Lucid, highly readable, and full of rich social and political implications, “The Antitrust Paradox” illustrates how the purpose and integrity of law can be subverted. Winter Robert Bork, The Antitrust Paradox: A Policy at. War with Itself. Paul H. Brietzke. This Book Review is brought to you for free and open access by the. Jan 3, In his highly influential work, The Antitrust Paradox, Robert Bork asserted that the sole normative objective of antitrust should be to maximize.
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Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead.
Through this strategy, the company has positioned itself at the center of e-commerce and now serves as essential infrastructure for a host of other businesses that depend upon it. Specifically, current doctrine underappreciates the risk of predatory pricing and laradox integration across distinct business lines may prove anticompetitive.
These concerns are heightened in the context of online platforms for two reasons.
First, the economics of platform markets create incentives for a company to pursue growth over profits, a strategy that investors have rewarded. Under these conditions, predatory pricing becomes highly rational—even as existing doctrine treats it as irrational and therefore implausible.
Second, because online platforms serve as critical intermediaries, integrating across business lines positions these platforms to control the essential infrastructure on which their rivals depend. This dual role also enables a platform to exploit information collected on companies using its services to undermine them as competitors.
Amazon’s Antitrust Paradox
Lynn for introducing me to these issues in the first place. For thoughtful feedback at paeadox stages of this project, I am also grateful to Christopher R. All errors are my own. Customers celebrated and the competition languished. Nevertheless, a segment of shareholders believed that by dumping money into advertising and steep discounts, Amazon was making a sound paaradox that would yield returns once e-commerce took off.
Each quarter the company would report losses, and its stock price would rise. Ponzi Scheme or Wal-Mart of the Web? Sixteen years on, nobody seriously doubts that Amazon is anything but the titan of twenty-firstcentury commerce. Although Amazon has clocked staggering growth—reporting double-digit increases in net sales yearly—it reports meager profits, choosing to invest aggressively instead.
Due to a change in legal thinking and practice in the s and s, antitrust law now assesses competition largely with an eye to the short-term interests of consumers, not producers or the health of the market as a whole; antitrust doctrine views low consumer prices, alone, to be evidence of sound competition.
By this measure, Amazon has excelled; it has evaded government scrutiny in part through fervently devoting its business strategy and rhetoric to reducing prices for consumers. With its missionary zeal for consumers, Amazon has marched toward monopoly by singing the tune of contemporary antitrust. Focusing on these metrics instead blinds us to the potential hazards. My argument is that gauging real competition in the twenty-first century marketplace—especially in the case of online platforms—requires analyzing the underlying structure and dynamics of markets.
Rather than pegging competition to a narrow set of outcomes, this approach would examine the competitive process itself. Anttirust is the approach I adopt in this Note. Part I gives an overview of the shift in antitrust away from economic structuralism in favor of price theory and identifies how this departure has played out in two areas of enforcement: Part II questions this narrow focus on consumer welfare as largely measured by prices, arguing that assessing structure is vital bbork protect important antitrust values.
The Antitrus then assesses how antitrust law can address the challenges raised by online platforms like Amazon. Part V considers what capital markets suggest about the economics of Amazon and other internet platforms. Part VI offers two approaches for addressing the power of dominant platforms: One of the most significant borkk in antitrust law and interpretation over the last century has been the move away from economic structuralism.
In this Part, I trace this history by sketching out how a structure-based view of competition has been replaced by price theory and exploring how this shift has played out through changes in doctrine and enforcement.
Broadly, economic structuralism rests on the idea that concentrated market structures promote anticompetitive forms of conduct. This market structure-based understanding of competition was a foundation of antitrust thought and policy through the s. Subscribing to this bok, courts blocked mergers that they determined would lead to anticompetitive market structures.
Antiteust some instances, this meant halting horizontal deals—mergers combining two direct competitors operating in the same market or product line—that would have handed the new entity a large share of the market. The Chicago School obrk to antitrust, which gained mainstream paradx and credibility in bori s and s, rejected this structuralist view.
The Chicago School approach bases its vision of industrial organization on a bor theoretical premise: A failure to act in this fashion will be punished by the competitive forces of the market. While economic structuralists believe that industrial structure predisposes firms toward certain forms of behavior that then steer market outcomes, the Chicago School presumes that market outcomes—including firm size, industry structure, and concentration levels—reflect the interplay of standalone market forces and the technical demands of production.
Practically, antitrudt shift from structuralism to price theory had two major ramifications for antitrust analysis. First, it led to a significant narrowing of the concept abtitrust entry barriers.
An entry barrier is a cost that paraodx be borne by a firm seeking to enter an industry but is not carried by firms already in the industry. The second consequence of the shift away from structuralism was that consumer prices became the dominant metric for assessing competition.
In his highly influential work, The Antitrust ParadoxRobert Bork asserted that the sole normative objective of antitrust should be to maximize consumer welfare, best pursued through promoting economic efficiency. The merger guidelines issued by the Reagan Administration—a radical departure from the previous guidelines, written in —reflected this newfound focus.
Yale Law Journal – Amazon’s Antitrust Paradox
It is true that antitrust authorities do not ignore non-price effects entirely. The Horizontal Merger Guidelines, for example, acknowledge that enhanced market power can manifest as non-price harms, including in the form of reduced product quality, reduced product variety, reduced service, or diminished innovation. Two areas of enforcement that this reorientation has affected pxradox are predatory pricing and vertical integration.
