 * https://congressional.proquest.com/congressional/result/pqpresultpage.gispdfhitspanel.pdflink/$2fapp-bin$2fgis-hearing$2fc$2f5$2fb$2f1$2fhrg-2003-hjh-0005_from_1_to_98.pdf/entitlementkeys=1234%7Capp-gis%7Chearing%7Chrg-2003-hjh-0005
 * "That is why courts analyzing claims of exclusionary conduct have focused not on attempts to establish a list of practices that are (or are not) exclusionary, but have analyzed instead the "anticompetitive effect" of the challenged conduct. Microsoft, 253 F.3d at 58. Thus, conduct is exclusionary if it "harms the competitive process." Town of Concord v. Boston Edison Co., 915 F.2d 17, 21 (1st Cir. 1990) (Breyer, J.). In Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), the Supreme Court recognized the broad and flexible nature of exclusionary conduct: "If a firm has been 'attempting to exclude rivals on some basis other than efficiency,' it is fair to characterize its behavior as predatory." 472 U.S. at 605 (quoting R. Bork, The Antitrust Paradox, 138 (1960)). Aspen went on to quote the Areeda and Turner definition of exclusionary conduct: "behavior that not only (1) tends to impair the opportunities of rivals, but also (2) either does not further competition on the merits or does so in an unnecessarily restrictive way." Id. at 605 n.32, (quoting P. Areeda & D. Turner, 3 Antitrust Law 626b, 78 (1978)). While the fact pattern in Aspen cer- tainly met that test, the Court has never-in Aspen, Kodak or elsewhere-pronounced that only forsaking profits would do so. Indeed, the Seventh Circuit has interpreted Aspen to mean "a monopolist may be guilty of monopolization if it refuses to cooperate with a competitor in circumstances where some cooperation is indispensable to effective competition." Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 797 F.2d 370, 379 (7th Cir.) (Posner, J.)rehearing denied, 802 F.2d 217 (1986), cert. Denied, 480 U.S. 934 (1987). That is precisely what Trinko and CLECs have alleged. The ILECs refuse to deal with CLECs with the specific knowledge that their refusal makes it impossible to compete."
 * https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3317&context=clr
 * https://www.jstor.org/stable/pdf/40843670.pdf?refreqid=excelsior%3A13ef15b4c6f4540058029d2144d01adb
 * "While Aspen's role over the past 20 years has been highly influential its future looks dim. In Trinko Justice Scalia described the case as lying "at or near the outer boundary" of Section 2 liability35 - and while he was writing for a six-Justice majority, no Justice wrote in dissent and none of the three concurring Justices took issue with Scalia's characterization of Aspen. Many antitrust scholars and others interested in aggressive enforcement of Section 2 have sharply criticized both the tone of Justice Scalia's opinion - i.e., antagonistic to what they perceive as the proper goals of competition law - as well as the opinion's substance - i.e., pep pered with unnecessary, and unnecessarily harsh, commentary about the parameters of Section 2. The fact that no other Justice uttered a word of dissent or disagreement with Justice Scalia's critique of Section 2, however, provides powerful proof that the Court unanimously regards Section 2 in general, and Aspen in particular, as confusing and in need of comprehensive reconsideration." (p.63)
 * https://www.justice.gov/atr/competition-and-monopoly-single-firm-conduct-under-section-2-sherman-act-chapter-7
 * "Twelve years later in Aspen Skiing Co. v. Aspen Highlands Skiing Corp., the Court found an unlawful refusal to deal with a rival in a decision subsequently described by the Court as being "at or near the outer boundary of § 2 liability."(11) The Court found that a firm operating three of four mountain ski areas in Aspen, Colorado, violated section 2 by refusing to continue cooperating with the firm that owned the fourth ski area in offering a combined four-area ski pass.(12) In reaching this conclusion, the Court focused on defendant's refusal to sell its rival any lift tickets, even at retail prices,(13) and its refusal to accept retail-price coupons for its mountains issued by its rival, even though the coupons would have provided defendant "with immediate benefits and would have satisfied its potential customers."(14) Characterizing the refusal to continue offering a joint ticket as "a decision by a monopolist to make an important change in the character of the market,"(15) the Court found that the evidence (including, in particular, the cessation of a prior course of voluntary dealing, which the Court presumed to have been profitable) permitted the jury to conclude "that there were no valid business reasons for the refusal."(16)
 * Other sources: 29. Frank H. Easterbrook, On Identifying Exclusionary Conduct, 61 Notre Dame L. Rev. 972, 973 (1986); see also, e.g., Ronald A. Cass & Keith N. Hylton, Preserving Competition: Economic Analysis, Legal Standards and Microsoft, 8 Geo. Mason L. Rev. 1, 27 (1999) (stating that Aspen Skiing "has been roundly criticized"); Herbert Hovenkamp, The Monopolization Offense, 61 Ohio St. L.J. 1035, 1044­45 (2000) (noting that the implications of Aspen and Kodak "are problematic to say the least"); Michael Jacobs, Introduction: Hail or Farewell? The Aspen Case 20 Years Later, 73 Antitrust L.J. 59, 68 (2005) (asserting that the "problematic aspects of Aspen lead to a conclusion that the case is an anomaly" and that "Aspen was a poor tool for crafting important doctrine under Section 2; the Court's opinion did little to clarify the meaning of Section 2, and much to obscure it"); William E. Kovacic, The Antitrust Paradox Revisited: Robert Bork and the Transformation of Modern Antitrust Policy, 36 Wayne L. Rev. 1413, 1456 (1990) (noting that "many commentators have criticized [Aspen Skiing 's] result and reasoning"); James B. Speta, Antitrust and Local Competition Under the Telecommunications Act, 71 Antitrust L.J. 99, 135 (2003) (describing the Aspen Skiing decision as "much criticized"). But see Jonathan B. Baker, Promoting Innovation Competition Through the Aspen/Kodak Rule, 7 Geo. Mason L. Rev. 495, 496­97 (1999) (arguing that the "Aspen/Kodak rule . . . is likely to promote innovation").
