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On June 25, 2018, the U.S. Supreme Court issued what may be the worst antitrust decision in many decades: Ohio v. American Express Co. (Amex). (1) In an opinion authored [...]

Table of Contents Introduction I. The Breakup Debates A. Increased Corporate Concentration and Firm Dominance B. Antitrust Remedies to Concentration and Dominance C. The Law Governing Breakups and Their Labor [...], Trust-busting is once again a subject of national attention. And the attention is well-deserved: unprecedented levels of corporate concentration, firm dominance, and inequality demand robust debate about how antitrust solutions can ensure that our economy works for everyone. One simple remedy to "bigness" has stolen the spotlight within that debate--"breaking up" big firms into smaller ones to decrease corporate power and lower prices. But calls to break up firms from Big Tech to Big Ag have focused on how breakups could benefit consumers and, in some cases, small businesses. Absent from these debates is how breakups benefit or harm the workers and labor markets affected by firm dismantling. This Article is the first to focus on how firm breakups--and antitrust enforcement and remedial design more generally--can and have significantly impacted workers' countervailing power and earning potential. Firm structure matters for worker power. Dismantling dominant firms can result in more firms competing for workers' services, which can lift worker wages. But it can also dismantle structures of worker power that have arisen to successfully counter dominant employers. A leading example, as this Article documents, is the devastating effect of the 1980s breakup of the Bell System on the Communications Workers of America, gutting union density within the telecommunications industry from 56 percent prebreakup to 24 percent by 2001. Breakups, much like workplace "fissuring," can decimate labor market institutions that advocate on workers' behalf, but also have and can result in layoffs, increased obstacles for worker coordination, lower overall wage rates, and dramatic reductions in earned benefits, job security, and the quality of working conditions. The Article fills the gap in antitrust scholarship and policy debates that have ignored the effects of antitrust remedies on workers. It offers the first comprehensive scholarly treatment of these effects and argues that, for historical, theoretical, and empirical reasons, antitrust enforcers and scholars must attune their prescriptions and remedial mechanisms to ensure that antitrust remedies do not perpetuate the long history of antitrust law's alternating hostility to or disregard for worker welfare. It begins by summarizing the debates around firm breakups and reveals their disregard for labor market competition and worker welfare. It then unearths case studies and social scientific analyses to assess the effects of breakups and offers a theoretical and empirical overview of when breaking up firms can benefit or harm labor market competition and workers' countervailing power against dominant employers. It concludes by proposing alternative remedies to monopolization and corporate consolidation that better secure worker welfare.

I. INTRODUCTION: A POLICY AT WAR WITH ITSELF II. THE OUTPUT-WELFARE FALLACY A. HISTORICAL ORIGINS B. APPIJCA TION TO ANTITRUST: THE RISE OF CIIICA GO C. ENTERING THE MAINSTREAM, III. [...], A fallacy lies at the core of modern antitrust. The same scholars who successfully advanced a singular consumer-welfare goal simultaneously argued that output effects should be the exclusive criterion for analysis. This output-welfare framework entered mainstream discourse, was endorsed by enforcers and judges, and played a pivotal role in the Supreme Court's recent Ohio v. American Express opinion. Yet despite its centrality, outputism has largely escaped notice. When exposed to systematic evaluation, the previously assumed link between output and welfare breaks down. A wide variety of conduct can push output and welfare in opposite directions. Moreover, purely outputist analysis is often unworkable in markets--for labor, social networking, online search, and more--that are of particular interest to contemporary antitrust. Recognizing the Output-Welfare Fallacy offers substantial payoffs. It illuminates and undercuts a fundamental illogic that motivates outputist judicial decisions, which warrant swift reversal. Market power can be defined as the power to control competition, rather than power to profitably reduce output. Plaintiffs need not demonstrate an output reduction to carry their initial burden of proof. Conversely, defendants need not prove that output increased in order to make out a valid procompetitive justification. In general, moving beyond the narrow confines of output-based analysis enables the application of a more coherent, practical, and efficient antitrust framework.

Was Standard Oil a platform? That question seems particularly salient for antitrust. Platforms (or twosided markets) (1) have recently been the subject of intense debate in competition law circles. Several [...], Few issues have aroused more interest in both regulatory and academic circles than the role that "platforms" play in markets and society. Courts, commentators, and policymakers are confronting the challenges that platforms pose, from data privacy to content moderation to competition concerns over the concentration of economic power in a few large platform firms. The Supreme Court has recently decided what is likely to be the first of many cases on antitrust analysis of platforms. Major platform firms that dominate the economy--Google, Amazon, Facebook, and Apple--are facing intense scrutiny from regulators, including several pending bills aimed at regulating platforms. This Article seeks to disentangle the many concerns about platforms, focusing on the role of antitrust, which has an outsized role to play in platform regulation. Platform and two-sided are not just descriptions of firms or markets; they carry with them specific market and wealth effects--what I call platform effects--that are distinct from other, similar economic characteristics of platforms, such as network effects. It is easy for courts to miss platform effects and their unique role in understanding platform business practices, as arguably happened in both the Supreme Court's recent Ohio v. American Express case on antitrust analysis of two-sided markets and the pending Epic Games v. Apple antitrust litigation over Apple's App Store. Nor is the problem limited to courts. Legislation recently introduced in Congress would replicate the errors made in the American Express litigation. Failure to recognize platform effects has caused substantial confusion about how platforms can both benefit and harm the economy. This Article clears some of that confusion. Platforms are attractive targets for both antitrust enforcers and policymakers by virtue of their size and market concentration, and platform effects can provide an essential (and currently lacking) framework for thinking about the antitrust problems platforms pose. Recognition of platform effects requires thinking selectively about platforms and their specific business practices and alters antitrust analysis of platform markets in important and surprising ways. CITATION: Thomas B. Nachbar, Platform Effects, 62 JURIMETRICS J. 1-40 (2021).

The rise of the digital economy spurred interest in the application of antitrust to so-called two-sided or multi-sided platforms--an area that has attracted the attention of academics and policymakers. (1) [...]