The Yale Law Journal

May 2018

Unlocking Antitrust Enforcement

24 May 2018
Antitrust Law

There is no antitrust law without antitrust law enforcement. Unlocking Antitrust Enforcement contends that existing tools to advance antitrust enforcement are well-suited to confront today’s U.S. antitrust challenges. Primarily focused on efforts by the federal antitrust agencies, these Features lay the foundation for an overarching enforcement agenda.


Introduction: Unlocking Antitrust Enforcement

Jonathan B. Baker, Jonathan Sallet & Fiona Scott Morton


Antitrust and Deregulation

Howard Shelanski

Because regulation works alongside antitrust law to govern U.S. market structure and economic conduct, deregulatory cycles can create gaps in competition enforcement. This Feature argues that antitrust enforcement should strengthen as regulation weakens.


Invigorating Vertical Merger Enforcement

Steven C. Salop

This Feature summarizes why and how vertical merger enforcement should be invigorated: in markets where economies of scale and network effects lead to barriers to entry and durable market power. In doing so, Salop disputes the Chicago School account regarding vertical merger enforcement.


Horizontal Mergers, Market Structure, and Burdens of Proof

Herbert Hovenkamp & Carl Shapiro

Hovenkamp and Shapiro argue that the longstanding structural presumption is strongly supported by economic theory and evidence and suggest ways to further strengthen it. The Feature considers and suggests additions to a promising recent legislative proposal to reinforce and expand the presumption.


Horizontal Shareholding and Antitrust Policy

Fiona Scott Morton & Herbert Hovenkamp

Horizontal shareholding occurs when a number of equity funds own shares of competitors operating in a concentrated product market. This Feature considers how antitrust laws might be applied to this: identifying a theory of harm and how it matches the law, as well as potential litigation hurdles.


Beyond Brooke Group: Bringing Reality to the Law of Predatory Pricing

C. Scott Hemphill & Philip J. Weiser

This Feature offers a roadmap for bringing and deciding predatory pricing cases under the Supreme Court’s restrictive Brooke Group framework. Using historical research, Hemphill and Weiser identify flexibility within the framework that permits empirically grounded evaluation of predation claims.


Mergers that Harm Sellers

C. Scott Hemphill & Nancy L. Rose

This Feature examines the antitrust treatment of mergers that harm sellers and demonstrates that lost upstream competition is an actionable harm to the competitive process. Hemphill and Rose contend that harm to sellers in an input market is and should be sufficient to support antitrust liability.


How Antitrust Law Can Make FRAND Commitments More Effective

A. Douglas Melamed & Carl Shapiro

This Feature argues that Section 1 of the Sherman Act can play an important role in ensuring that the rules established by standard-setting organizations are effective in preventing owners of standard-essential patents from engaging in patent holdup.


Multisided Platforms and Antitrust Enforcement

Michael Katz & Jonathan Sallet

Multisided platforms are ubiquitous in today’s economy. This Feature concludes that enforcement should use a multiple-markets approach, which appropriately accounts for cross-market network effects without collapsing all of a platform’s users into a single product market.


Antitrust Enforcement Against Platform MFNs

Jonathan B. Baker & Fiona Scott Morton

Antitrust enforcement against anticompetitive platform most favored nations (MFN) provisions can protect competition in online markets, including hotel and transportation bookings, digital goods, or craft products. This Feature discusses how enforcement could reach anticompetitive platform MFNs.