Antitrust in the 21st Century

Course Introduction

In modern America, the organizations we most directly depend on are private corporations. We
predominantly live in private housing, travel by private automobiles, work in private firms, and
seek healthcare from private hospitals. The products we buy are usually produced by private
companies.
Private markets are not inherently good or bad. And decades of study in economics and other
fields demonstrate the strengths and flaws of the market system. On the one hand, harnessing
private initiative through market institutions has created the most prosperous societies on earth.
But markets have also contributed to a host of social problems, from rising inequality to
pollution. It is important to recognize that no market exists in a vacuum. Markets are structured
and supported by state and social institutions in countless ways. For example, the government
regulates weights and measures and bans fraud to ensure that market participants are able to
trade safely. Meanwhile, the environmental laws help to solve collective action problems.
This course is about one especially potent body of law regulating markets: antitrust (or
competition) law. It introduces students to antitrust law’s role in shaping American capitalism,
covering what a law student needs to know about antitrust doctrine as well as touching on
economics, history, politics, and modern problems in the U.S. economy.

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 Antitrust in the “Second Gilded Age”
Western democracies are experiencing extreme and rising levels of inequality at both the
corporate and household level, not seen in the U.S. since the first “Gilded Age” (roughly 1880–
1920). Lessened competition is likely contributing to these trends. But other factors such as
technological change, globalization, declining worker power, and new tax rules are probably
important causes too, and are also consistent with the data.

Reading
Required Reading
Jason Furman, Beyond Antitrust: The Role of Competition Policy in Promoting Inclusive Growth,
Searle Center Conference on Antitrust Economics and Competition Policy (September 16, 2016)
Jonathan B. Baker, Market power in the U.S. economy today, Washington Center for Equitable
Growth (March 2017)
Steven Berry, Martin Gaynor, and Fiona Scott Morton, Do Increasing Markups Matter? Lessons
from Empirical Industrial Organization, 33 Journal of Economic Perspectives—Number 3,
Summer 2019, pp. 44–68

Recommended Reading
Robert C. Lieberman, “Why the Rich are Getting Richer—American Politics and the Second
Gilded Age,” 90 Foreign Aff. 154 (2011).

Background Reading
Note: The background readings are for students interested in researching and writing
further about the topics in this syllabus. Otherwise, students should focus on the required
and recommended readings.
“Benefits of Competition and Indicators of Market Power,” Council of Economic Advisers Issue
Brief (April 2016)
Philippon, T. (2019). The Great Reversal: How America Gave Up on Free Markets. Cambridge,
MA: Harvard University Press.
Jacob Hacker and Paul Pierson. 2010. “Winner-Take All Politics: Public Policy, Political
Organization, and the Precipitous Rise of Top Incomes in the United States,” Politics and Society
38(2): 152–204.
Anna Stansbury and Lawrence Summers, The Declining Worker Power Hypothesis: An
Explanation for the Recent Evolution of the American Economy, NBER Working Paper 27193
Autor, David, Dorn, David, Katz, Lawrence F, Patterson, Christina, & Van Reenen, John.
(2020). The Fall of the Labor Share and the Rise of Superstar Firms. The Quarterly Journal of
Economics, 135(2), 645–709

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 History of Antitrust Thought
Antitrust enforcement arose in the U.S. at the turn of the 20th century as part of a political
reaction to the growing wealth and power of industry and banks in the first Gilded Age. After a
slow start, antitrust enforcement became more important in the 1930s, thanks in part to Thurman
Arnold at the Department of Justice’s Antitrust Division. Enforcement remained vigorous
through the 1970s, as evidenced by cases like the AT&T breakup.
In the 1980s, however, conservative and anti-interventionist approaches associated with the
Chicago school of law and economics substantially reduced antitrust enforcement. Chicago-
school theorists and judges often argued that economic theory supported a lack of intervention.
But these scholars rarely used the best available economic tools, instead relying on assumptions
about markets’ ability to self-correct. Yet even after mainstream economists discarded these
assumptions (or had never used them in the first place), legal precedents and political lobbying
kept them alive in the law.
The most recent intellectual movement in antitrust is the Neo-Brandesian school of thought. This
movement stresses the political origins of the antitrust laws and advocates for enforcement that
accounts for political and distributive concerns.
The history of antitrust law demonstrates that translating political motivations and economic
knowledge into legal structures can be challenging. A key factor is that courts are bound by
precedent, and jurisprudence moves very slowly. Thus, antitrust law can lag far behind the
political forces, intellectual movements, and economic evidence shaping it.

Reading
Required Reading
Brandeis, Louis D., The Regulation of Competition Versus the Regulation of Monopoly (An
address to the Economic Club of New York on November 1, 1912) (1912).
United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 164–65 (D.D.C. 1982) (section A2)
Naomi R. Lamoreaux, “The Problem of Bigness: From Standard Oil to Google,” Journal of
Economic Perspectives 33 (Summer 2019), 94–117.

Recommended Reading
Hovenkamp, Herbert and Scott Morton, Fiona M., Framing the Chicago School of Antitrust
Analysis (June 9, 2020). U of Penn, Inst for Law & Econ Research Paper No. 19–44, University
of Pennsylvania Law Review.
United States v. Addyston Pipe & Steel Co., 85 F. 271, 280–82 (6th Cir. 1898)

Background Reading
Lina M. Khan, The End of Antitrust History Revisited, 133 HARV. L. REV. 1655 (2020).
Naomi Lamoreux, The Great Merger Movement in American Business, 1895–1904, Cambridge
University Press (1985).

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Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age. New York, N.Y: Columbia
Global Reports. 2018.
William E. Kovacic and Carl Shapiro, Antitrust Policy: A Century of Economic and Legal
Thinking, Journal of Economic Perspectives, Vol. 14, Issue 1 (Winter 2000), pp. 43–60.
Phillips Sawyer, Laura. "U.S. Antitrust Law and Policy in Historical Perspective." Harvard
Business School Working Paper, No. 19–110, May 2019. (Revised September 2019.)
Shelanski, Howard, Antitrust and Deregulation, The Yale Law Journal, Vol. 127, Issue 7 (May
2018), pp. 1922–1961.
Weber Waller, Spencer, The Antitrust Legacy of Thurman Arnold, St-John’s Law Review
(2004) 78:3 St John’s L. Rev. 569.
John J. Flynn, The Reagan Administration's Antitrust Policy, " Original Intent " and the
Legislative History of the Sherman Act, 33 Antitrust Bull. 259, 265–90 (1988).
Robert H. Lande, Wealth Transfers as the Original and Primary Concern of Antitrust: The
Efficiency Interpretation Challenged, The Hastings Law Journal, Vol. 34, September 1982, pp.
65–151.
Gene M. Grassley, Thurman Arnold, Antitrust, and the New Deal, The Business History Review,
vol. 38, no. 2 (1964), pp. 214–231.