Through the mid-twentieth century, Congress repeatedly enacted legislation targeting predatory pricing. Congress, as well as state legislatures, viewed predatory pricing as a tactic used by highly capitalized firms to bankrupt rivals and destroy competition—in other words, as a tool to concentrate control.
Laws prohibiting predatory pricing were part of a larger arrangement of pricing laws that sought to distribute power and opportunity. However, a controversial Supreme Court decision in the s created an opening for critics to attack the regime. In its antitrust case against the company, the government argued that a suite of practices by Standard Oil—including predatory pricing—violated section 2 of the Sherman Borkk. The Supreme Court ruled for the government and ordered the break-up of the company.
Recognizing the threat of predatory pricing executed by Standard Oil, Congress passed a series of laws prohibiting such conduct. In Congress enacted the Clayton Act 55 to strengthen the Sherman Act and included a provision to curb price discrimination and predatory pricing.
Fair trade legislation granted producers the right to set the final retail price of their goods, limiting the ability of chain stores to discount. After the Supreme Court in struck down the form of resale price maintenance enabled by fair trade laws, 59 Congress in carved out an exception for state fair trade laws through the Miller- Tydings Act.
This Act prohibited price discrimination by retailers among producers and by producers among retailers. This series of antitrust laws demonstrates that Congress saw predatory pricing as a serious threat to competitive markets. By the mid-twentieth century, the Supreme Court recognized and gave effect to this congressional intent. The Court upheld the Robinson- Patman Act numerous times, holding that the relevant factors were whether a retailer intended to destroy competition through its pricing practices and whether its conduct furthered that purpose.
Liquidating excess or perishable goods, for example, was considered fair game. In Utah Pie Co. A locational advantage gave Utah Pie cheaper access to the Salt Lake City market, which it used to price goods below those sold by competitors.
Other frozen pie manufacturers, including Continental, began selling at below-cost prices in the Salt Lake City market, while keeping prices in other regions at or above cost. Utah Pie brought a predatory pricing case against Continental. The decision was controversial. Prior to the alleged predation, Utah Pie had controlled The case presented an opportunity for critics of predatory pricing laws to attack the doctrine as misguided.
This, as more recent economic literature confirms, is at best a highly dubious presumption. Defendants were convicted not of injuring competition but, quite simply, of competing. As the writings of Bowman and Bork suggest, the Chicago School critique of predatory pricing doctrine rests on the idea that below-cost pricing is irrational and hence rarely occurs.
Second, even if a competitor were to drop out, the predator would need to sustain monopoly pricing for long enough to recoup the initial losses and successfully thwart entry by potential competitors, who would be lured by the monopoly pricing.
The uncertainty of its success, coupled with its guarantee of costs, made predatory pricing an unappealing—and therefore highly unlikely—strategy. As the influence and credibility of these scholars grew, their thinking shaped government enforcement. During the s, for example, the number of Robinson- Patman Act cases that the FTC brought dropped dramatically, reflecting the belief that these aantitrust were of little economic concern.
The Chicago School critique came to shape Supreme Court doctrine on predatory pricing. The depth and degree of this influence became apparent in Matsushita Botk Industrial Co. Thus mistaken inferences in cases such as oaradox one are especially costly, paraddox they chill the very conduct the antitrust laws are designed to protect. Although Matsushita focused on a narrow issue—the summary judgment standard for claims brought under Section 1 of the Sherman Act, which targets coordinationamong parties 94 —it has been widely influential in monopolization ahtitrust, which fall under Section 2.
In other words, reasoning that originated in one context has wound up in jurisprudence applying to totally distinct circumstances, even as the underlying violations differ vastly. In Brooke Group Ltd. The case involved cigarette manufacturing, an industry dominated by six firms.
In placing recoupment at the center of predatory pricing analysis, the Court presumed that direct profit maximization is the singular goal of predatory pricing. Today, succeeding on a predatory pricing claim requires a plaintiff to meet the Brooke Group recoupment test by showing that the defendant would be able to recoup its losses through sustaining parzdox prices.
Since the Court introduced this recoupment requirement, the number of cases brought and won by plaintiffs has dropped dramatically. Analysis of vertical integration has similarly moved away from structural concerns. Serious concern about vertical integration took hold in the wake of the Great Depression, when both the law and economic theory became sharply critical of the phenomenon. Partly because it antitruts that the Supreme Court had failed to use existing law to block vertical integration through acquisitions, Congress in amended section 7 of the Clayton Act to make it applicable to vertical mergers.
Critics of vertical integration aantitrust focused on two theories of potential harm: Leverage reflects the idea that a firm can use its dominance in one line of business to establish dominance in another. A flourmill that also owned a bakery could bbork prices or degrade quality when selling to rival bakers—or refuse to do business with them entirely. In this view, even if an integrated firm did not directly resort to exclusionary tactics, the arrangement would still increase barriers to entry by requiring would-be entrants to compete at two levels.
When seeking to block vertical combinations or arrangements, the government frequently built its case on one of these theories—and, through the s, courts largely accepted them.
Another reason courts cited for brk these arrangements was that vertical deals eliminated potential rivals—a recognition of how a merger would reshape industry structure.
In the s—while Congress, enforcement agencies, and the courts recognized potential threats posed by vertical arrangements—Chicago School scholars began to cast doubt on the idea that vertical integration has anticompetitive effects.