 * "The Department believes that there is a significant risk of long-run harm to consumers from antitrust intervention against unilateral, unconditional refusals to deal with rivals, particularly considering the effects of economy-wide disincentives and remedial difficulties. The Department thus concludes that antitrust liability for unilateral, unconditional refusals to deal with rivals should not play a meaningful part in section 2 enforcement."
 * Brett Frischmann & Spencer Weber Waller, Revitalizing Essential Facilities, 75 Antitrust L.J. 1, 7 (2008)
 * "Following MCI, the lower courts widely adopted the essential facilities doctrine,13 but the Supreme Court has never used it by name. The closest the Supreme Court came to doing so was in Aspen Skiing—in which it affirmed a jury verdict of antitrust liability that the appellate court had affirmed in reliance on the essential facilities doctrine.14 In Aspen Skiing, the defendant “monopolist” controlled three of four ski mountains in Aspen, Colorado.15 The defendant had engaged in a longstanding pro-consumer joint venture with the remaining competitor, which owned the fourth mountain in the valley. The defendant then abruptly terminated the joint venture without a credible business justification. The Supreme Court affirmed the verdict for the plaintiff, but declined to address the essential facilities test used by the lower court. Instead, the Supreme Court relied on the monopolist's termination of a successful consumer-friendly program that lacked a plausible business justification, and on the defendant's willingness to sacrifice profits to injure competition on a long-term basis.16 Since MCI and Aspen Skiing, there has been a gradual narrowing of the essential facilities doctrine. Courts have applied the doctrine more stringently and more sparingly. Nonetheless, the lower courts have repeatedly turned to it because it represents a fundamental understanding about the misuse of monopoly power."
 * A General Analysis of Exclusionary Conduct and Refusal to Deal--Why Aspen and Kodak Are Misguided, 68 Antitrust L.J. 659, 677–78 (2001)
 * The Court's position is simple. The consumers liked the four-mountain pass, and it had been sold before on certain terms. Hence, according to the Court, they knew that the joint venture was feasible and beneficial. Such logic is, I think, partially correct but inapplicable here. That is, the Court is wary of imposing an antitrust duty to deal where it might be imposing high costs by forcing firms to deal or by inventing price terms in a new setting. But previous behavior (or behavior toward others) can be used to show that those costs are not high. Although correct, such an approach penalizes change and, therefore, can make firms reluctant to enter such agreements initially. But, even if there is logic to the Court's reasoning, it is inapplicable here for the reason already stated: There is no antitrust gain from intervention. Absent intervention, the joint venture agreement would remain in force if it were efficient to do so—just on worse terms for Highlands. According to the Court's logic, Highlands's refusal to accept the lowered price terms could be regarded as the antitrust violation. In short, it is hard to see any economic basis to use the antitrust laws to compel the joint venture to continue. The Court's *678 holding in Aspen simply lacks economic logic. Its best use would be a very narrow reading that effectively removes it as a precedent for future cases.34 There is, however, one aspect that the Court pays little attention to that is at least a theoretically valid antitrust concern in light of our earlier analysis of refusals to deal. Absent the joint venture, the Aspen case falls into Case 2. Suppose Ski could somehow impose exclusivity on skiers—i.e., you cannot ski at any of Ski's three mountains if you also ski at Highlands. If there were significant scale economies, this could prevent Highlands from being an effective competitor. Now, Ski did not impose an exclusivity requirement, but did use a nonlinear pricing schedule (six-day pass costs less than six times single-day pass). Did this schedule create effective exclusivity that harmed competition? I do not know, but at least it is perhaps a sensible question to investigate under a rule of reason. Are there scale economies? Where there enough single-day skiers so that critical volume was available? Were the price terms so unreasonable (recall the caveat in Case 2 on treating nonlinear pricing as an antitrust violation) to justify treating it as exclusivity? Even if Highlands is harmed, are there offsetting efficiencies that Ski could claim? Although this exclusivity concern could have been an interesting antitrust issue to decide, it was not one that the Court did debate.
 * Antitrust Law at the Federal Circuit: Red Light or Green Light at the Ip-Antitrust Intersections, 69 Antitrust L.J. 739, 745–46 (2002)
 * "Image Technical Services 's emphasis on the IP owner's subjective motivation derives primarily from the Supreme Court's leading decision on refusals to deal, Aspen Skiing Co. v. Aspen Highlands Skiing Corp.24 Image Technical Services construes Aspen Skiing as broadly prohibiting a monopolist from refusing to deal with competitors unless it has a legitimate business justification for doing so.25 The court recognized, however, that applying Aspen Skiing or the antitrust laws generally to an intellectual property owner's refusal to license or sell patented or copyrighted products would give insufficient deference to the rights of IP owners.26 *746 To address this concern, Image Technical Services purports to adopt a “modified version” of the Data General rebuttable presumption rule.27 At the same time, Image Technical Services also provides antitrust claimants with what could amount to a powerful weapon, or perhaps just a tool for mischief, for rebutting that presumption—the pretext exception. According to Image Technical Services, an antitrust claimant can overcome the presumption by showing that a monopolist asserted its intellectual property rights as a “pretext” to conceal anticompetitive conduct.28"