William & Mary Business Law Review
Abstract
Antitrust Division head Jonathan Kanter recently proclaimed that “the era of lax enforcement is over, and the new era of vigorous and effective antitrust law enforcement has begun.” Federal enforcers have indeed been active; the DOJ has sued Google in two separate actions, and the FTC has brought an action against Facebook.
While bringing these cases is an important first step to achieving a more robust antitrust enforcement regime, a significant obstacle to an antitrust renaissance remains—overcoming the strong gravitational pull of Chicago School theory that has dominated antitrust thought for the past half-century. Chicago School principles have not kept pace with a business world that has evolved from a brick-and-mortar economy into the digital age. Chicago School thought has grown increasingly less relevant in addressing twenty-first century antitrust issues. A second obstacle to an antitrust renaissance is the Rule of Reason as currently construed by the courts. Plaintiffs almost never win Rule of Reason cases. Until courts construe the Rule of Reason in a manner that is truly party-neutral, the cards will remain stacked against antitrust plaintiffs.
To succeed in restoring antitrust to its proper role in our economy, antitrust enforcers must:
- Refocus the courts on the historic and fundamental role of the antitrust laws to protect competition and not simply to assure allocative efficiency;
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Persuade courts that, contrary to Trinko and its progeny, monopoly in and of itself may pose a threat to competition;
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Convince courts that dominant firms can exclude rivals by using above-cost pricing strategies, thereby rendering the cost-based approach to predation enunciated in Brooke Group woefully underinclusive; and
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Demonstrate to the courts that the Rule of Reason as implemented by the courts is neither administrable nor party-neutral and develop a construction of the Rule Reason that is fair to all parties.