Under a ruthlessly narrowed conception of antitrust law and permissive enforcement, consolidation and monopolization have become the norm and competitive open markets the exception. While recent attention has been duly focused on the power and dominance of the Big Four technology companies Amazon, Apple, Facebook, and Google, monopolization and its harms are widespread. 

Firms in industries across the economy ranging from baby formula, chicken, beef, agriculture, beer, pet food, eyeglasses, pharmaceuticals, banking, health services, telecommunications, broadband, concrete, and air travel are infected by the spreading trend of market consolidation. Four beef packers control over 80 percent of the market, four companies dominate the poultry industry, only one company largely controls the manufacture and retail of glasses, four companies control 97 percent of the dry cat food, and millions of Americans only have one option for internet providers. Over 75 percent of US industries have experienced increases in market concentration since the 1990s. Even in death, market concentration imposes its harms as two firms control 76 percent of the coffin and casket manufacturing industry. From cradle to coffin, Americans are subject to consolidated markets and experience higher than competitive prices. 

Firms in highly concentrated markets can far more easily exclude, collude, raise consumer prices while lowering supplier prices, and subvert the promise of open, competitive markets. Studies have shown that the consolidation trend has resulted in harmful price increases. A systematic review of studies on the price effect of mergers found the average price effect to be 7.2 percent. Specific analysis on the healthcare industry found that hospital mergers resulted in price increases of at least 20 percent and health insurance mergers led to a 7 percent increase in average premium. The price of beer increased up to 8 percent due to consolidation and anti-competition practices. A study of airline mergers found prices increased between 7.2 and 29.4 percent depending on the degree of direct competition before the consolidation. The alternative to obscene price markups, arbitrary additional fees, and monopolistic pricing is competitive pricing in a competitive market. 

The harms of market concentration extend well beyond noncompetitive pricing. Concentration enhances a firm’s power as a buyer—that is, its monopsony power—giving the firm outsized control over workers or suppliers of intermediary goods and raw materials.

Monopsony power in the labor market means there are fewer firms hiring from the same labor pool. When workers have fewer options, employers have more control. Monopsony power subsequently increases the firm’s wage-setting power and its ability to impose unfavorable contractual rules and agreements on employees, such as non-compete agreements that limit workers’ ability to switch jobs.

For example, two of the poultry industry’s biggest companies, Tyson and Perdue, recently agreed to pay millions to settle a lawsuit that accused them and other firms of conspiring to dominate the market and fix the prices paid to farmers who raise the chickens.

Credit: ‘The Protectors of Our Industries.’ From Puck, February 7, 1883

A March 2022 report by the U.S. Department of the Treasury, “The State of Labor Market Competition in the U.S. Economy” found that workers across the economy are being paid at least 20 percent less than they would if the labor market was fully competitive. Specific industries like manufacturing and low-income workers experience even higher wage losses. The report provided a clear summary of the antitrust harms imposed on workers stating, “Concentration in particular industries and locations can lead to workers receiving less pay, fewer benefits, and worse conditions than what they would under conditions of greater competition.”

“Concentration in particular industries and locations can lead to workers receiving less pay, fewer benefits, and worse conditions than what they would under conditions of greater competition.”

For workers today, the problem of concentration-based power is widespread: 60 percent of the labor market is considered highly concentrated. Studies have found that an uncompetitive labor market is associated with lower wages. As a result of widespread monopolization, the American people are paying more for their products and being paid less for their work. 

Concentrated market power also has a negative effect on job creation, and merger-driven layoffs are increasingly common. Additionally, the trend of accelerated consolidation coincides with the plunging rate of entrepreneurship in the US.

There is growing evidence that rising concentration of market power is dampening innovation. Because corporations can so easily merge and acquire companies, large corporations are not incentivized to commit to internal expansion through investments in capital, technology, or research and development. The resultant growth through acquisition scheme significantly hinders internal innovation and helps explain the persistently low rates of investment despite historically low interest rates and a high degree of firm wealth. 

Although the Supreme Court has more recently ignored this growth-through-acquisition problem, in 1962, the Court recognized in clear terms that internal expansion “is more likely to be the result of increased demand for the company’s products and is more likely to provide increased investment in plants, more jobs and greater output” while “expansion through merger is more likely to reduce available consumer choice while providing no increase in industry capacity, jobs or output.” The Court’s decision, anchored in a concern for the problems of concentration, remains good law, ready for revival, should today’s Court choose to take those harms seriously.