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 Antitrust Basics #1 — Agreements Among
Competitors
The easiest way to eliminate competition is to simply agree not to compete. It is also the most
illegal. If the antitrust laws ban anything, they ban companies from price fixing, bid rigging,
dividing up the market, agreeing not to compete on quality, and the like—in other words, from
forming cartels. In fact, these violations are so clearly anticompetitive, and require so little
economic analysis, that they are often “per se” illegal. And in the United States they can result in
criminal liability. This module addresses key elements of cartel enforcement actions under § 1 of
the Sherman Act.

Reading
Required Reading
Sherman Act § 1, 15 U.S.C. § 1
Pleading an antitrust violation
Interstate Circuit v. United States, 306 U.S. 208 (1939)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)
Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537 (1954)
What counts as a single firm?
Copperweld Corp. v. Independence Tube Corp., 467 US 752 (1984)
American Needle v. National Football League, 560 U.S. 183 (2010)
Restraints of trade
United States v. Addyston Pipe & Steel Co., 85 F. 271 (6th Cir. 1898), aff’d, 175 U.S. 211
(1899)
Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911)
Chicago Board of Trade v. United States, 246 U.S. 231 (1918)
United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940)
National Society of Professional Engineers v. United States, 435 U.S. 679 (1978)
California Dental Assn. v. FTC, 526 U.S. 756 (1999)
Polygram Holding, Inc. v. Federal Trade Commission, 416 F.3d 29 (D.C. Cir. 2005)
Christopher Leonard, Bloomberg, Is the Chicken Industry Rigged? (2017)

Recommended Reading
United States v. U.S. Gypsum Co., 438 U.S. 422 (1978)
United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290 (1897)
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United States v. American Tobacco Co., 221 U.S. 106 (1911)
Appalachian Coals, Inc. v. United States, 288 U.S. 344 (1933)
United States v. Trenton Potteries Co., 273 U.S. 392 (1927)
Palmer et al. v. BRG of Georgia, Inc., et al., 498 U.S. 46 (1990)
United States v. Joyce, 895 F.3d 673, 679 (9th Cir. 2018)
Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 (1959)
Broadcast Music, Inc. v. Columbia Broadcasting System, 441 U.S. 1 (1979)

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 Antitrust Basics #2 — Mergers and
Acquisitions
In the last module, we saw that while two companies may not agree to fix prices, single
companies can do so freely. Thus, if two companies each wish to charge the monopoly price,
they will be incentivized to merge. For antitrust enforcement to protect consumers from
monopoly power, the law must prohibit anticompetitive mergers.
Merger control arose to stop companies from trying to build market power by acquisition.
Originally, § 1 of the Sherman Act was used to address mergers. But in 1914, after Standard Oil,
Congress passed the Clayton Act. Ever since, this Act has been the primary antitrust law
governing American mergers.
In this module, we will discuss the substantive case law governing mergers. Yet the most
important actors in deciding whether a merger goes through are not the courts, but the antitrust
enforcement agencies. If the Department of Justice or Federal Trade Commission decides to
challenge a merger, it can delay the transaction for years, and that alone might be enough to
scuttle the deal. Thus, the most important reading in this module is not a case, but the agencies’
joint merger guidelines—their internal rules for when they will challenge a merger as
anticompetitive.
This module will also discuss antitrust procedure. Once a merger happens, it can be hard to
unwind the deal. Therefore, large mergers today must be cleared upfront, under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976.

Reading
Required reading
Merger basics
Clayton Act § 7, 15 U.S.C. § 18 (as amended by the Celler-Kefauver Amendment in
1950)
Brown Shoe Co. v. United States, 370 U.S. 294 (1962)
Enforcement guidance
Horizontal Merger Guidelines, U.S. Department of Justice and Federal Trade
Commission
Merger enforcement in practice
United States v. E.I. Du Pont de Nemours & Co. 351 U.S. 377 (1956)
Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451 (1992)
FTC v. Staples Inc. & Office Depot Inc., 190 F. Supp. 3d 100 (D.D.C. 2016)
Complaint, U.S. v. Anheuser-Busch InBev SA/NV and Grupo Modelo S.A.B. de C.V.

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Procedure
Hart-Scott-Rodino Antitrust Improvements Act of 1976

Recommended reading
FTC v. H.J. Heinz Co., 246 F.3d 708 (D.C. Cir. 2001)
United States v. Philadelphia National Bank, 374 U.S. 321 (1963)
Vertical Merger Guidelines, U.S. Department of Justice and Federal Trade Commission

Background reading
Rupprecht Podszun, The Arbitrariness of Market Definition and an Evolutionary Concept of
Markets, Antitrust Bulletin (2016), 61(1), 121–32.
United States v. Columbia Steel Co., 334 U.S. 495 (1948)
United States v. General Dynamics Corp., 415 U.S. 486 (1974)
United States v. H&R Block, Inc., 833 F. Supp. 2d 36 (D.D.C. 2011)
Steves & Sons Inc. v. Jeld-Wen Inc., 988 F.3d 690 (4th Cir. 2021)
United States v. E.I. Du Pont de Nemours & Co. 353 U.S. 586 (1957)

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 Antitrust Basics #3 — Monopolization
Even though a monopoly lowers consumer welfare compared to competition, in the United States
being a monopolist is not illegal. What is illegal under the antitrust laws is for a firm to
monopolize. Monopolization involves engaging in conduct that is not “competition on the
merits” in order to obtain market power and reduce competition even further. Section 2 of the
Sherman Act therefore bans certain types of unilateral conduct by firms with a large enough
share of the market to be successful. Monopoly maintenance is also covered by the Sherman Act.
But the conceptual line between legal competition and illegal monopolization can be hard to
define. As a result, unilateral-conduct antitrust cases can be challenging for enforcement
agencies.
Along with this reading, you may want to view the economics module on predatory pricing.

Reading
Required reading
Monopoly basics
Sherman Act § 2, 15 U.S.C. § 2
United States v. Aluminum Co. of America, 148 F. 2d 416 (2d Cir. 1945)
Exclusion
United States v. United Shoe Machinery Corp., 110 F. Supp. 295 (D. Mass. 1953)
United States v. Dentsply Int’l, Inc., 399 F.3d 181, 187 (3d Cir. 2005)
Predatory pricing
Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574 (1986)
Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993)
Tying
Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984)
United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001)
(Note: There is an entire module on this essential case! This is just a preview.)
Refusing to deal
Otter Tail Power v. United States, 410 U.S. 366 (1973)
Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 472 U.S. 585 (1985)
Verizon Commc’ns Inc. v. L. Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 411 (2004)
Price Squeezes
Pacific Bell Telephone Co. v. LinkLine Communications, Inc., 555 U.S. 438 (2009)

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Loyalty Rebates
Le Page’s Inc. v. 3M Co., 324 F.3d 141 (3rd Cir. 2003)

