Antitrust Law
Post-Profit Antitrust
Antitrust analysis generally assumes that firms seek profit, but that assumption does not always hold. This Feature offers an antitrust framework for analyzing non-profit-maximizing conduct—like values-driven boycotts or faith-based mergers. It shows that antitrust can protect against harmful practices and transactions, however they are motivated.
Copyright, Meet Antitrust: The Supreme Court’s Warhol Decision and the Rise of Competition Analysis in Fair Use
In its recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court noted that whether defendant’s work competes with plaintiff’s is a key element of the fair-use analysis. This Essay argues that antitrust law offers valuable guidance for assessing competition in copyright law.
Supply-Chain Wage Theft as Unfair Method of Competition
This Note argues that wage theft in the fissured economy is a competition problem, not just a labor problem. It first recovers a historical understanding of substandard wages as an unfair method of competition. It then proposes FTC action against supply-chain wage theft using Section 5 of the FTC Act.
The Political Economy of Arbitration Law
The prevalent academic critique of arbitration, the access-to-justice critique, fails to account for arbitration’s influence on how firms organize themselves. This Note offers a new critique of arbitration from a political-economy perspective, arguing that today’s highly restrictive arbitration law greatly benefits firms organized as gig platforms.
Brandeisian Banking
For much of the twentieth century, banking law used an array of carrots and sticks to create a banking system that was both very stable and highly decentralized. This history is key to understanding how banking law has, and could again, serve Brandeisian aims.
Banking and Antitrust
This Essay seeks to recover the deeply rooted connection between U.S. banking law and antitrust. It reconceptualizes banking law as a sector-specific antimonopoly regime that imposes multiple structural constraints on publicly subsidized banks’ ability to abuse their power over the supply and allocation of financial resources in a democratic economy.
The Antimonopoly Presidency
This Note traces the separation of powers in U.S. antimonopoly law—a division of authority that arose after the National Industrial Recovery Act failed in 1935 and that the Biden Administration is attempting to reconfigure today. To succeed, a revived antimonopoly presidency must incorporate the lessons of the NIRA’s history.
Open Access, Interoperability, and DTCC’s Unexpected Path to Monopoly
This Article argues that open-access and interoperability requirements helped the Depository Trust & Clearing Corporation monopolize U.S. securities clearing and depository markets. DTCC’s path to monopoly offers a cautionary tale for policymakers seeking to use open access and interoperability to curb industry consolidation in Big Tech, social media, and elsewhere.
The Antitrust Duty to Deal in the Age of Big Tech
Tech platforms are often accused of refusing to deal with their competitors. But courts have largely killed off antitrust liability for such behavior, citing concerns that it would chill investment in new technologies. This Article argues that antitrust can protect investment without needlessly stifling enforcement in meritorious cases.
Recovering the Moral Economy Foundations of the Sherman Act
This Feature grounds a core prescription for antitrust law—to disperse economic coordination rights—in its “moral economy” origins, tracing a thread through the common law, nineteenth-century antimonopoly politics, and the legislative history of the Sherman Act. The normative thread traced here is interwoven with an argument about institutional roles.
Antitrust and Platform Monopoly
Large digital platforms often are not winner-take-all markets. As a result, antitrust has a role but breakup is rarely the right solution. Better options include incentivizing competition within the platform or forcing interoperability or information sharing. Current merger policy, however, is poorly designed to address platform acquisitions of small firms.
Antitrust’s High-Tech Exceptionalism
Today, the digital marketplace is dominated by only a handful of tech companies. During the last two decades, American antitrust law has acquiesced to this consolidation not only by failing to evolve from its roots in smoke-stack industries, but also by giving big tech special dispensation under traditional antitrust doctrines.
Dominant Digital Platforms: Is Antitrust Up to the Task?
Consolidation through mergers and exclusionary conduct by dominant firms can harm consumers and workers and reduce innovation. Digital networks are a particular concern because of barriers to entry. While antitrust law in principle can be strengthened by evolution, new legislation would be a more rapid and certain path to reform.
Market Definition and Anticompetitive Effects in Ohio v. American Express
With high-tech industries attracting increased scrutiny, the Supreme Court’s analysis of the two-sided market in Ohio v. American Express will be a focus of antitrust litigation. This Essay argues that, despite the apparent focus on market definition, the Court’s opinion is most persuasive in its contextual evaluation of competitive effects.
The Easterbrook Theorem: An Application to Digital Markets
Frank Easterbrook argued that erroneous antitrust convictions are more costly than erroneous acquittals. We find that if he is correct, the optimal standard of proof is stronger than preponderance of evidence. Our conclusion stands in stark contrast to proposals to reduce the evidentiary burdens facing antitrust plaintiffs in digital markets.
The New Antitrust/Data Privacy Law Interface
Antitrust theory portrays data privacy as a factor, like quality, that improves with competition. This Essay argues that view, though not inaccurate, is incomplete. It offers a new account of how data privacy interests have begun to clash at the margins with antitrust law, particularly in the digital economy.
Labor’s Antitrust Problem: A Case for Worker Welfare
Labor and antitrust have historically been at odds: workers have faced antitrust liability for organizing, as the market power of employers has grown. Motivated by recent developments in the gig economy, this Note argues that antitrust law must preserve the welfare of workers, and proposes reforms to achieve that vision.
The Strategies of Anticompetitive Common Ownership
This Article examines the mechanisms through which anticompetitive effects may arise when institutional investors hold stakes in competing firms. Most mechanisms, including cartel facilitation and passive failures to encourage competition, either lack empirical evidence or else are contrary to the interests of institutional common owners.
The Obsolescence of Advertising in the Information Age
Online search renders most advertising obsolete for conveying product information. Today, the only purpose of most advertising is to persuade consumers to purchase products. Because the information function of advertising is now obsolete, this Article argues that the Federal Trade Commission should renew its mid-twentieth century campaign against persuasive advertising.
Predatory Pricing: Limiting Brooke Groupe to Monopolies and Sound Implementation of Price-Cost Comparison
Responding to C. Scott Hemphill and Philip Weiser’s feature on Brooke Group predatory pricing, Edlin argues that in monopoly cases the greatest competitive danger likely results from above-cost pricing and that the Brooke Group safe harbor for above-cost pricing should not extend to monopolies.