Antitrust

Mainstream antitrust policy is grounded in economics and views the protection of competition as antitrust’s singular goal. But the populist “antimonopoly movement” believes that antitrust should focus less on economic issues and more on the political influence of large firms. While the courts have long embraced the economic approach to antitrust, antimonopolists have recently gained some support in politics. This battle of ideas is therefore poised to determine the future of antitrust. Antitrust law currently suffers from a number of problems, but the antimonopoly movement does not offer serious solutions. On the contrary, by deemphasizing tangible economic harms in favor of abstract political concerns, it would cause immense economic damage. Antitrust populism is grounded in the moralistic belief that large companies are inherently detrimental to society, overlooking the fact that most big firms attained their success by providing significant economic benefits to the public, such as better products or lower prices. This Essay argues that rather than punishing bigness for its own sake, antitrust should focus on proscribing anticompetitive behavior and ensuring that all firms can compete on a level playing field.

In the first days of his second administration, Donald Trump announced a series of steep tariffs on goods imported into the United States. In addition to angering America’s trading partners, the tariffs have frustrated American consumers already worried about inflation. Although importing firms may absorb some of the assessed levy, tariffs generally have an inflationary effect. This Essay explores a less appreciated mechanism by which tariffs increase prices: facilitating the creation and maintenance of illegal price-fixing conspiracies.

In Snyder v. United States, the Supreme Court held that a federal criminal statute covers only bribes, not gratuities. The key issue in factually similar cases is whether a quid pro quo agreement occurred. The Snyder Court provided no guidance on this issue. This Comment responds by turning to antitrust law. Antitrust faces the same problem as bribery law: determining whether an illegal agreement occurred when both parties benefit from it. Antitrust has developed several “plus factors” to explain what circumstantial evidence suffices to prove an illegal agreement. This Comment uses that antitrust framework to propose ten bribery plus factors.

Search costs matter and are reflected in many areas of law. For example, most disclosure requirements economize on search costs. A homeowner who must disclose the presence of termites saves a potential buyer, and perhaps many such buyers, from spending money to search, or inspect, the property. Similarly, requirements to reveal expected miles per gallon, or risks posed by a drug, economize on search costs. But these examples point to simple strategies and costs that can be minimized or entirely avoided with some legal intervention. Law can do better and take account of more subtle things once sophisticated search strategies are understood. This Essay introduces such search strategies and their implications for law.

The importance of aggregation and division in modern antitrust policy cannot be overstated. Illegal acts of collusion are defined by the agreement of separate competitors to join together in acting as though they were a single firm in a collusive scheme.

Earlier this year, after suffering from depression, University of Michigan football lineman James Hudson applied to transfer to the University of Cincinnati.