In addition to the harms of bloated consumer prices and depressed wages, the untoward consequences of concentration imperil our democratic system more generally. Monopoly power is a key driver of political and economic inequality. The concentration of wealth yields a concentration of power corrosive to the very nature of our democratic ideals. As Louis Brandeis, then-lawyer and political advisor, stressed in 1912, “democracy involve[s] . . . . [n]ot merely political and religious liberty, but industrial liberty also.” Within the struggle for meaningful antitrust policy is a struggle for democracy and freedom from domination. 

Within the struggle for meaningful antitrust policy is a struggle for democracy and freedom from domination. 

Sandeep Vaheesan, legal director at the Open Markets Institute and previously a regulations counsel at the Consumer Financial Protection Bureau, put it this way: “Antitrust one way or another distributes power in the economy and among other laws, decides whether that power is wielded by consumers, workers, small business people, or by shareholders and executives at large corporations.”

Detailing some specifics, Vaheesan continues:

“it affects our day-to-day lives in some very profound, albeit mostly overlooked ways including things such as the price of prescription drugs, the amount of wages and salaries we receive for our work, the opportunities an aspiring entrepreneur has to start a business and succeed as a business person, and fundamentally whether we live in a democratic society in which power is distributed broadly and our elected officials serve our interests and represent us or whether they represent a small elite.”

Sandeep Vaheesan – Credit: https://www.openmarketsinstitute.org

Under existing antitrust laws, the most powerful economic actors are thus poised and eager to amplify that advantage when any opportunity presents itself.  As the American public experienced the tumult and tragedy of the pandemic and the labor force navigated furloughs and health risks, corporate enterprises saw such an opportunity. By August, just eight months into the year, the Wall Street Journal reported that 2021 was already on track to be the biggest year for mergers and acquisitions since they began keeping records of such dealings. Though this merger wave was predicted, Congressional attempts to intervene did not bear fruit as the wave proceeded to crash and result in mass layoffs. 

The current state of both unprecedented loss and unprecedented corporate profits breathes new life into Charles Dickens’s phrase “It was the best of times, it was the worst of times.” 

None of this was inevitable. It was a series of strategic, carefully planned legal and policy choices starting in the 1970s in the Courts and then really picking up in the 1980s with the Reagan administration

The monopolization of the U.S. economy occurred neither overnight nor naturally. As Vaheesan put it:

“None of this was inevitable. It was a series of strategic, carefully planned legal and policy choices starting in the 1970s in the Courts and then really picking up in the 1980s with the Reagan administration where the DOJ and FTC said we’re going to dial back merger enforcement — forget what the statutory text says, we don’t think this is good policy, so we’re going to have a much more permissive approach to corporate consolidation.”

Vaheesan continues: 

“The court issued a series of decisions on monopolization law where they relaxed traditional rules on unfair competition and said predatory pricing, for example, is generally beneficial, low prices are good for consumers, so let’s make it hard for the government and other plaintiffs to challenge predatory pricing. The recognition that none of this was inevitable sustains my hope and belief that we will be able to undo this and create a much more equitable and just economy.”

The consolidation shift was a result of policy, not accident. Deliberate political choices driven by an academic movement, promoted by judicial activists, entrenched by the Reagan administration, and perpetuated by subsequent administrations and courts all contributed to the proliferation of consolidation and oligopoly that we see today.

“The recognition that none of this was inevitable sustains my hope and belief that we will be able to undo this and create a much more equitable and just economy.”

A broad stroke sketch of the relevant policy players in antitrust illuminates how enforcement and jurisprudence shifted so drastically without the passage of congressional legislation enacting such changes. In the realm of federal antitrust policy, Congress passes federal antitrust laws, executive agencies enforce the antitrust laws consistent with Congressional intent, and the Judiciary adjudicates cases when enforcers bring suits intervening in monopolistic practices and anticompetitive conduct. State antitrust laws and enforcement agencies can also bring suit and intervene as well.

An ideological movement that captures both the executive branch and the judiciary can redefine the paradigm of antitrust law, especially in the presence of an inactive legislative branch. 

Credit: “The Government again belongs to the people and not to corrupt monopol[ies?]”

While the Supreme Court has held that simply existing as a monopoly does not violate the law, the Court also asserted that “the use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is unlawful.” 

