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TABLE OF CONTENTS I. INTRODUCTION 693 II. AN OVERVIEW OF ANTITRUST ECONOMICS, THEORY, AND DOCTRINE 699 A. Antitrust Economics 701 1. Supply, Demand, Competition, and Monopoly 701 2. Utility and [...], The rise of large, market-concentrating technology firms like Amazon, Inc. is driving commentators, regulators, and politicians to rethink the law of antitrust. In particular, "New Antitrust" reformers propose that the narrow focus on consumer welfare has caused antitrust law to stop too short in corralling the broader social and economic consequences of Big Tech's "bigness." Proponents of the consumer welfare standard argue that it has worked well to distinguish beneficial competition from harmful aggression and, further, to reduce costly legal uncertainty. There is now momentum for substantial reform to antitrust law and practice and a growing debate about what such reform might include. This Article contributes to the debate by presenting a modest case study of a market that is evolving on Amazon, Inc.'s Marketplace platform: the market for nonprescription components of continuous positive air pressure (CPAP) machines, medical devices prescribed to patients suffering from sleep apnea. The study reveals two observations. First, the underlying economic and doctrinal logic of consumer welfare antitrust remains sound. Second, the study illustrates positive social consequences beyond just the economic wealth and welfare that the consumer welfare standard uses as its lodestar. This Article focuses on the second observation because New Antitrust reformers' core claim is that proponents of the consumer welfare approach are wrong to dismiss indirect negative social and economic consequences of bigness, such as harm to small business, stifling of innovation, and inequality. This Article follows the New Antitrust reformers into this space by illustrating counterbalancing social and economic consequences from Amazon's consolidation, including a thriving network of small and innovative dealers, other small innovators that serve them, increased employment opportunities, and even lowering of healthcare costs. Amazon has grown large and has concentrated online retail and related logistics, but its largeness has spurred innovation, competition, and social value-creation just upstream.

TABLE OF CONTENTS INTRODUCTION 1680 I. THE MEANING OF "MONOPOLIZATION" 1684 II. THE EXPANDING DOMAIN OF [section] 2 1688 III. MONOPOLIZATION AND FIRM STRUCTURE 1696 A. The Tort Theory of [...], Section 2 of the Sherman Act condemns firms who "monopolize," "attempt to monopolize, "or "combine or conspire"to monopolize--all without explanation. Section 2 is the antitrust law's only provision that reaches entirely unilateral conduct, although it has often been used to reach collaborative conduct as well. In general, [section] 2 requires greater amounts of individually held market power than do the other antitrust statutes, but it is less categorical about conduct. With one exception, however, the statute reads so broadly that criticisms of the nature that it is outdated cannot be based on faithful readings of the text. The one exception is competitive injuries that occur in secondary or complementary markets where they do not realistically threaten monopoly. While this problem is ubiquitous in the law of monopolization, it is particularly prominent in networks. Competition on multifirm networks requires collaboration. As markets have become more networked a significant emergent problem is actions by dominant firms that cause competitive harm in secondary markets. For these, the United States would do better to incorporate an "abuse of dominance" standard. This approach would be far superior to many recently proposed bills that address the issue of "self-preferencing," or dominant firm favoritism toward their own products. These bills are too narrow in that they single out a small set of firms for adverse treatment, usually without regard to market power. They are also too broad, however, to the extent that they identify a great deal of harmless and socially beneficial conduct as abusive. This Article additionally explores several related areas in which antitrust policy toward monopolization should take a different approach, particularly in networked markets. These include (1) Vertical Integration, Refusal to Deal, and Self-Preferencing; (2) Mergers as Exclusionary Practices; (3) Anticompetitive Product Design and Restraints on Innovation; (4) Strategic, Exclusionary Pricing; and (5) Anticompetitive Intellectual Property Practices.

