For decades, antitrust enforcers ignored employer power in labor markets, adopting neoclassical assumptions that labor markets are competitive. Despite fanfare regarding recent labor antitrust enforcement, enforcers still deploy neoclassical assumptions and methods, targeting only proven deviations from a presumed competitive baseline, or infracompetitive wages and working conditions. The New Labor Antitrust deduces harms only from reduced competition...
Compelled interoperability can be a useful judicial or statutory remedy for dominant firms, including digital platforms with significant market power in a product or service. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth.
Given the wide variety of structures and business models for big tech, “interoperability”...
Nascent tech acquisitions have been the subject of renewed regulatory and antitrust scrutiny in recent years. These acquisitions can often be very small—hundreds of tech deals have occurred in the past decade below the current reporting threshold of $101 million—and the current merger review process of the Federal Trade Commission (FTC) often fails to capture the harms unique to these early-stage deals. This Note argues that the FTC should...
Introduction In Apple Inc. v. Pepper, the Supreme Court held that consumers who allegedly paid too much for apps sold on Apple’s App Store because of an antitrust violation could sue Apple for damages because they were “direct purchasers.” The decision sidesteps most of the bizarre complexities that have resulted from the Supreme Court’s 1977 […]
Antitrust courts often confront “mixed” conduct that has two contrasting effects, one harmful and the other beneficial. For example, a nationwide agreement not to pay college football players harms the players while benefiting fans of amateur sports. An important tool for analyzing mixed conduct is to compare the action to a hypothesized alternative and to ask whether the alternative action is “less restrictive” and hence less harmful....
In antitrust law, the state action doctrine allows states to take regulatory actions that would otherwise result in violations of the federal antitrust laws. Unfortunately, the Supreme Court has not always provided clear guidance in its state action jurisprudence, and lower courts have expressed frustration with this doctrinally confusing area of antitrust law. There is confusion among the lower courts over the relationship between state...
Most states have laws prohibiting corporations from owning healthcare practices or employing physicians, collectively forming the corporate practice of medicine doctrine (CPOM). CPOM laws were designed to ensure that licensed professionals, not corporate laymen, decide patient treatment.
Large corporations and private equity firms routinely circumvent CPOM laws by creating subsidiary companies that ostensibly “manage” healthcare practices....
In spring 2023, the Federal Deposit Insurance Corporation (FDIC) resolved three of the four largest bank failures in U.S. history. When the FDIC resolves failed banks, this Note argues, it (unselfconsciously) allocates coordination rights—that is, the right to legally permitted economic coordination. Specifically, by reflexively merging failed banks into larger banks, the FDIC adopts antitrust law’s preference for hierarchical firm-based coordination....
Across the economy, monopolists of all kinds are engaged in “conditional dealing.” This is the practice of unilaterally offering benefits and penalties, or bribes and threats, to induce trading partners to refrain from competing against the monopolist or from dealing with its rivals. Pharma giants offer discounts conditioned on “loyalty,” agricultural monopolists impose “exit penalties” for switching to rivals, and social networks offer...
From subtle shifts in the procedural mechanics of self-defense doctrine to substantive expansions of justified lethal force, legislatures are delegating larger amounts of “violence work” to the private sphere. These regulatory innovations layer on top of existing rules that broadly authorize private violence—both defensive and offensive—for self-protection and the ostensible maintenance of law and order. Yet such significant authority for...