For decades, antitrust laws were built on a populist foundation which viewed monopolistic practices as extortive, was concerned with the effect of monopolies on democracy, held the presumption that market structure had important implications, and viewed consolidation with heightened scrutiny. Sally Hubbard, Senior Counsel to the Assistant Attorney General, DOJ Antitrust Division and author of Monopolies Suck: 7 Ways Big Corporations Rule Your Life and How to Take Back Control. She explains that 

“there was a drastic change to antitrust enforcement that began in the 1980s, which changed the historical focus of antitrust law on protecting the competitive process to an emphasis on promoting corporate efficiency. That ideology justified consolidation as good for consumers, but over forty years later, the opposite has proved true.” 

Sally Hubbard

The Reagan administration conferred the levers of power to the lawyers and academics who were committed to the unraveling of antitrust policy — specifically Robert Bork, Milton Friedman, Frank Easterbrook, Harold Demsetz, Richard Posner, William Baxter, and James Miller. Baxter and Miller, respectively appointed to head the DOJ’s antitrust division and FTC, adhered to the theories advanced in Bork’s book The Antitrust Paradox, which argued antitrust laws ought to only protect and support the economic concept of efficiency. 

Adopting the language of the consumer movement, Bork defined efficiency in terms of “consumer welfare.” He argued that, from the perspective of consumers, lowering prices was a paramount goal. In his story, which was rapidly taken up by other efficiency-oriented scholars, mergers and consolidations often bring efficiencies of scale, resulting in lower prices and thus improving consumer welfare. According to the disciples of the consumer welfare theory, any abuse of dominance such as raising prices above competitive levels would simply be addressed by market forces. 

To justify the fixation on efficiency, Bork argued that Congress passed the Clayton, Federal Trade Commission, and Sherman Acts with the sole purpose of prohibiting practices that negatively affected efficiency, or consumer welfare. The Supreme Court relied extensively on Bork’s argument that the original intent of the Sherman Act was to promote consumer welfare in its landmark decision in Reiter v. Sonotone. The Court cited Bork in its holding that “Congress designed the Sherman Act as a ‘consumer welfare prescription.’”

Since Bork’s claims gained policy and judicial traction, numerous legal scholars have pointed out the inaccuracies of Bork’s historical claims. Perhaps more significant, a growing body of evidence reveals that anti-antitrust movement failed to lower prices or increase efficiency. Sandeep Vaheesan explains: 

“Bork fabricated the legislative history of the Sherman Act and said it was about consumer welfare. A number of scholars have reviewed the legislative history and said he was completely wrong, that he made something up out of whole cloth. Then, the economics he promoted were very simplistic, deductive theories, and if you poke at some of the assumptions, you realize his whole intellectual edifice is a house of cards. But you do have true believers on the Supreme Court and the lower courts as well that generally believe the simple neoclassical framework is right and actually captures how the world works.”

Unfortunately for the historical record and jurisprudence, the ahistorical claims and unsubstantiated economic theories of Bork have been cited in more than 150 federal court rulings. While pro-monopoly interests and those who opposed strong antitrust enforcement ignore or distort the original intent of antitrust laws, the political, economic, and social concerns within Congress which drove the passage of the Antitrust laws still matter. Unequal political power, unjust wealth transfers, and open markets were at the heart of debates and discussions during the legislative process. 

Upon the passage of the Sherman Act in 1890, Senator John Sherman called it “a bill of rights, a charter of liberty” to be construed “liberally” and stressed its importance through a political lens. There was a widely held belief present in the congressional discourse that economic concentration tends to yield antidemocratic political pressures. For example, Senator George Hoar articulated the systemic concern that monopolies were “a menace to republican institutions themselves.” 

Throughout the congressional debates, lawmakers also consistently denounced the extraction and transfer of wealth from consumers and smaller suppliers to monopolistic enterprises. For example, Senator Sherman referred to such monopolistic practices as “extortion which makes the people poor,” and Senator James George expounded on that asserting monopolists “aggregate to themselves great enormous wealth by extortion which makes the people poor.” Similarly, Representative Ezra Taylor claimed that the beef trust “robs the farmer on the one hand and the consumer on the other.”

Preservation of open markets and assurance that independent and small enterprises could freely enter were also distinct intentions of Congress. Much of the support for the Federal Trade Commission Act was built on the belief it would promote and protect small business. For lawmakers like Senator George, if monopolization was to continue and big business go without intervention, it would “crush out all small men, all small capitalists, all small enterprises.”