Recommended reading
Deutsche Telekom AG v. Commission, Case T-271/03 (2008)
United States v. American Telephone and Telegraph Co., 524 F. Supp. 1336 (D.D.C. 1981)
United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 1982 (D.D.C. 1982)

Background reading
Robinson-Patman Act, 15 U.S.C. § 13(a)
United States v. Grinnell Corp., 384 U.S. 563 (1966)
Utah Pie Co. v. Continental Baking Co., 386 U.S. 685 (1967)
Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., Inc., 549 U.S. 312 (2007)
Illinois Toolworks Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006)
United States v. Colgate & Co., 250 U.S. 300 (1919)
Cascade Health Solutions v. Peacehealth, 515 F.3d 883 (9th Cir. 2008)
Intel litigation saga on loyalty rebates in the EU: Cleary Gottleib Summary (2017)
Fiona M. Scott Morton & Zachary Abrahamson, Zachary, A Unifying Analytical Framework for
Loyalty Rebates, Antitrust L.J. 777–836. (2017)

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 Monopsony
Almost all antitrust cases target firms that possess power on the seller side of markets. But
antitrust law also targets monopsony power—consolidated power on the buyer side. For this
reason, antitrust law protects all ‘sides’ of, or trading parties in, a market. Recent research has
demonstrated that labor markets in particular have significant competition problems, and wages
often exhibit substantial markdowns due to monopsony power. Furthermore, employers engage
in practices (like no-poaching agreements and non-compete provisions) that hurt wages, working
conditions, benefits, and job mobility. This module explores monopsonies and the way that
courts have treated them in the United States, with a focus on labor.
The economic analysis of monopolies and monopsonies is symmetric. Why, then, have courts
and regulators been so much more concerned with monopolies? Is it an economic reason, or is it
something else?

Reading
Required Reading
NCAA v. Alston, 141 S. Ct. 2141 (2021)
Weyerhauser Co. v. Ross-Simmons Hardwood Lumber Co., Inc., 549 U.S. 312 (2007)
Toys R Us, Inc. v. FTC, 221 F.3d 928 (7th Cir. 2000)
In re Animation Workers Antitrust Litig., 123 F. Supp. 3d 1175, 1178 (N.D. Cal. 2015)
Clayton Act § 6, 15 U.S.C. § 17 (stating that “[t]he labor of a human being is not a commodity or
article of commerce” and exempting labor organizations from certain antitrust laws)
Suresh Naidu, Eric Posner & E. Glen Weyl, Antitrust Remedies for Labor Market Power, 132
HARV. L. REV. 537 (2018) (read section I; sections II–III are interesting but optional)

Recommended Reading
United States v. Topco Associates, Inc., 405 U.S. 596 (1972)
Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911) (in which John D.
Rockefeller used buyer power to squeeze competitors)
Marshall Steinbaum, Antitrust, the Gig Economy, and Labor Market Power, 82 L. & Contemp.
Probs. 45 (2019)

Background Reading
C. Scott Hemphill & Nancy L. Rose, Mergers that Harm Sellers, 127 Yale L. J. 2078 (2018)
Jonathan B. Baker, Joseph Farrell & Carl Shapiro, Merger to Monopoly to Serve a Single Buyer:
Comment, 75 ANTITRUST L. J. 637 (2008)
Marius Schwartz, Buyer Power Concerns And The Aetna-Prudential Merger, 5th Annual Health
Care Antitrust Forum (October 1999)

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FTC/DOJ Joint Guidance for Human Resources Professionals (2016)
United States v. Adobe Systems, Inc., Case No. 1:10-cv-01629 (D.D.C. September 24, 2010)
(Competitive Impact Statement)
Marina Lao, Workers in the “Gig” Economy: The Case for Extending the Antitrust Labor
Exemption, 51 U. CALIF., DAVIS L. REV. 1543 (2018)
Sanjukta Paul & Nathan Tankus, The Firm Exemption and the Hierarchy of Finance in the Gig
Economy, 16 U. ST. THOMAS L. J. 45 (2019)
Michael Lipsitz & Evan Starr, Low-Wage Workers and the Enforceability of Non-Compete
Agreements (October 19, 2020)

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 Regulation
Traditionally, antitrust regulation is reactive. It is done through litigation and involves
interpreting broadly worded laws after the fact. But governments can also pursue competition
policy through prospective economic regulation. Although the FTC can make prospective rules,
many regulations that affect competition come from industry-specific bodies, like the Federal
Communications Commission and Securities and Exchange Commission. These regulations may
still be enforced through litigation, or the threat of litigation, but they offer more specific ex ante
guidance to the industry that can be taken into account before companies act. Given current
competitive conditions and the slow pace of antitrust enforcement, policy makers are showing
increased interest in pro-competitive regulation in the technology sector.
In this module, you will learn how the antitrust laws interact with economic regulation. Consider
the strengths and weaknesses of each method, when each is appropriate, and whether they are
substitutes or complements. Consider how regulation can be designed to lower entry barriers and
intensity competition; consider also how regulation might be used to thwart competition.

Reading
Required Reading
Review Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398
(2004)
Credit Suisse Securities LLC v. Billing, 551 U.S. 264 (2007)
Gordon v. New York Stock Exchange, 422 U.S. 659 (1975)
U.S. Futures Exchange v. Board of Trade of the City of Chicago, 953 F.3d 955 (7th Cir. 2020)
Howard A. Shelanski, The Case for Rebalancing Antitrust Regulation, 109 Michigan L. Rev.
683, 687 (2011).

Recommended Reading
Tim Wu, Antitrust via Rulemaking: Competition Catalysts, 16 Colo. Tech. L.J. 33 (2017)
Andrea Coscelli, CEO of the CMA, “Regulation and competition enforcement – a combined
approach” (Fordham Annual Conference, 2018)
European Commission Digital Markets Act (“Regulation of the European Parliament and of the
Council on contestable and fair markets in the digital sector”) (15 December 2020)

Background Reading
Silver v. New York Stock Exchange, 373 U.S. 341 (1963)
Electric Trading Group, LLC v. Banc of America Secs., 588 F.3d 128 (2d Cir. 2009)
Howard Shelanski, Antitrust and Deregulation, The Yale Law Journal, Vol. 127, Issue 7 (May
2018), pp. 1922–1961.

13
Robert J. Jackson, Jr., Speech: “Competition: The Forgotten Fourth Pillar of the SEC’s Mission”,
Washington D.C., Oct. 11, 2018.
Jacob A. Kling, Securities Regulation in the Shadow of the Antitrust Laws: The Case for a Broad
Implied Immunity Doctrine (2011) 120:4 Yale L J 910.
Samuel N. Weinstein, Financial Regulation in the (Receding) Shadow of Antitrust, Temple Law
Review, Vol, 91 No.3, pp. 447–512.

