Antitrust and Trade Regulation Commons^™

Monopolizing Digital Commerce, Herbert Hovenkamp

William & Mary Law Review

Section 2 of the Sherman Act condemns firms who “monopolize,” “attempt to monopolize,” or “combine or conspire” to monopolize—all without explanation. Section 2 is the antitrust law’s only provision that reaches entirely unilateral conduct, although it has often been used to reach collaborative conduct as well. In general, § 2 requires greater amounts of individually held market power than do the other antitrust statutes, but it is less categorical about conduct. With one exception, however, the statute reads so broadly that criticisms of the nature that it is outdated cannot be based on faithful readings of the text.

The one …

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …

Impediments To Renewed And Reinvigorated Antitrust Enforcement, Edward D. Cavanagh

William & Mary Business Law Review

Antitrust Division head Jonathan Kanter recently proclaimed that “the era of lax enforcement is over, and the new era of vigorous and effective antitrust law enforcement has begun.” Federal enforcers have indeed been active; the DOJ has sued Google in two separate actions, and the FTC has brought an action against Facebook.

While bringing these cases is an important first step to achieving a more robust antitrust enforcement regime, a significant obstacle to an antitrust renaissance remains—overcoming the strong gravitational pull of Chicago School theory that has dominated antitrust thought for the past half-century. Chicago School principles have not kept …

The Factor/Element Distinction In Antitrust Litigation, Christopher R. Leslie

William & Mary Law Review

Most price-fixing litigation turns on whether the plaintiffs can present sufficient circumstantial evidence from which a reasonable jury could infer that the defendants did, in fact, conspire to raise prices. This generally entails the proffering of plus factors, a type of evidence that suggests parallel conduct by the defendants was the product of collusion, not independent decisions. As their name suggests, plus factors are just that—factors. Proving a collection of factors may be necessary for a plaintiff’s case, but no individual factor is ever required. If it were, it wouldn’t be a factor; it would be an element.

Several federal …

The Case For Green Product Fixing: Reconciling Antitrust Law With Self-Regulation To Combat Climate Change, Peter Brigham

Emory Law Journal

As corporations continue to prioritize environmental, social, and governance (ESG) improvements alongside profit, cooperation with competitors may be an important part of their toolbox. In particular, cooperation can help to advance initiatives like the elimination of an unsustainable product type, which is a drastic step a corporation likely would not take on its own for fear of hurting its bottom line and customer loyalty. The issue is that agreements among competitors to engage in such steps may violate antitrust laws, as suggested by the Justice Department in the Trump administration and numerous state attorneys general.

This Comment uses the term …