In the congressional debates on the Clayton Act in 1914, representatives voiced their concerns not simply for efficiencies or even for just consumers, but for the innovator, producer, laborer, and society as a whole. Representative Guy Helvering warned of the destruction of competition and stated in clear terms:

“Monopoly has the power to dictate to the producer of the raw material which it must buy, and it has the power to dictate to its labor the wage it will pay for the only commodity labor has to sell, and at the same time it is the absolute dictator of the price which the consumer must pay for the output of the monopolies.

Such a centralization of power is a menace to the well-being of all, and, carried to its logical conclusion, it means the enslavement of the masses, the closing of the door of opportunity, and the centralization of all of the wealth earned by the brain and brawn of the American people in the hands of a few monopolists.”

Credit :American cartoon by Samuel Ehrhardt, 1889.

Not only was the very concept of efficiency not defined by economists until years after the passage of the Clayton Act in 1914, but price levels — a primary focus of Bork and his associates — were actually stable or declining in the US prior to the passage of the Sherman Act in 1890. The primary discussion of prices in Congress circulating the antitrust legislation actually pertained to the belief that competition lowered prices and trusts were increasing prices.

Key sponsors of the antitrust legislation spoke nothing of allocative efficiency in the way that Bork so insisted. The Congressional representatives which were instrumental in the writing and passage of the defining antitrust laws were not narrowly concerned with concepts of prices and consumer welfare, but rather they had broad denunciations of unjust wealth extraction and inequality, broad political concerns, and a specific intent to preserve open markets.

The Congressional representatives which were instrumental in the writing and passage of the defining antitrust laws were not narrowly concerned with concepts of prices and consumer welfare, but rather they had broad denunciations of unjust wealth extraction and inequality, broad political concerns, and a specific intent to preserve open markets.

The ahistorical construction of antitrust law nonetheless became and remains mainstream as it fits ideological pursuits and permits actions that do not impair their definition of efficiency regardless of their impact on consumers, workers, competition, or the broader political and economic systems. To the detriment of this nation, the economic pseudo-science that informed this pro-monopoly coup of antitrust doctrine has been measured and come back wanting. The Invisible Hand is apparently suffering from rigor mortis. 

The induced paralysis and defanging of antitrust law was ratified by an increasingly conservative judicial apparatus and reinforced by unelected policymakers. In 1982, Baxter redefined the DOJ’s guidelines for examining mergers, relying heavily on Bork’s theories. The prior guidelines, established in 1968, viewed mergers resulting in as little as five percent of market control with great skepticism and scrutiny. Under Baxter’s permissive revision, the market concentration threshold for horizontal mergers was increased considerably, vertical mergers enjoyed broad legality, and the concept of efficiency was centered in antitrust considerations. 

While the Reagan administration initiated the pro-corporate coup against antitrust policies, subsequent Republican and Democratic administrations coalesced and perpetuated the new, permissive enforcement regime. Likewise, the federal court system generally adopted the belief that antitrust laws should primarily protect the concept of efficiency which favored a monopolistic defendant.

As Sara Miller puts it, “ideological political actors essentially placed corporations above the law while everybody else faces penalties for failing to adhere to it. The intellectual framework that was developed under Bork basically inverted the law so that monopolization was more or less encouraged and legal.” 

“ideological political actors essentially placed corporations above the law while everybody else faces penalties for failing to adhere to it. The intellectual framework that was developed under Bork basically inverted the law so that monopolization was more or less encouraged and legal.”

Since the end of the 1970s, the rightward shift in jurisprudence culminated in a Supreme Court that abandoned simple rules and direct presumptions and employed defendant-friendly rule of reason doctrine and permissively open-ended standards instead. In determining the legality of restraint to trade under antitrust laws, the Court has either applied a per se illegal standard or a rule of reason standard.

The Court has steadily removed certain practices from the per se illegal standard, placing them under the rule of reason doctrine. For example, in their repudiation of antitrust precedent, the Court overturned the per se rules imposed on vertical price and non-price restraints in a series of cases culminating with the landmark Leegin Creative Leather Products, Inc. v. PSKS Inc. ruling.  A study of antitrust cases adjudicated between 1999 and 2009 found that courts disposed of 97 percent of cases under the rule of reason’s burden of proof placed on the plaintiff.

