The Yale Law Journal

Antitrust Law


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…