14
 Airlines and Pricing Abuses
The American airline industry is a wonderful laboratory for students interested in regulation and
competition. Until the late 1970s, airlines were regulated by the Civil Aeronautics Board. The
Board directly regulated competition by setting minimum fares and controlling routes. But then
the industry was deregulated by congress and airlines could make choices over fares and routes.
Soon there was an influx of entry and competition. Prices (and wages) went down, and the
industry adopted the hub-and-spoke route model that is still in use.
More recently, however, competition has again diminished—but for different reasons. The
Department of Justice allowed a wave of mergers while the Department of Transportation has
permitted code-sharing that often achieves the same goal as a merger, and at the same time failed
to protect consumers’ shopping environment from drip pricing, opaque prices, and high search
costs. Combined with two drastic drops in demand (the financial crisis and covid-19), these have
reduced competition in airlines through fewer competitors, capacity reductions and tacit
collusion. Airlines have also been accused of predatory pricing to exclude low-cost carriers. The
airline industry is a laboratory for studying antitrust; over the decades airlines have provided
examples of many anticompetitive tactics prohibited by the antitrust laws.

Reading
You may wish to review the readings on predatory pricing from the monopolization module.

Required reading
James B. Stewart, Discipline for Airlines, Pain for Fliers, The New York Times (June 11, 2015)
United States v. AMR Corp., 335 F. 3d 1109 (10th Cir. 2003)
Complaint, United States of America v. U.S. Airways Group, Inc. and AMR Corp. (Aug. 13,
2013)
Severin Borenstein, Rapid Price Communication and Coordination: The Airline Tariff
Publishing case (1994), in The Antitrust Revolution: Economics, Competition, and Policy 4
(2004)

Recommended reading
Spirit Airlines, Inc. v. Northwest Airlines, Inc., 431 F.3d 917 (6th Cir. 2005)

Background reading
Deregulation
Gale Moore, Thomas. “U.S. Airline Deregulation: Its Effects on Passengers, Capital, and
Labor.” The Journal of Law and Economics, vol. 29, no. 1, Apr., 1986, p. 1-29.
HeinOnline.

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Tacit collusion
Posner, Richard A. (1969). Oligopoly and the Antitrust Laws: A Suggested
Approach. Stanford Law Review, 21(6), 1562-1606.
Mergers
Carlton, Dennis, Mark Israel, Ian MacSwain, and Eugene Orlov, “Are legacy airline
mergers pro- or anti-competitive? Evidence from recent U.S. airline mergers,”
International Journal of Industrial Organization 62 (2019): 58–95.
On predatory pricing:
Areeda, Philip E. and Donald F. Turner, “Predatory Pricing and Related Practices Under
Section 2 of the Sherman Act,” Harvard Law Review 88 (February 1975): 697–733.
Bolton, Patric, Joseph F. Brodley and Michard Riordan, “Predatory Pricing: Strategic
Theory and Legal Policy,” Georgetown Law Journal 88 (August 2000): 2239–2330.
Borenstein, Severin, “The Evolution of U.S. Airline Competition,” Journal of Economic
Perspectives 6 (Spring 1992): 45–73.
Elzinga, Kenneth G. and David E. Mills, “Predatory Pricing and Strategic Theory,”
Georgetown Law Journal 89 (August 2001): 2475–2494.

16
 Microsoft: Tying and Exclusive Dealing
In 1998, the Department of Justice and 20 state attorneys general sued Microsoft for antitrust
violations. They alleged that Microsoft had bundled its programs (especially its browser, internet
explorer) with its operating system, resulting in illegal monopolization. The lawsuit became one
of the highest-profile antitrust enforcement actions in U.S. history. Microsoft is a foundational
monopolization case and shows how courts have approached network effects and nascent
competition. But it did not start a trend; Microsoft remained the most recent federal antitrust case
involving digital platforms until the DOJ’s lawsuit over Google search in 2020.

Reading
Required Reading
You may wish to review the readings on tying and exclusion (Dentsply) from the monopolization
module.
United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) (en banc) (Section VI on Judicial
Misconduct is optional)
W. Page & J. Lopatka, The Microsoft Case: Antitrust, High Technology, and Consumer Welfare
ix–xiii (2007).
Andrew I. Gavil & Harry First, The Microsoft Antitrust Cases 309–330 (2014).
C. Scott Hemphill & Tim Wu, Nascent Competitors, 168 U. Penn. L. Rev. 1879, 2020; New
York University Law & Economics Research Paper No. 20–50 (2020)

Recommended Reading
Daniel L. Rubinfeld, Maintenance of Monopoly: U.S. v. Microsoft (2001), in The Antitrust
Revolution (John E. Kwoka, Jr. & Lawrence J. White eds., 17th ed.) (pp. 514–34).
McWane, Inc. v. FTC, 783 F.3d 814 (11th Cir. 2015)
Feng Zhu and Marco Iansiti, Why Some Platforms Thrive and Others Don’t, Harvard Business
Review (2019).

17
 Healthcare
The U.S. healthcare system is primarily composed of private entities, many of which are for-
profit businesses. By international standards, it has inferior performance: extremely high prices,
limited access, variable quality, and deficient outcomes for many patients. The poor performance
is due in part to substantial consolidation and a lack of competition in local markets for care and
insurance. This is partly driven by captured political actors who design regulations that favor
firms. However, antitrust enforcement has a key role to play in limiting consolidation and market
power, and thereby reducing prices and improving quality.

Reading
Required reading
In re Evanston Northwestern Healthcare Corp. & ENH Medical Group, Inc., FTC Matter No.
0110234, Dkt. No. 9315
● Initial Decision of Chief Administrative Law Judge Stephen McGuire (Skim
introduction: p 1–5, Analysis and conclusions of law, 128–211)
● Brief Amicus Curiae of Economics Professors
● Opinion of the Commission on Remedy
FTC v. Phoebe Putney Health Sys., 568 U.S. 216 (2013)
United States v. Anthem, Inc., 855 F.3d 345 (D.C Cir. 2017) (note Judge Kavanaugh’s dissent)
Thomas G. Wollmann, How to Get Away with Merger: Stealth Consolidation and Its Effects on
U.S. Healthcare, NBER Working Paper 27274.

Recommended reading
United States v. CVS Health Corp., 407 F. Supp. 3d 45 (D.D.C. 2019)
United States v. Blue Cross Blue Shield, 809 F. Supp. 2d 665 (E.D. Mich. 2011)

Background reading
Dafny Leemore, Kate Ho & Robin S. Lee, The Price Effects of Cross-Market Hospital Mergers,
NBER Working Paper No. 22106 (Issued in March 2016, Revised in October 2018)
Statement of the Federal Trade Commission In the Matter of Cabell Huntington Hospital, Inc.,
Docket No. 9366, July 6, 2016
This Tactic Helps Hospitals Ease Merger Scrutiny — Antitrust regulators eye “certificates of
public advantage” (MedPage Today April 1, 2021)
David Dranove & Andrew Sfekas, The Revolution in Health Care Antitrust: New Methods and
Provocative Implications, Milbank Quarterly (2009)

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 Pharmaceuticals
Pharmaceutical companies are recurrent antitrust offenders. A lack of competition in the
pharmaceutical industry has led to higher prices and has stifled innovation that otherwise would
benefit consumers. Some of the antitrust issues are typical of the ones you’ve seen so far. But
pharmaceutical companies are subject to significant regulation—though usually not price
regulation—and are distinctively reliant on intellectual property. This combination has created
antitrust issues of its own, as you will learn when reading about the “pay for delay” cases in this
module.

