The Yale Law Journal

Antitrust Law


Brandeisian Banking

Kathryn Judge

For much of the twentieth century, banking law used an array of carrots and sticks to create a banking system that was both very stable and highly decentralized. This history is key to understanding how banking law has, and could again, serve Brandeisian aims. 



Banking and Antitrust

Saule T. Omarova & Graham S. Steele

This Essay seeks to recover the deeply rooted connection between U.S. banking law and antitrust. It reconceptualizes banking law as a sector-specific antimonopoly regime that imposes multiple structural constraints on publicly subsidized banks’ ability to abuse their power over the supply and alloca…


The Antimonopoly Presidency

Daniel Backman

This Note traces the separation of powers in U.S. antimonopoly law—a division of authority that arose after the National Industrial Recovery Act failed in 1935 and that the Biden Administration is attempting to reconfigure today. To succeed, a revived antimonopoly presidency must incorporate the les…


Open Access, Interoperability, and DTCC’s Unexpected Path to Monopoly

Dan Awrey & Joshua C. Macey

This Article argues that open-access and interoperability requirements helped the Depository Trust & Clearing Corporation monopolize U.S. securities clearing and depository markets. DTCC’s path to monopoly offers a cautionary tale for policymakers seeking to use open access and interoperability to c…


The Antitrust Duty to Deal in the Age of Big Tech

Erik Hovenkamp

Tech platforms are often accused of refusing to deal with their competitors. But courts have largely killed off antitrust liability for such behavior, citing concerns that it would chill investment in new technologies. This Article argues that antitrust can protect investment without needlessly stif…


Recovering the Moral Economy Foundations of the Sherman Act

Sanjukta Paul

This Feature grounds a core prescription for antitrust law—to disperse economic coordination rights—in its “moral economy” origins, tracing a thread through the common law, nineteenth-century antimonopoly politics, and the legislative history of the Sherman Act. The normative thread traced here is i…


Antitrust and Platform Monopoly

Herbert Hovenkamp

Large digital platforms often are not winner-take-all markets. As a result, antitrust has a role but breakup is rarely the right solution. Better options include incentivizing competition within the platform or forcing interoperability or information sharing. Current merger policy, however, is poorl…


Dominant Digital Platforms: Is Antitrust Up to the Task?

Steven C. Salop

Consolidation through mergers and exclusionary conduct by dominant firms can harm consumers and workers and reduce innovation. Digital networks are a particular concern because of barriers to entry. While antitrust law in principle can be strengthened by evolution, new legislation would be a more ra…


Antitrust’s High-Tech Exceptionalism

Rebecca Haw Allensworth

Today, the digital marketplace is dominated by only a handful of tech companies. During the last two decades, American antitrust law has acquiesced to this consolidation not only by failing to evolve from its roots in smoke-stack industries, but also by giving big tech special dispensation under tra…


Market Definition and Anticompetitive Effects in Ohio v. American Express

Aaron M. Panner

With high-tech industries attracting increased scrutiny, the Supreme Court’s analysis of the two-sided market in Ohio v. American Express will be a focus of antitrust litigation.  This Essay argues that, despite the apparent focus on market definition, the Court’s opinion is most persuasive in its c…


The Easterbrook Theorem: An Application to Digital Markets

Joshua D. Wright & Murat C. Mungan

Frank Easterbrook argued that erroneous antitrust convictions are more costly than erroneous acquittals. We find that if he is correct, the optimal standard of proof is stronger than preponderance of evidence. Our conclusion stands in stark contrast to proposals to reduce the evidentiary burdens fac…


The New Antitrust/Data Privacy Law Interface

Erika M. Douglas

Antitrust theory portrays data privacy as a factor, like quality, that improves with competition. This Essay argues that view, though not inaccurate, is incomplete. It offers a new account of how data privacy interests have begun to clash at the margins with antitrust law, particularly in the digita…


Labor’s Antitrust Problem: A Case for Worker Welfare

Eugene K. Kim

Labor and antitrust have historically been at odds: workers have faced antitrust liability for organizing, as the market power of employers has grown. Motivated by recent developments in the gig economy, this Note argues that antitrust law must preserve the welfare of workers, and proposes reforms t…


The Strategies of Anticompetitive Common Ownership

C. Scott Hemphill & Marcel Kahan

This Article examines the mechanisms through which anticompetitive effects may arise when institutional investors hold stakes in competing firms. Most mechanisms, including cartel facilitation and passive failures to encourage competition, either lack empirical evidence or else are contrary to the i…


The Obsolescence of Advertising in the Information Age

Ramsi A. Woodcock

Online search renders most advertising obsolete for conveying product information. Today, the only purpose of most advertising is to persuade consumers to purchase products. Because the information function of advertising is now obsolete, this Article argues that the Federal Trade Commission should …


The Ideological Roots of America’s Market Power Problem

Lina M. Khan

While Unlocking Antitrust Enforcement offers solutions to our market power problem, Lina Khan highlights the absence of a discussion of what philosophy should guide antitrust law and enforcement. Addressing America’s market power problem also requires recognizing its ideological roots. 


The Twilight of the Technocrats’ Monopoly on Antitrust?

