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Full-Text Articles in Law
House Judiciary Inquiry Into Competition In Digital Markets: Statement, Herbert J. Hovenkamp
House Judiciary Inquiry Into Competition In Digital Markets: Statement, Herbert J. Hovenkamp
All Faculty Scholarship
This is a response to a query from the Judiciary Committee of the U.S. House of Representatives, requesting my views about the adequacy of existing antitrust policy in digital markets.
The statutory text of the United States antitrust laws is very broad, condemning all anticompetitive restraints on trade, monopolization, and mergers and interbrand contractual exclusion whose effect “may be substantially to lessen competition or tend to create a monopoly.” Federal judicial interpretation is much narrower, however, for several reasons. One is the residue of a reaction against excessive antitrust enforcement in the 1970s and earlier. However, since that time antitrust …
Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande
Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande
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The House Judiciary Antitrust Subcommittee asked me to submit suggestions concerning the adequacy of existing antitrust laws, enforcement policies, and enforcement levels insofar as they impact the state of competition in the digital marketplace. My submission recommends the following nine reforms:
1. A textualist analysis of the Sherman Act shows that Section 2 actually is a no-fault monopolization statute. At a minimum Congress should enact a strong presumption that every firm with a 67% market share has violated Section 2. This would move the Sherman Act an important step in the right direction, the direction Congress intended in 1890. My …
Antitrust And Two-Sided Platforms: The Failure Of American Express, John B. Kirkwood
Antitrust And Two-Sided Platforms: The Failure Of American Express, John B. Kirkwood
Faculty Articles
Two-sided platforms serve two sets of customers and enable them to interact with each other. The five most valuable corporations in America – Amazon, Apple, Facebook, Google, and Microsoft – all operate two-sided platforms. But despite their growing power, the Supreme Court's American Express decision has made it harder to stop them from stifling competition. This Article systematically exposes the flaws in the Court's reasoning and identifies the principles that should govern future cases. The Court’s most fundamental error was to require plaintiffs in rule of reason cases to make an initial showing of consumer harm that weighs the effects …
The Sherman Act Is A No-Fault Monopolization Statute: A Textualist Demonstration, Robert H. Lande, Richard O. Zerbe Jr.
The Sherman Act Is A No-Fault Monopolization Statute: A Textualist Demonstration, Robert H. Lande, Richard O. Zerbe Jr.
All Faculty Scholarship
The drafters of the Sherman Act originally designed Section 2 to impose
sanctions on all monopolies and attempts to monopolize, regardless whether the
firm had engaged in anticompetitive conduct. This conclusion emerges from the
first ever textualist analysis of the language in the statute, a form of interpretation
originally performed only by Justice Scalia but now increasingly used by the
Supreme Court, including in its recent Bostock decision.
Following Scalia’s methodology, this Article analyzes contemporaneous
dictionaries, legal treatises, and cases and demonstrates that when the Sherman
Act was passed, the word “monopolize” simply meant that someone had acquired
a monopoly. …
Antitrust & Corruption: Overruling Noerr, Tim Wu
Antitrust & Corruption: Overruling Noerr, Tim Wu
Faculty Scholarship
We live in a time when concerns about influence over the American political process by powerful private interests have reached an apogee, both on the left and the right. Among the laws originally intended to fight excessive private influence over republican institutions were the antitrust laws, whose sponsors were concerned not just with monopoly, but also its influence over legislatures and politicians. While no one would claim that the antitrust laws were meant to be comprehensive anti-corruption laws, there can be little question that they were passed with concerns about the political influence of powerful firms and industry cartels.
Since …
Rethinking Major League Baseball’S Antitrust Exemption, Roger D. Blair, Wenche Wang
Rethinking Major League Baseball’S Antitrust Exemption, Roger D. Blair, Wenche Wang
UF Law Faculty Publications
For nearly a century, Major League Baseball (MLB) has enjoyed antitrust immunity. No other sports league or organization is similarly exempt. Shielded by precedent from antitrust prosecution, MLB clubs are free to exploit both monopolistic and monopsonistic power. In this paper, we call for a repeal of MLB’s antitrust exemption. In doing so, we examine some recent antitrust challenges to MLB conduct, the current interest of the Department of Justice and the Federal Trade Commission in labor market issues, the welfare consequences of the exemption, and a policy recommendation for legislative action.