Reading
Required reading
FTC v. Actavis, Inc., 570 U.S. 136 (2013) (read 1–9, 14–20 of the slip opinion)
New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 653 (2d Cir. 2015)
Pfizer Inc. v. Johnson & Johnson, 333 F. Supp. 3d 494 (E.D. Pa. 2018) (read II and III.B)
Colleen Cunningham, Florian Ederer & Song Ma, Killer Acquisitions, 129 J. Political Economy,
649–702 (2021) (read the Introduction, Table 2, and Figure 5)
DOJ Antitrust Division Spring Update 2021, Generic Drugs Investigation Targets
Anticompetitive Schemes
Fed. Trade Comm’n v. Shire ViroPharma, Inc., 917 F.3d 147 (3d Cir. 2019) (read Part I on the
use of repeated citizen’s petitions to delay generic entry)
FTC Amicus Brief, Mylan v. Celgene, June 17, 2014, (on the restriction of generic entry through
the use of Risk Evaluation and Mitigation Strategies (REMs))

Recommended reading
Congressional Research Service, The CREATES Act of 2019 and Lowering Drug Prices: Legal
Background & Overview
Aaron S. Edlin, C. Scott Hemphill, Herbert Hovenkamp, and Carl Shapiro, Activating Actavis,
Antitrust Mag. 16 (2013)

Background reading
Abbott Lab’ys v. Teva Pharms. USA, Inc., 432 F. Supp. 2d 408, 420 (D. Del. 2006)
Carrier, Michael A, & Shadowen, Steve D. (2016). Product hopping: A new framework. The
Notre Dame Law Review, 92(1), 167.
AbbVie Wins First Round in Humira Antitrust Lawsuit, (Jan. 6, 2021)

19
 Agriculture
Farmers were critical to passing America’s first antitrust laws—in 1888, Iowa became the first
state to pass an antitrust act. But today, farmers are again facing competition problems. As recent
cases have revealed, many farmers face competitive threats both from their upstream suppliers
and their downstream purchasers. This is because both the upstream and downstream markets
have become concentrated, largely due to mergers. As a result, end consumers can face higher
prices while farmers are paid less for farm output and pay more for farm inputs. Recent antitrust
actions have uncovered collusion, information sharing, and other anticompetitive practices in
agricultural markets.

Reading
Required reading
Complaint, United States v. Bayer AG & Monsanto, 18-cv-124 (D.D.C. 2018)
Christopher Leonard, Keynote Address, Big Ag and Antitrust Conference, Yale Thurman Arnold
Project & Law, Ethics, and Animals Program at Yale (2021)
Plea Agreement, United States v. Pilgrim’s Pride Corp., 20-cr-330 (D. Col. 2021) (pages 1–5)
Dave Dickey, Courts need to end Big Meat data sharing, Investigate Midwest, June 9, 2021
Complaint, United States v. Dow Chemical Co., (D.D.C. 2017)

Recommended reading
Jesse Hirsch, As Farmers Fight for the Right to Repair Their Tractors, an Antitrust Movement
Gains Steam, (Apr. 8, 2019) (Note also the Biden Administration Executive Order on
Competition, which directs the FTC to consider rulemaking to support a right to repair, available
here)

Background reading
Christopher Leonard, Bloomberg, Is the Chicken Industry Rigged? (2017)
Leonard, Christopher. (2014). The Meat Racket. Riverside: Simon & Schuster.
“Farm Bureau,” 60 Minutes (April 9, 2000)
Part 1: [Link]
Part 2: [Link]
Anthony Pahnke, Antitrust Legislation Is Essential to Racial and Economic Justice in
Agriculture, Truthout (Feb. 14, 2021)
Farm, Consumer and Competition Groups Oppose JBS-Cargill Pork Merger Deal Would
Concentrate Buyer and Seller Power in Pork Industry (July 30, 2015)
Max Miller, CPI Podcast, America Needs Farmers and Farmers Need Better Antitrust Law,
Competition Policy International

20
 Joint Ventures
The formation of joint ventures by independent companies is long-standing. These collaborations
can help consumers by, for example, setting a common product standard or allowing the creation
of a product that neither party could produce alone. But joint ventures can also lessen
competition through coordination or less entry or choice. Antitrust decisions have tried to
balance these effects.
The stakes of this issue have increased in the last decade, when investors have become
increasingly concerned with whether the companies they own promote environmental, social,
and governance goals. In Europe, for example, there is a desire to allow companies to coordinate
on “green” standards with their competitors. But these agreements carry the risk of being
anticompetitive.

Reading
Required reading
Texaco Inc. v. Dagher, 547 US 1 (2006)
FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986)
Analysis of Agreement Containing Consent Orders to Aid Public Comment, In the Matter of
Novartis AG, File No. 141-0141, Docket No. C-4498 (describes a challenge of a recent proposed
joint venture involving joint ownership by the only two branded nicotine patch producers, and
the divestiture remedy)
An Open Letter to the Global Legal Community, various bank General Counsels, September 30,
2020
OECD (2020), Sustainability and Competition, OECD Competition Committee Discussion Paper

Background reading
Business Review Letters
DOJ Response to the Clearing House Payments Company (September 21, 2017)
DOJ Response to Eli Lilly Business Review Letter (July 23, 2020)
Antitrust Guidelines for Collaborations Among Competitors (FTC & DOJ) (April 2000)

21
 Common Ownership
Under the merger statutes, a single investor could not buy every company in a market. But what
if overlapping sets of investors buy individually small, but collectively large, stakes of every
company in a market? In many sectors, that is the status quo: a few large investment firms—
companies like Fidelity, BlackRock, and Vanguard—collectively own large portions of the
publicly traded firms that comprise most of an industry. In these industries, the common owners
should not rationally want their companies to compete hard against each other. Instead, their
interest is for the companies to soften competition, whether through changes in prices, R&D,
capacity, entry decisions, or some other dimension of competition.
Recent empirical scholarship suggests that large investors are succeeding in their goal—although
it is not clear exactly how. This scholarship suggests that “common ownership” is a pressing
modern antitrust issue.

