28 U.S.C. § 517 allows the Department of Justice (DOJ) to file a statement addressing a governmental interest in any pending suit. This procedural tool laid dormant for decades, utilized sparingly in litigation involving foreign sovereigns. In the 1960s, the government expanded its use to aid in developing civil rights. In 2009, the DOJ deployed Section 517 in a new arena: antitrust. Since then, each administration has followed suit. Though initially criticized, these statements now draw praise from antitrust scholars as a costeffective means for DOJ advocacy. This Article challenges these accolades. Its foundation is an analytical assessment of the DOJ’s statements of interest in antitrust cases. This data exposes a dark side to such filings. This Article explains how the DOJ’s use of Section 517 can tempt underenforcement of antitrust laws and overreach by the executive branch. This Article further discusses how the DOJ’s use of Section 517 wastes already scarce resources necessary to implement the United States’ antitrust laws.
The Department of Justice (DOJ) has recently reasserted its power to bring criminal prosecutions under section 2 of the Sherman Act. This represents a dramatic break from the DOJ’s long-established practice of reserving criminal antitrust prosecutions for “hardcore” cartel behavior assessable under the per se rule rather than the rule of reason. This Article sets out the historical precedent for section 2 criminal prosecutions and explores the many challenges that the DOJ would need to overcome in order to succeed in any such prosecution at trial. The Article concludes that criminal prosecution of alleged unilateral monopolization offenses would present intractable difficulties for the DOJ in particular, given the high criminal standard of proof and the number and complexity of the issues that would need to be proved pursuant to a highly nuanced rule of reason analysis. The Article notes that such a policy would also move the United States further away from the approach to antitrust enforcement in other jurisdictions around the world, with potential knock-on implications for cooperation among enforcers.
This Article reviews two recent joint statements by the DOJ and FTC. The first was their request for information on their proposals to “strengthen” the antitrust laws on mergers. The second was the July 2023 release of new draft guidelines which were subject to many comments, often critical of the new regime. The difficulties with both documents start with the initial premise of their inquiries, which falsely posit that any “improvement” of the antitrust laws requires imposing new sanctions on private activities—when in many cases a relaxation of current restrictions may be best. But both agencies write as if the efficiencies inherent in many mergers are largely illusory. Consequently, they understate the social losses that come from blocking or modifying mergers under the Clayton Act. In addition, they underestimate the efficiencies of vertical mergers and overstate the risks of downstream foreclosure, as exemplified by the FTC’s unwise attack on the Ilumina-Grail merger. Both documents also overstate the risk of monopoly power in labor markets, which bear little to no relationship to product markets. In light of their recent judicial defeats, both agencies should rethink their premature departure from traditional antitrust policies and redraft the proposed 2023 Guidelines from scratch.
Most major platforms sell many of their own products, which typically results in direct competition between the platform and its own business users. A firm may exploit its control of a dominant platform to undermine competition in adjacent product markets, such as by excluding competitors from the platform or making their product listings hard to find. Alternatively, it might engage in milder acts of “self-preferencing,” such as ranking its own products first in search results. In American antitrust law, antiquated legal doctrine generally places these acts within a special class of unilateral conduct that is almost impossible to challenge. Thus, existing antitrust law does almost nothing to prevent platforms from excluding rivals in adjacent markets, so long as they do so through unilateral conduct. This Article suggests a new antitrust framework for policing unilateral platform conduct in a practicable way that is consistent with antitrust principles. When it is anticompetitive, the conduct in question typically raises the same concerns as the tying arrangement in the famous Microsoft case—namely, that a vertically integrated firm is exploiting a dominant platform to foreclose rivals in an adjacent market. As such, courts should evaluate most unilateral platform conduct under a revised liability standard that resembles the one applied in Microsoft, rather than the idiosyncratic and inapposite rules applied under existing law. After sketching out the basic proposal, the bulk of the Article focuses on applying it to real-world cases, such as analyzing foreclosure, defining markets, overcoming proof difficulties, and evaluating potential defenses.
Neo-Brandeisians, including the current heads of the U.S. antitrust enforcement agencies, have declared contemporary antitrust a failure. Among their chief complaints is that prevailing antitrust doctrine has failed to protect democratic values because it has allowed business enterprises to amass excessive economic power. Such economic power, they assert, breeds undue political power as large firms have the resources to sway policymakers and may thereby thwart majority will. Outside the political realm, NeoBrandeisians say, massive industrial concentration undermines effective self-governance by rendering citizens beholden as consumers, suppliers, and laborers to a small group of powerful firms. To preserve democratic values, defined both narrowly in terms of actual democratic functioning and broadly in terms of economic self-governance, NeoBrandeisians press for a fundamental reordering of the antitrust enterprise. Key components of this reordering are: (1) abandonment of antitrust’s consumer welfare standard (exemplified by the U.S. Federal Trade Commission’s replacement of its 2015 enforcement policy on unfair methods of competition with a multi-goaled enforcement policy), and (2) a move toward ex ante conduct rules in lieu of enforcement via adjudication under ex post standards (exemplified by the Commission’s recent proposal to ban worker noncompete agreements). The combined effect of these two moves, however, would be to centralize political power, weaken democratic accountability, and reduce individual freedom. Given that the promotion of democratic values is NeoBrandeisianism’s reason for being, Neo-Brandeisianism is “a policy at war with itself.
Applying traditional antitrust law to the modern world wide web could break the internet. Lina Khan, the FTC’s current chair, is pushing for enhanced antitrust enforcement to break up Big Tech, seemingly based on the assumption that antitrust law is the right tool for ensuring a free and equitable internet. This assumption may be in error, and this Article seeks to explain why. Antitrust doctrine originally developed from a law enacted 130 years ago to deal with monopolist “robber barons” like Standard Oil. Since 1890, the structure of markets has changed. Today’s information markets through the internet are much different from the railroad and oil markets of more than a century ago. This Article illuminates fundamental distinctions between commodities markets in the late 19th century and information markets in the mid-21st century so that lawyers, regulators, academics, and—most importantly—judges apply the doctrine correctly.
Antitrust analysis is famously complex, fact intensive, and time consuming. But should we aspire for it to be otherwise? I offer two cautionary conjectures in opposition to the search for simpler rules. First, I conjecture that efforts to convert vague antitrust standards into clear rules will rarely succeed without abandoning the underlying standards that the rules were meant to simplify. Second, I conjecture that failed efforts at simplifying antitrust will often have the opposite effect—increasing the apparent complexity and vagueness of this law. If these conjectures are correct, then the search for simpler rules could be not just unproductive but counterproductive in antitrust law.