ABSTRACT 148 I. WHAT ARE CLICKWRAP AGREEMENTS? 148 II. WHAT ARE BROWSEWRAWP AGREEMENTS? 150 A. Voidability 153 B. Consideration 154 C. Damages 156 D. Arbitration 160 E. Mutual Assent 165 [...], This Article explores numerous aspects of contract law, as it pertains to adhesion contracts in the form of 'Terms of Agreement' or 'Terms of Service.' When the user makes an account or makes themselves a registered user to the entity, this is known as clickwrap, and when there is no account made and the user assents to the contract by simply using a service or website it's known as browsewrap. This Article will also explore key issues that currently arise within the discipline, as well as the potential routes the issues could take in the future. As of the submission of this writing, there have been numerous lawsuits regarding clickwrap contract disputes headlining the media and a lingering tension between many of the companies brought into question in this Article and the United States Government over antitrust and privacy issues. Moreover, as contracts of this nature become more prevalent and complex, this writing aims to benefit the practicing attorney only marginally more than the steadfast consumer, as individuals attempt to navigate the rapidly expanding and often confusing digital world. The research is centered around the fundamental construction of clickwrap & browsewrap contracts covering many of the foundational pieces of contracts legal issues, such as: offer, acceptance, consideration, and genuineness of assent. We will also analyze the key points of contention, which many recent lawsuits relevant to the topic are centered around, such as forced arbitration clauses and proximately caused damages.

Big Tech today faces unprecedented levels of antitrust scrutiny. Yet antitrust enforcement against Big Tech still faces a major obstacle: the Supreme Court's 2018 decision in Ohio v. American Express. [...]

INTRODUCTION 432 I. ADOPTION OF DIGITAL TECHNOLOGY 439 II. THE MEDICAL EVIDENCE ON CONSUMER COGNITIVE AND PSYCHIATRIC HARMS FROM DIGITAL BUSINESSES 442 A. Overview 442 B. Addiction and Digital Technologies [...], The advent of mobile devices and digital media platforms in the past decade represents the biggest shock to cognition in human history. Robust medical evidence is emerging that digital media platforms are addictive and, when used in excess, harmful to users' mental health. Other types of addictive products, like tobacco and prescription drugs, are heavily regulated to protect consumers. Currently, there is no regulatory structure protecting digital media users from these harms. Antitrust enforcement and regulation that lowers entry barriers could help consumers of social media by increasing competition. Economic theory tells us that more choice in digital media will increase the likelihood that some firms will vie to offer higher-quality and safer platforms. For this reason, evaluating harm to innovation (especially safety innovation) and product variety may be particularly important in social media merger and conduct cases. Another critical element to antitrust enforcement in this space is a correct accounting of social media's addictive qualities. Standard antitrust analysis seeks to prohibit conduct that harms consumer welfare. Economists have taught the antitrust bar that the output of a product or service is a reliable proxy for consumer welfare. However, output and welfare do not have this relationship when a product is addictive. Indeed, in social media markets, increased output is often harmful. We argue that antitrust analysis must reject the output proxy and return to a focus on consumer welfare itself in cases involving addictive social media platforms. In particular, courts should reject defenses that rely only on gross output measures without evidence that any alleged increases in output actually benefit consumers.

ABSTRACT The large American corporation faces ever-rising pressure to pursue a purpose beyond shareholder profit. This rising pressure interacts with sharp changes in industrial organization in a way that has [...]

Abstract: Due to the embrace of modern portfolio theory, most of the stock market is controlled by institutional investors holding broadly diversified economy-mirroring portfolios. Recent scholarship has revealed the anti-competitive [...]

I. INTRODUCTION II. CURRENT EVENTS III. THE PURPOSE OF ANTITRUST LAWS IV. EVALUATING MARKET POWER A. Product Market B. Geographic Market V. MONOPOLIES VI. ANTICOMPETITIVE BEHAVIORS A. Prices B. Consumer [...]