Reading
Required reading
Azar, Schmaltz & Tecu, The Anticompetitive Effects of Common Ownership (2018) (Introduction
and Section 6, table 1)
Einer Elhauge, How Horizontal Shareholding Harms Our Economy—and Why Antitrust Law
Can Fix It, 10 Harv. Bus L. Rev. 207, 209–268 (2020) (read Parts III and IV)
Fiona Scott Morton & Herbert Hovenkamp, Horizontal Shareholding and Antitrust Policy, 127
Yale L. J. (2018) (read 2026–2047).

Recommended reading
Eric A. Posner, Fiona M. Scott Morton, & E. Glen Weyl, A Proposal to Limit the Anti-
Competitive Power of Institutional Investors, Antitrust L.J. (2017).
Backus, Colon, & Sikinson, The Common Ownership Hypothesis: Theory and Evidence,
Economic Studies at Brookings (January 2019)
Speech by FTC Commissioner Noah Joshua Phillips, “Taking Stock: Assessing Common
Ownership,” Concurrences Review and NYU Stern: The Global Antitrust Economics
Conference, June 1, 2018

Background reading

“Common Ownership, Competition, and Top Management Incentives” with Miguel

Antón, Mireia Giné, and Martin Schmalz,.

“Innovation: The Bright Side of Common Ownership?” with Miguel Antón, Mireia Giné,
and Martin Schmalz

22
 Vertical Restraints
Vertical restraints are agreements between firms at different levels of production or distribution.
These agreements can raise competitive concerns, for example foreclosing a direct competitor by
withholding a product or customer in the related market. Foreclosure causes higher prices,
weaker competition, or exclusion in that part of the supply chain. But many other vertical
agreements are justifiable business practices. For example, they can prevent distributors from
free-riding on others’ promotional efforts. Thus, vertical restraints are not per se illegal, but must
be analyzed under the rule of reason. Antitrust practitioners report that vertical restraints are
harder to challenge in the U.S. than in Europe.

Reading
Required reading
Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977)
Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007)
Monsanto Co. v. Spray-Rite Svc. Corp., 465 U.S. 752 (1984)
EU Commission complaint against Expedia and [Link] (2019)

Recommended reading
United States v. Sealy, Inc., 388 U.S. 350 (1967)

Background reading
“Antitrust Guidelines for Collaborations Among Competitors” issued by the FTC and DOJ
(available at [Link]
ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012)
Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451 (1992)
Comparative law
Tooltechnic Systems (Aust) Pty Ltd - Authorisation - A91433 (Australian Competition
and Consumer Commission 2014)
Case C-306/96 Javico International and Javico AG v Yves Saint Laurent Parfums SA
(YSLP) (28 April 1998)
Case C-439/09 Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité de la
concurrence and Ministre de l’Économie (General Court, 13 October 2011)
Case C‑230/16 Coty Germany GmbH v Parfümerie Akzente GmbH (General Court, 6
December 2017)

23
 Most-Favored Nation Clauses
When a company signs a most-favored nation clause, it promises that it will give a trading
partner the best possible price. It either does not offer a lower price to a competitor, or must
compensate the original partner if it does. These clauses can harm competition due to their
impact on equilibrium prices and entry.
MFNs are a type of Contract that References Rivals because a buyer’s price depends on the
prices paid by its head to head rivals. This means an MFN is formally a vertical contract but it
has horizontal effects, making it more dangerous to competition. A buyer with MFN protection,
for example, mandates that the seller (e.g. a hotel or ebook publisher) charge the same price to its
rivals (other buyers) as to it. This type of provision reduces price competition, can exclude
entrants with different business models, and can entrench the power of certain platforms. As a
result, MFN clauses have become an important area of antitrust enforcement. This module will
focus on the use of these clauses in the digital economy.

Reading
Required Reading
U.S. v. Apple, 791 F. 3d. 290 (2015)
Jonathan B. Baker & Judith A. Chevalier, The Competitive Consequences of Most-Favored-
Nation Provisions, 27 Antitrust 20.
Steven C. Salop & Fiona Scott Morton, Developing an administrable MFN enforcement policy.
27 Antitrust 15 (2013).

24
 Cartels and Leniency
Leniency programs are key tools of enforcement agencies for tackling cartels. Under leniency
programs, cartel participants that report anticompetitive agreements to enforcers can avoid fines
and criminal sanctions. These programs help destabilize cartels by incentivizing participants to
inform enforcers about the cartel.

Reading
Required Reading
US DOJ Leniency FAQ pp. 1–5, 14–19, 32–35
Deputy Assistant Attorney General Richard A. Powers Delivers Remarks at the 13th
International Cartel Workshop (February 19, 2020)
Strategic Leniency and Cartel Enforcement, American Economic Review, Vol. 99, No. 3, 750-68
(2009).

Recommended Reading
International Competition Network: Guidance on Enhancing Cross-Border Leniency
Cooperation (June 2020)

25
 Behavioral Economics and Consumer
Protection
Neoclassical economic theory assumes that people perfectly optimize each decision as if they
had perfect information, ideal incentives, and plenty of time. But countless studies have proven
that assumption false. Consumers have systematic biases that lead them to act in different ways
than this perfect economic model predicts. Firms can exploit these behavioral biases to gain
more market power than what would be possible if consumers were not impatient, incompletely
informed, and susceptible to defaults, among others. For example, technology companies often
argue that they are constrained in raising prices, because customers can easily switch providers:
“competition is only a click away.” But this claim ignores a large empirical literature showing
how customers really act. While reading this module, consider how behavioral economics should
affect antitrust issues such as market definition, switching costs, and tying.

Reading
Required reading
Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451 (1992)
Complaint, United States v. Google LLC, 20-cv-3010 (D.D.C. Oct. 20, 2020)
Google Paid Apple Billions to Dominate Search On iPhones, NPR, October 22, 2020
Office of Fair Trading, “What Does Behavioral Economics Mean for Competition Policy?”
(March 2010)
Competition & Markets Authority, “Modernising the Energy Market,” June 24, 2016.
James C. Cooper and William E. Kovacic, Behavioral Economics and Its Meaning for Antitrust
Agency Decision Making, 8 J. LAW, ECONOMICS & POLICY (2012)

Recommended Reading
Commission Decision of 24 May 2004 relating to a proceeding pursuant to Article 82 of the EC
Treaty and Article 54 of the EEA Agreement against Microsoft Corporation (Case COMP/C-
3/37.792 — Microsoft)
Alan Devlin & Michael Jacobs, The Empty Promise of Behavioral Antitrust, HARVARD J. OF L. &
PUB. POLICY 1009 (2013)
Niels J. Rosenquist, Fiona M. Scott Morton, and Samuel Weinstein, Addictive Technology and
Its Implications for Antitrust Enforcement (February 22, 2021)

Background Reading
Maurice Stucke (2014). How Can Competition Agencies Use Behavioral Economics? 59
Antitrust Bulletin 695–742.
Max Huffman. Marrying Neo-Chicago with Behavioral Antitrust (June 6, 2012). Antitrust Law
Journal, Vol. 78, 2012.
26
Avishalom Tor, Illustrating a Behaviorally Informed Approach to Antitrust Law: The Case of
Predatory Pricing, 18 Antitrust 52 (2003–2004)
Roger Van den Bergh. Behavioral Antitrust: Not Ready for the Main Stage, Journal of
Competition Law & Economics, 9(1), 203–229.
Joshua D. Wright, “The Antitrust/Consumer Protection Paradox: Two Policies at War with Each
Other,” The Yale Law Journal, Vol. 121, p. 2217 (2012)
Competition & Markets Authority, “Market Studies and Market Investigations: Supplemental
guidance on the CMA’s approach”, January 2014 (revised July 2017).

