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...
Antitrust
Gig workers constitute an ever-increasing share of the American workforce, yet they are not afforded the rights to strike and bargain collectively under the National Labor Relations Act (NLRA) due to their independent contractor status. Independent contractors who attempt to act collectively face antitrust liability, whereas employees who are covered by the NLRA enjoy an antitrust exemption for the same collective action, known as the “labor...
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”...
Various forces are driving healthcare providers to pursue integration to reduce prices and improve efficiency. Right now, the dominant payment model for healthcare is fee-for-service, in which a patient is charged for each individual service, test, or visit. An alternative model is value-based care, in which the emphasis is on value as opposed to volume. But to provide value-based care, health systems generally must be integrated enough to connect...
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...
As U.S. competition authorities ponder whether age-old antitrust laws should be modernized to apply to tech giants, a first-order question is: What existing antitrust laws apply to their conduct? A formerly formidable tool that has been defanged through lax enforcement is the Robinson–Patman Act (RPA). Passed by Congress in 1936, the RPA was drafted in response to a growing public concern that large chain stores were squeezing out small businesses....
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 […]
Recent advances in machine learning have reinforced the competitive position of leading online platforms. This Essay identifies two important sources of platform rivalry and proposes ways to maximize their competitive potential under existing antitrust law. A nascent competitor is a threatening new entrant that, in time, might become a full-fledged platform rival. A platform’s acquisition of a nascent competitor should be prohibited as an unlawful...
A handful of digital platforms mediate a growing share of online commerce and communications. By structuring access to markets, these firms function as gatekeepers for billions of dollars in economic activity. One feature dominant digital platforms share is that they have integrated across business lines such that they both operate a platform and market their own goods and services on it. This structure places dominant platforms in direct competition...
High drug prices are in the news. In some cases, such as AIDS-treating Daraprim and the life-saving EpiPen, the price increases dramatically. In other cases, which have received less attention, the price stays high longer than it should. Either way, anticompetitive behavior often lurks behind inflated prices. By delaying price-reducing generic competition, this behavior […]