Antitrust Law

This Essay focuses largely on structural responses to AI pricing in antitrust, outlining the bulk of its argument in the context of merger law but also considers monopolization law and exclusionary conduct. It argues that the relationship between the strictness of the law and the sophistication of AI pricing is not straightforward. In the short run, a stricter approach to merger review might well make sense, but as AI pricing becomes more sophisticated, merger policy ought to become less strict: if anticompetitive outcomes are inevitable with or without a merger because of highly sophisticated AI pricing, antitrust interventions to stop mergers will not affect pricing and instead will create social losses by impeding efficient acquisitions. This Essay considers similar questions in the context of monopolization. It concludes by observing that the rise of AI pricing will strengthen the case for antitrust law to shift its focus away from high prices and static allocative inefficiency and toward innovation and dynamic efficiency.

This Comment analyzes the entrance of institutional investors into the single-family rental market after the Great Recession of 2008. The collapse of the housing market during the Great Recession fundamentally changed the ownership structure of U.S. single-family homes. This post-recession reality has introduced a housing puzzle: the pricing trends of single-family rentals in the decade after the Great Recession suggest that institutional investors have captured monopolistic power over the single-family rental market despite owning a relatively small market share. Thus, this Comment evaluates the housing puzzle through the lens of antitrust law.

While a potential antitrust case appears to suffer from the critical weaknesses of low entry barriers and market shares, analyzing the institutional entrance into the single-family rental market under antitrust merger doctrine reveals that the case is stronger than it may initially seem. After evaluating the antitrust case, this Comment considers how the housing market can instruct antitrust doctrine’s further evolution, since commentators across academia, the media, and politics all criticize institutional entrance. By highlighting how unique market facts in housing obfuscate market power, this Comment suggests expanding the merger analysis to include not just levels and changes in concentration, but also orders of magnitude.

The Chicago School, said to have influenced antitrust analysis inescapably, is associated today with a set of ideas and arguments about the goal of antitrust law. In particular, the Chicago School is known for asserting that economic efficiency is and should be the only purpose of antitrust law and that the neoclassical price theory model offers the best policy tool for maximizing economic efficiency in the real world; that corporate actions, including various vertical restraints, are efficient and welfare-increasing; that markets are self-correcting and monopoly is merely an occasional, unstable, and transitory outcome of the competitive process; and that governmental cures for the rare cases where markets fail to self-correct tend to be “worse than the disease.”

Open, competitive markets are a foundation of economic liberty. A lack of competition, meanwhile, can enable dominant firms to exercise their market power in harmful ways.