27
 Essential Facilities and Refusals to Deal
Sometimes a company controls a resource that other companies also need in order to access a
market and create effective competition. The incumbent could have created the resource through
its investments, have purchased it, or have control over it by historical accident. Antitrust law has
struggled to create clear rules around when companies have a “duty to deal,” or share access or
resources, with rivals. In principle the law aims to protect the incentive to invest in a business
while still ensuring that markets remain competitive. In practice, in the U.S., courts have shied
away from imposing on companies a duty to deal with each other (Colgate), especially following
Trinko. European competition law is more willing to entertain essential facilities arguments
because, under EU law, dominant firms have an affirmative duty to enable competition. See IMS
Health. Today, some tech platforms have monopolies on data and are important gatekeepers to
information. Should this cause American courts to rethink the doctrine?

Reading
Required Reading
United States v. Colgate & Co., 250 U.S. 300 (1919)
Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 472 U.S. 585 (1985)
Verizon Commc’ns Inc. v. L. Offs. Of Curtis V. Trinko, LLP, 540 U.S. 398, 411 (2004)
AREEDA AND HOVENKAMP, ANTITRUST LAW: AN ANALYSIS OF ANTITRUST PRINCIPLES AND
THEIR APPLICATION 770–774.

Recommended Reading
Otter Tail Power Co. v. United States, 410 U.S. 366 (1973)
Case C-418/01 IMS Health [2004] 4 CMLR 28

Background Reading
Phillip Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 ANTITRUST
L.J. 841 (1989)
Nikolas Guggenberger, Essential Platforms, 24 STAN. TECH. L. REV. 237 (2021)
United States v. Terminal R.R. Ass’n, 224 U.S. 383 (1912)
Donna Patterson, Robert Pitofsky & Jonathan Hooks, The Essential Facilities Doctrine Under
United States Antitrust Law, 70 Antitrust L.J. 443 § II (2002)
Spencer Weber Waller, Areeda, Epithets, and Essential Facilities, 2008 Wis. L. Rev. 359, 359–
60 (2008)

28
 Digital Platforms
This module contains several submodules on antitrust issues with digital platforms.

Intro: American Express

Concern around digital platforms is driving calls for greater antitrust enforcement. But digital
platforms present numerous tricky problems for antitrust law, and the law is still developing its
response to these business models. A particularly challenging question in digital platforms is
how to analyze two-sided markets, both in terms of market definition and conduct. The Supreme
Court’s decision in Amex provides U.S. antitrust law’s current approach to this question, but this
decision has been widely criticized by the antitrust community

Required Reading
Ohio v. American Express Co., 138 S. Ct. 2274 (2018)
American Antitrust Institute, We’ve Seen Enough: It Is Time to Abandon AmEx and Start Over
on Two-Sided Markets (2020).

Recommended Reading
A. Douglas Melamed & Nicolas Petit, The Misguided Assault on Consumer Welfare Standard in
the Age of Platform Markets, 54 REV. IND. ORG. 741 (2019) (25–33)

Background Reading
Stigler Center Committee for the Study of Digital Platforms, Market Structure and Antitrust
Subcommittee Report (57–79 and 87–92 on platforms) (2019)
J. BAKER, THE ANTITRUST PARADIGM: RESTORING A COMPETITIVE ECONOMY 125–38 (2019).

29
 Google
Many of Google’s business practices have come under antitrust scrutiny. This module explores
challenges related to Google Search and Advertising.

Required Reading
Amended Complaint, United States v. Google LLC, 20-cv-2010 (Jan. 15, 2021)
Statement of the Federal Trade Commission Regarding Google’s Search Practices In the Matter
of Google Inc. (No. 111-0163, 2013)
Makan Delrahim, Assistant Attorney General, “I’m Free”: Platforms and Antitrust Enforcement
in the Zero-Price Economy, Remarks at Silicon Flatirons, Univ. of Colo. Law School (Feb. 11,
2019)

Recommended Reading
Complaint, Texas v. Google LLC, 20-cv-957 (E.D. Tex. Dec. 16, 2020)
Fiona Scott Morton & David Dinelli, Roadmap for a Monopolization Case Against Google
Regarding the Search Market, Omidyar Network (2020)
Fiona Scott Morton & David Dinelli, Roadmap for a Digital Advertising Monopolization Case
Against Google, Omidyar Network (2020)
Case AT.39740 — Google Search (Shopping) Summary Decision

Background Reading
Statement of Federal Trade Commission Concerning Google/DoubleClick FTC File No. 071-
0170, December 20, 2007
In the matter of Google/DoubleClick F.T.C. File No. 071-0170 Dissenting Statement of
Commissioner Pamela Jones Harbour, December 20, 2007
Competitive Impact Statement, U.S. v. Google Inc., No. 1:11-cv-00688 (filed April 8, 2011)
(Google acquisition of ITA software)

30
 Facebook
Antitrust enforcement around Facebook concerns its acquisition of competitors, self-
preferencing, and erosion of users’ privacy.

Required Reading
Amended Complaint, FTC v. Facebook, Inc., 20-cv-3590 (D.D.C. Aug. 19, 2021)
Complaint, New York et al. v. Facebook, Inc., 20-cv-3589 (D.D.C. Dec. 9, 2020)Fiona Scott
Morton & David Dinelli, Roadmap for an Antitrust Case Against Facebook, Omidyar Network
(June 2020)

Background Reading
FTC v. Facebook, Inc., 2021 U.S. Dist. LEXIS 119540 (D.D.C. June 28, 2021)
Rosenquist, Niels J. and Scott Morton, Fiona M. and Weinstein, Samuel, Addictive Technology
and Its Implications for Antitrust Enforcement (February 22, 2021),
[Link]
Dina Srinivasan The Antitrust Case Against Facebook: A Monopolist’s Journey Towards
Pervasive Surveillance in Spite of Consumers’ Preference for Privacy, 16 Berk. Bus. L. J. 39
(February 2019)

31
 Amazon and Apple
Private litigation has alleged that Amazon foreclosed competition between ecommerce platforms
through MFN clauses (Frame-Wilson v. Amazon). In the media, Amazon is described as
excluding competitors ([Link]) and steering customers to its own products.
Apple’s recent antitrust violations involve forming anticompetitive agreements with publishers
around the distribution of e-books and forming no-poach agreements with competitors over
employees. Alleged antitrust violations include squeezing app developers over app store fees.

