The Supreme Court just quietly gutted antitrust law

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[Commentary] The Supreme Court recently delivered the most significant antitrust opinion by the Court in more than a decade --  Ohio v. American Express -- one that made it extraordinarily more difficult for the government to rein in certain companies that abuse their market power. In it, the Court dealt a huge blow to the ability of government and private plaintiffs to enforce existing antitrust laws, making it easier for dominant firms — especially those in the tech sector — to abuse their market power with impunity.

In practice, the Court has shielded from effective antitrust scrutiny a huge swath of firms that provide services on more than one side of a transaction — and, in today’s digital economy, there are many. Worse yet, the Court left unclear what kinds of businesses actually qualify for this new rule. What kinds of companies might have more freedom to exert pressure on customers, as a result of this decision? Not newspapers, the Court said: Readers are “largely indifferent” to the number of advertisements on newspaper pages, even though advertisers are looking to reach readers. So someone suing a newspaper on antitrust grounds (say, for prohibiting advertisers from doing business with other newspapers) would not have to prove that a newspaper’s conduct harmed both readers and advertisers. On the surface, the Court’s language suggests that the special rule would apply to Amazon’s marketplace for third-party merchants, to eBay, and to Uber — but not to Google search or Facebook.

For decades our courts have constructed an antitrust regime at odds with the values that Congress articulated when passing the antitrust laws. American Express marks a continuation of that abnegation. While the judiciary has claimed for itself significant authority over shaping the substantive content of antitrust policy, it’s time for both the antitrust agencies and lawmakers to reassert their power. The time for a robust and muscular antitrust regime is now.

[Lina Khan is director of legal policy with the Open Markets Institute]


The Supreme Court just quietly gutted antitrust law