Sandeep Vaheesan

Sandeep Vaheesan contends that Unlocking Antitrust Enforcement is disappointingly modest in scope. Antitrust law is and will be political, and consumer welfare should not be privileged; it is inconsistent with congressional intent and embodies an incomplete understanding of corporate power.


Predatory Pricing: Limiting Brooke Groupe to Monopolies and Sound Implementation of Price-Cost Comparison

Aaron S. Edlin

Responding to C. Scott Hemphill and Philip Weiser’s feature on Brooke Group predatory pricing, Edlin argues that in monopoly cases the greatest competitive danger likely results from above-cost pricing and that the Brooke Group safe harbor for above-cost pricing should not extend to monopolies.


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.


When Patents are Sovereigns: The Competitive Harms of Leasing Tribal Immunity

Cecilia (Yixi) Cheng & Theodore T. Lee

The Hatch-Waxman Act and the AIA balance exclusive rights of pharmaceutical patent holders with entry of generic competitors. Allergan’s recent patent transfer to the Saint Regis Mohawk Tribe threatens this balance. This Essay proposes antitrust suits to sidestep sovereign immunity and prevent compa…


Amazon’s Antitrust Paradox

Lina M. Khan

Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware ma…


Present at Antitrust’s Creation: Consumer Welfare in the Sherman Act’s State Statutory Forerunners

Charles S. Dameron

For the last four decades, federal courts have construed the Sherman Act as a consumer-welfare statute. But considerable disagreement persists within the legal academy regarding the true legislative aims of American antitrust law. This Note argues that interpreters of the Sherman…


Parallel Exclusion

C. Scott Hemphill & Tim Wu

122 Yale L.J. 1182 (2013).

Scholars and courts have long debated whether and when “parallel pricing”—adoption of the same price by every firm in a market—should be considered a violation of antitrust law. But there has been a comparative neglect of the importance of “parallel exclusion”—conduct, enga…


The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other

Joshua D. Wright

121 Yale L.J. 2216 (2012).

The potential complementarities between antitrust and consumer protection law—collectively, “consumer law”—are well known. The rise of the newly established Consumer Financial Protection Bureau (CFPB) portends a deep rift in the intellectual infrastructure of consumer law …


Failure Is an Option: An Ersatz-Antitrust Approach to Financial Regulation

Jonathan R. Macey & James P. Holdcroft, Jr.

120 Yale L.J. 1368 (2011). 

We distinguish the economic problems when large financial institutions (“banks”) become insolvent from the political challenges that exist before banks are distressed. These political problems arise because policymakers would like to be able to precommit while a bank is …


Securities Regulation in the Shadow of the Antitrust Laws: The Case for a Broad Implied Immunity Doctrine

Jacob A. Kling

120 Yale L.J. 910 (2011). 

This Note provides a defense of the Supreme Court’s decision in Credit Suisse Securities (USA) LLC v. Billing, in which the Court reaffirmed a broad standard for determining when securities market activities are impliedly immune from antitrust liability. It argues that, c…


American Needle v. NFL: An Opportunity To Reshape Sports Law

Michael A. McCann

119 Yale L.J. 726 (2010). 

In American Needle v. National Football League, the U.S. Supreme Court will decide whether, and to what extent, section 1 of the Sherman Antitrust Act regulates a professional sports league and its independently owned franchises. For the first time, the Court could charac…


Optimizing Dual Agency Review of Telecommunications Mergers

William J. Rinner & III

118 Yale L.J. 1571 (2009).


Civil Rights, Antitrust, and Early Decision Programs

Ruby Z. Afram

115 Yale L.J. 880 (2006)

Early decision admission programs--which allow a student to receive early notification of admission in return for a commitment to attend a particular institution--enjoyed explosive popularity at America's institutions of higher education in the 1990s. Schools use the programs…


Compatibility and Interconnection Pricing in the Airline Industry: A Proposal for Reform

Bradley H. Weidenhammer

114 Yale L.J. 405 (2004)

Where rival firms compete in a network industry, compatibility among all firms maximizes the size, density, and total value of the network by combining rivals into a single network. Applying network-compatibility theory to the airline industry suggests that major carriers hav…


A Missed Opportunity: Nonprofit Antitrust Liability in Virginia Vermiculite, Ltd. v. Historic Green Springs, Inc.

Olivia S. Choe

113 Yale L.J. 533 (2003)

The antitrust laws are meant to govern and promote competition. But how antitrust law should treat nonprofit organizations, whose objectives lie outside the commercial sphere but whose actions nevertheless have economic consequences, is not settled. The Fourth Circuit recent…


Why Above-Cost Price Cuts To Drive Out Entrants Are Not Predatory--and the Implications for Defining Costs and Market Power

Einer Elhauge

112 Yale L.J. 681 (2003)

Recently, European and U.S. officials have made surprising moves toward restricting firms from using above-cost price cuts to drive out entrants. This Article argues that these legal developments likely reflect the fact that scholarly critiques of cost-based tests of predator…


Stopping Above-Cost Predatory Pricing

Aaron S. Edlin

111 Yale L.J. 941 (2002)

This Essay has refocused the predatory pricing debate on ex ante incentives--i.e., the incentives for entry and limit pricing before the predatory period--instead of the traditional focus of high prices after the predatory period. Ideally, a monopoly incumbent should price re…