Required Reading
Apple v. Pepper, 139 S. Ct. 1514 (2019) (Section I).
U.S. v. Apple, 791 F.3d. 290 (2d. Cir. 2015)
Complaint, Frame-Wilson et al v. [Link] Inc., 20-cv-00424 (W.D. Wash.)
Commission Opens Investigations into Apple’s App Store Rules (European Commission Press
release, June 2020)
Epic Games v. Apple complaint (August 2020)
European Commission, Statement of Objections to Apple over Practices Regarding Apple Pay
(2022).

Background Reading
Lina M. Khan, Amazon’s Antitrust Paradox. 126 YALE L.J. 710, 746–780

32
 Remedies
Antitrust remedies come in many forms, including fines or damages for injured parties as well as
structural or behavioral remedies designed to maintain or restore competitive conditions. This
module will analyze the efficacy of various antitrust remedies, from “breaking up” large
corporations to more modest regulations designed to modify the conduct of corporations.
Students should note the downside of behavioral remedies which are ultimately instructions to
the firm to take actions that are not in the firm’s financial or strategic interest. In an environment
of asymmetric information and slow-moving enforcers, it is an open question how well
behavioral remedies can perform in many settings. Moreover, behavioral remedies require
ongoing oversight by both the enforcement agency and the courts. Structural remedies do not
exhibit these flaws but are more disruptive.

Reading
Required Reading
Steves & Sons, Inc. v. Jeld-Wen, Inc., 988 F.3d 690 (4th Cir. 2021) (divestiture remedy)
United States v. Microsoft Corp., 253 F.3d 34, 105 (D.C. Cir. 2001) (Section V only).
Competitive Impact Statement, U.S. v. AB In-Bev/Grupo Modelo, 13-cv-127 (D.D.C.)
Michael Kades & Fiona Scott Morton, Interoperability as a Competition Remedy for Digital
Networks, Washington Center for Equitable Growth (2020)

Recommended Reading
Competitive Impact Statement, U.S. v. Google Inc., 11cv688 (D.D.C.)

33
 Federalism
Most states have their own antitrust laws, and states can also enforce federal antitrust laws. State-
level antitrust enforcement has been praised for addressing local antitrust problems overlooked
by federal enforcement agencies, but has also been accused of parochialism. State attorneys
general may bring their own case when they disagree with federal enforcement (as in Valero),
and they can also collaborate with one another to bring cases affecting multiple states (as in the
T-Mobile/Sprint merger and the Google search case). This has been common in antitrust
litigation against technology platforms. States sometimes have their own, stricter, antitrust laws
and also have the ability to protect local conduct from federal enforcement. In this module, we
will look at state-level antitrust enforcement.

Reading
Required Reading
FTC v. Phoebe Putney Health Sys., 568 U.S. 216 (2013)
Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991)
Richard A. Posner, Federalism and the Enforcement of Antitrust Laws by State Attorneys
General, 2 GEO. J. L. & PUB. POL’Y 5, 8–9 (2004).
Renata B. Hesse, Protecting Competition Across 50 United States: Advocacy and Cooperation in
Antitrust Enforcement (2016)
New York v. Actavis, 787 F.3d 638 (2d Cir. 2015)

Recommended Reading
Statement of the Federal Trade Commission In the Matter of Cabell Huntington Hospital, Inc.,
Docket No. 9366, July 6, 2016
Comments of Stephen D. Houck and Kevin J. O’Connor on the States’ Role in the Microsoft
Case Re: Working Group on Enforcement Institutions (2019).
Big Tech’s Unlikely Next Battleground: North Dakota, N.Y. TIMES (Feb. 14, 2021)

Background Reading
United States v. Long Island Jewish Med. Ctr., 983 F. Supp. 121 (E.D.N.Y. 1997)

34
 Antitrust and Political Economy
The theoretical foundations of antitrust law are contested. In the 1970s, legal scholars and
economists at the University of Chicago attempted to use economic principles to reduce
government intervention in markets and reduce the level of antitrust enforcement. That
movement was very successful in the United States and greatly impacted judges and
jurisprudence.
But advancements in legal and economic theory long ago led most antitrust academics to
abandon the conclusions (less enforcement is better) of the Chicago School. Modern economics
can explain and measure a far broader set of competition problems than in the past. Today, many
argue the need for well-founded enforcement to tackle a range of competition problems that have
grown up in the last decades. Neoliberal approaches have nonetheless stayed alive in policy and
judicial circles, often propped up by the firms that stand to gain from keeping their market
power.
More recently, political economists and critical legal theorists have started to reexamine the
theoretical foundations of antitrust. These approaches emphasize the political nature of antitrust
law and build on a broader literature in comparative political economy and economic history.
This work features a few core themes:
1) Questions of private power and freedom from private coercion are fundamental to
antitrust and market regulation.
2) Legal institutions construct markets through a political process. These institutions shape
market competition in ways that favor certain groups. Legal structures are often more
important determinants of market structures than economic forces.
3) Economic approaches pay insufficient attention to the normative foundations of markets.
4) Markets rely on a balance between cooperation and competition. Institutions can structure
cooperation and competition in different ways, with different distributional implications.
5) Insufficient attention to the distributional implications of market activity can threaten
democracy and social cohesion.

Reading
Required Reading
Lina Khan, The New Brandeis Movement: American’s Antimonopoly Debate, 9 J. EURO.
COMPETITION L. & PRAC. (2018).
Jonathan Baker, Finding Common Ground Among Antitrust Reformers (2022).
Hiba Hafiz, Labor Antitrust’s Paradox, 87 U. CHI. L. REV. 381 (2020)
Herbert J. Hovenkamp, Is Antitrust’s Consumer Welfare Principle Imperiled? (2019)
Robert Pitofsky, Political Content of Antitrust, 127 U. PA. L. REV. 1051 (1979)

35
Background Reading
J Kirkwood and R Lande, ‘The Fundamental Goal of Antitrust: Protecting Consumers not
Increasing Efficiency’ (2008) 84 Notre Dame L. Rev 191
Louis B. Schwartz, “Justice” and Other Non-Economic Goals of Antitrust, 127 U. PA. L. REV.
1076 (1979),
Lina Khan, The Ideological Roots of America’s Market Power Problem, 127 Yale Law Journal
Forum 960 (June 4, 2018)
Carl Shapiro, Antitrust in a Time of Populism, Int’l J. indus. Org. (2018).
Maurice E. Stucke, Reconsidering Antitrust’s Goals, 53 B.C. L. Rev. 551, 563–64 (2012).
Lina Khan & Sandeep Vaheesan, Market Power and Inequality: The Antitrust Counterrevolution
and Its Discontents, Harvard Law and Policy Review 11 (2017)

36