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House Judiciary Inquiry Into Competition In Digital Markets: Statement, Herbert J. Hovenkamp
House Judiciary Inquiry Into Competition In Digital Markets: Statement, Herbert J. Hovenkamp
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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 …
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.
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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. …