Under the rule of reason, the plaintiff who brought the claim of antitrust violation must first show “a substantial anticompetitive effect that harms consumers in the relevant market.” A legal battle can ensue over determination of the relevant market and proof of anticompetitive effect such as price increase, output reduction, or market power. If the plaintiff successfully carries this burden, “then the burden shifts to the defendant to show a procompetitive rationale for the restraint.” If the defendant succeeds in this, “then the burden shifts back to the plaintiff to demonstrate that the procompetitive efficiencies could be reasonably achieved through less anticompetitive means.” If all of this is accomplished, the courts are left to balance the accused practice’s anticompetitive and procompetitive effects. 

Today, antitrust litigation requires economic experts and extensive discovery, amounting to a costly and interminable process. Conflicting economic calculations to prove cross-elasticity of demand or ease of entry as well as conflicting economic theories that wax poetically over definitions of rational behavior further undermine the adjudication process. The cost of litigation alone may chill legal challenges to antitrust violations regardless of the deeply unfavorable probability that the challenges meet ever higher, amorphous standards of proof.

In this age of pro-monopoly jurisprudence, the Supreme Court has not only continued to apply the consumer welfare framework and rule of reason doctrine, but it has also, time and again, increased the burden for plaintiffs to prove unlawful conduct. For example, in Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., the Court imposed a stringent standard on plaintiffs who brought predatory pricing claims under antitrust law, requiring that they have to prove both below-cost pricing and establish future anticompetitive effects from this pricing practice. 

In Aspen Skiing Co. v. Aspen Highlands Skiing Corp., the Court imposed a permissive effects-based analysis to refusals-to-deal considerations, holding that the plaintiff not only has to show the effect that the exclusionary practice had on them, but they also have to show “its impact on consumers and whether it has impaired competition in an unnecessarily restrictive way.”

Such arbitrarily high standards under the rule of reason has ushered in the current era of near-zero probability of successful litigation for plaintiffs challenging antitrust violations. As long as exclusionary conduct is met with such passivity and permissiveness, dominant firms will continue to swallow and smother competition.

As long as exclusionary conduct is met with such passivity and permissiveness, dominant firms will continue to swallow and smother competition.

With the corporate and conservative capture of the courts, four merger waves in the mid-1980s, early 90s, late 90s, and mid-2000s consolidated markets. A wave of mergers and acquisitions again crashed upon the public in 2015 and 2017 with mergers and acquisitions peaking this past year through the actions of those who saw profit opportunity during the tragedy of the pandemic. Nevertheless, once-populist and progressive antitrust laws can be revived despite the damage done. 

The pervasiveness of consolidation in our everyday lives should not stifle the ability to imagine a society free from domination and an economy emboldened by open markets. Just as the current monopolistic status quo was purposefully constructed, so too can it be deconstructed.

In the context of merger law, the Supreme Court’s 1963 consideration of structural presumption in United States v. Philadelphia National Bank can be revived. Though it has been weakened by the more recent conservative movement in jurisprudence, the holding that a horizontal merger resulting in a firm with greater than 30 percent of the market share is presumptively illegal has not been formally overruled. 

In Philadelphia National Bank, the merger under scrutiny produced market shares well above twenty percent, leading the Court to establish that exceeding this lower threshold could also be presumptively illegal. This presumption is balanced by the defendant’s ability to show business justifications to move forward with the combination of the merging parties. 

The re-assertion of this existent standard would function as both a cleansing force in its simplification and a deterrent force. A study of this form of structural presumption of illegality found that they are extremely accurate in identifying anticompetitive mergers even under the efficiency standard.

Conduct specifically carried out by dominant or near-dominant firms can also be subject to a presumption of illegality. Justice Antonin Scalia, a critic of even the most permissive interpretations of antitrust law, recognized that the activities of a firm with substantial market power ought to be examined through a “special lens.” Scalia wrote in his dissenting opinion in Eastman Kodak Co. v. Image Tech. Servs., Inc., “[b]ehavior that might otherwise not be of concern to the antitrust laws—or that might even be viewed as procompetitive—can take on exclusionary connotations when practiced by a monopolist.” 

While pricing below short-term costs and exclusive dealing arrangements may have a passive effect on markets when conducted by non-dominate small firms, the nature of these business practices are of a drastically higher order of concern when achieved by dominant firms. A presumptive rule requiring the dominant firm to provide business justifications for these actions can be applied by the courts. Such a presumptive rule would mirror the European Union’s Abuse of Dominance law which imposes a presumption of illegality to conduct with potentially exclusionary effects undertaken by a dominant firm.