TABLE OF CONTENTS INTRODUCTION 1441 I. PAST ANTITRUST ERAS 1444 A. The Formative Era, 1890-1911 1444 B. The First Rule of Reason Era, 1911-1935 1448 C. The Fairness Era, 1935-1975 [...], Antitrust scholars frequently refer to an "ideological pendulum" to describe the rise and fall of trends in the evolution of antitrust law. This pendulum arguably swings between fairness and laissez-faire visions, while a technocracy vision moderates its motion. Mapping key phases in the evolution of antitrust law, I argue that a new antitrust era with distinctive characteristics has been forming in recent years. The present new antitrust era is a product of growing tensions and contradictions among policy prescriptions. After several decades in which antitrust was a specialized field that drew little public attention, in the aftermath of the Great Recession, antitrust became a proxy for disagreements over economic policies. Today, antitrust law exemplifies striking discrepancies among positions advanced by the Supreme Court, the established antitrust technocracy, political populism, and economics. This resurrection of public and political interest in antitrust, I argue, marks the end of one antitrust era and the beginning of another.

INTRODUCTION Compatibility standards comprise a critical part of the information and communications technology sector. From Wi-Fi and 4G cell phone standards to the ubiquitous JPEG and MPEG file formats, many [...], Much attention has been paid in recent years to legal issues arising from standard setting, assertion of standard-essential patents, and the requirements imposed by standard-setting organizations that standard-essential patents be licensed on reasonable terms. This Feature argues that a fundamental aspect of the antitrust laws, heretofore overlooked in this context, 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. It has long been a basic principle of antitrust law that when firms collaborate to engage in conduct that has efficiency benefits, like standard-setting, they violate the antitrust laws if their collaboration also harms competition more than necessary to obtain the efficiency benefits. Both standard-setting organizations and their members can violate Section 1 of the Sherman Act if the organization's rules are ineffective in preventing owners of standard-essential patents from exploiting the monopoly power they gain as a result of the standard.

INTRODUCTION For over a century, antitrust law has provided the principal framework for competition enforcement in the United States, with the Department of Justice (DOJ), the Federal Trade Commission (FTC), [...], Because regulation works alongside antitrust law to govern market structure and economic conduct in the United States, deregulatory cycles can create gaps in competition enforcement. Antitrust is sometimes portrayed as just another form of government intervention that a deregulatory administration should also diminish. This Feature argues that policy makers should resist that political logic. Instead, antitrust should become stronger as regulation becomes weaker. Antitrust as a countercyclical force to deregulation will most directly help to protect consumers from enforcement gaps that result as competition-related rules recede. But antitrust enforcement in deregulating markets can also help to demonstrate where antitrust can govern markets more effectively and efficiently than regulation; it can provide the federal courts with an opportunity to clarify recent Supreme Court decisions on the boundary between antitrust and regulation; and it can better inform ongoing policy debates about the effectiveness of antitrust by providing a more accurate view of what antitrust enforcement can accomplish with its existing legal and analytic framework. Not only is each of these benefits of countercyclical antitrust enforcement important in its own right, but together they can lead to better policy choices between antitrust and regulatory solutions as political cycles change over time.

INTRODUCTION In the typical merger case considered by antitrust law, the main concern is that the merging parties--two airlines, say--will be able to raise the prices they charge purchasers. Some [...], This Feature examines the antitrust treatment of mergers that harm sellers. We separately consider two mechanisms of harm, increased classical monopsony power and increased bargaining leverage. We show that lost upstream competition is an actionable harm to the competitive process. Our central claim is that harm to sellers in an input market is sufficient to support antitrust liability. We defend this conclusion against the contrary view that demonstrated harm to the merging firms' downstream purchasers or final consumers is an essential element of any antitrust claim. Nor is it necessary for plaintiffs to demonstrate a reduction in the input quantity transacted. We further argue that claimed "efficiencies" premised on a reduction in buy-side competition are not efficiencies at all.

Abstract: Effective competition policy is critical to the success of U.S. health care reform, including efforts to reduce health care costs, increase quality of care, and expand access to health [...]

4. New Services, Products, or Business Models Are Incompatible with Legacy Regulations Regulatory incompatibility is often a path to exclusion. It can be apparent when a new business model obviously [...]