Despite the abundant resources of pro-monopoly interests, movements to oppose the monopolization of America and reform the system that promoted the relentless consolidation of markets are building momentum. A window of opportunity has opened up in recent years in which the status quo is increasingly questioned and challenged. 

For Sally Hubbard, this moment in antitrust reform is not fleeting nor is its light dimming, “because it developed in response to widespread recognition that America has a monopoly problem. Until that problem is fixed, the American people will suffer a variety of harms, and the movement’s momentum will continue.”

“America has a monopoly problem. Until that problem is fixed, the American people will suffer a variety of harms, and the movement’s momentum will continue.”

One school of thought has prominently emerged to carry out the original intent of antitrust laws. The New Brandeisian legal movement sets out to resuscitate these existent laws and replace pro-monopolization dogma with an empirically informed project to build more fair and open markets. According to Miller, the new movement

“is against the centralization of economic power . . . . Our view is that we need to aggressively decentralize economic power to maintain checks and balances both within our economic system and between the private sector and the public sector. At the root of our vision is a robust innovative network of smaller, medium-sized businesses in markets in which there is a functional, competitive environment such that they are not competing on predatory terms but on terms that are more productive for society.”

The Biden Administration has welcomed scholars and lawyers that represent both a break and maintenance of the status quo, bringing hope that meaningful, tangible change can be enacted. While Biden’s appointment of Lina Khan to head the FTC was applause by anti-monopoly advocates, her leadership was also met by concerned Wall Street Journal editorials and fear-mongering from pro-consolidation forces. 

Initially stymied by a gridlocked FTC with two commissioners appointed by Democrats and two appointed by Republicans, Chair Khan now has a newfound majority with the confirmation of Alvaro Bedoya. One example of the effect of this majority is in the shift in votes on the question of pharmacy benefit managers. In February 2022, the FTC voted 2-2 on initiating an investigation into whether pharmacy benefit managers (PBMs) are contributing to the decline in independent pharmacies and increased drug prices, meaning the investigation could not move forward. With the addition of Bedoya, tides shifted, and in June 2022, the FTC voted to launch the investigation. 

Although the FTC has challenged mergers and acquisitions for their concentration harms upon which such dealings were abandoned, the expectation for impact and reform has increased now that Chair Khan leads a majority. 

Biden’s appointment of Jonathan Kanter to lead the DOJ’s Antitrust Division established an anti-monopoly ally for Khan as well. Under their leadership, the FTC and DOJ are more inclined to provide updated merger guidelines to reform how the judiciary view cases involved mergers and signal to consolidated markets that further concentration will be scrutinized. 

For Sarah Miller, revised merger guidelines are a priority among others because, “Corporations primarily amass market power through mergers, so revising and changing the guidance that the FTC and the DOJ developed is an important step to really putting a stop to the merger waves.”

In addition to new merger guidelines, Sandeep Vaheesan wants the FTC to “recognize that its power under Section 5 [of the Federal Trade Commission Act] is broader than the Sherman and Clayton Acts.” In practice, this “would mean a revival of norms of unfair competition then aggressively targeting things like below cost, pricing and tying, and exclusive dealing” as well as taking positions and articulating rules that impact workers more directly. 

For Vaheesan, such positions include the FTC banning non-compete clauses and the FTC could restrict or prohibit some of the contractual methods of control used by new and old gig economy franchise models which would force companies like Uber to make a decision: either it treats its drivers as genuinely independent workers or it controls them as employees and also gives them the rights and benefits that come with employment.

Generally, anti-monopolists argue progress can be made if the DOJ and FTC articulates clear norms of unfair competition through policy statements, amicus briefs, and rule makings.

Hal Singer, managing director at Econ One Research and expert in antitrust has testified before Congress on various matters related to competition and antitrust enforcement. Singer sees the deficiencies in antitrust jurisprudence purposefully created to favor the accused corporation: “I learn about gaps in antitrust law when I see cases that I’m involved in fail and for no good reasons, but only just because a judge thinks that she’s hamstrung by existing precedent.”

“I see cases that I’m involved in fail and for no good reasons, but only just because a judge thinks that she’s hamstrung by existing precedent.”

For Singer, there are many “roads to reform” that can address these gaps: “one is that you bring new cases and you hope that you can get better law. The problem is that you have this installed base of judges who have been indoctrinated into the consumer welfare standard.” 

The other avenue, the path Singer is advocating for is targeted, surgical legislative strikes. According to Singer, “The Court is not going to fix itself. If you want to fix it, you got to have a legislative strike.” Whether it is a “surgical strike that would put workers on equal footing to consumers under the law” or legislation that instructs the court to consider innovation harms or a bill to address the “clear gap in monopsony cases for no poach [agreements],” Singer views targeted legislative strikes as an essential road forward to reform. Critically, Congress can pass legislation nullifying that case law which has subverted the original intent of antitrust laws based on the inaccurate historical accounts and hollow economic theories. 

Singer has testified before Congress in favor of a series of surgical legislative strikes targeted at dominant tech companies, including the issue of self-preferencing. He is a vocal advocate for the American Innovation and Choice Online Act, a bipartisan bill sponsored by Senators Amy Klobuchar (D-Minn.) and Charles E. Grassley (R-Iowa).

The legislation is targeted to only apply to the most dominant companies in tech. The bill would ban Big Tech firms from preferencing their products on their platform over the products of another business selling on their platform, prohibit the use of sales data of smaller companies operating on their platform to improve the sales of their rival products, require the platforms to be more interoperable, and curb excessive additional fees charged to smaller companies using these platforms. 

Through the bill, the FTC and DOJ are provided a new tool to address anticompetitive practices committed by Big Tech. The bill has not yet received a vote from the full Senate. Singer argues that the agencies still ought to bring suits and provide new merger guidelines, but the law needs to change to adapt to contemporary challenges and improve the likelihood that such suits are successful. 

While contemporary technology and business practices would require contemporary solutions, much of the monopolization and resulting societal woes are subject to existent, yet subdued laws and jurisprudence. The once dormant antitrust agencies can be awakened to again function in their full capacity “like a court of equity,” prohibiting “not only practices that violate the Sherman Act and the other antitrust laws, … but also practices that the Commission determines are against public policy for other reasons.” Antitrust laws can once again be true to the egalitarian intentions of those who originally crafted them. 

The pressure to act is mounting. A survey of American Economics Association members shows growing consensus and strong agreement that antitrust laws should be “enforced vigorously.” A majority of Americans now support aggressive antitrust enforcement: parents who were desperate and unable to buy baby formula; farmers who are being pushed to the edge of extinction by big agriculture; entrepreneurs; small business owners whose home-grown business failed after their products were replicated by Amazon and sidelined by the platform’s self-preferencing; stifled entrepreneurs and STEM PhDs who will opt to join a dominate firm rather than grow a high-tech, high opportunity start up; the working class being paid 20 percent less in a concentrated labor market which hinders their economic freedom.

In the fragility of our supply chains, baby formula crisis, price increases, poor working conditions, threats to our democracy, and every cable, health, and grocery bill, the public may soon recognize the costs of monopolization and grow weary from bearing the burden of autocracy in our economy. As Senator Sherman said in 1890, “If we will not endure a king as a political power, we should not endure a king over the production, transportation and sale of any of the necessaries of life.”

“As Senator Sherman said in 1890, “If we will not endure a king as a political power, we should not endure a king over the production, transportation and sale of any of the necessaries of life.”

Antitrust enforcement establishes a system of political economic checks and balances such that the citizen is centered in the economy and free of economic domination. We need only to choose to employ it. Our present condition is simply the result of an absence of will in the face of democratic and economic erosion. Supreme Court Justice Louis Brandeis wrote, “We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we cannot have both.”

From The [F]law:

• Shao Chang, Gig Economy and the Future of Work: Uber & Lyft’s race to the bottom–an opportunity to redefine work
  
• Adriel Williams, The Costs of Carceral Communications: How a Prison Telecommunications Company Exploits Incarcerated People and Their Loved Ones
• Julio Colby, Brave New Work: The Resurgence of Organized Labor in the U.S.: How corporations destroyed worker power, and how the pandemic might bring it back

From The Systemic Justice Journal:

• Jun Yoon, Putting the ‘Anti’ Back into Antitrust: The Need for Antitrust Reform in the Digital Age
• Elizabeth MeLampy, Fowl Play: Corporate Law and the Chicken Industry