High Tech Monopolies: Cutting The Gordian Knot With No-Fault

University of Pennsylvania Law Review Online, Volume 168:1, Page 253

University of Baltimore School of Law Legal Studies Research Paper Forthcoming

11 Pages Posted: 28 Apr 2021

See all articles by Robert H. Lande

Robert H. Lande

University of Baltimore - School of Law

Date Written: April 21, 2021

Abstract

Nascent Competitors and Antitrust Enforcement Regulation and Digital Platforms are excellent articles. Both raise timely and extremely important problems and analyze them rigorously. Sadly, neither offers practical solutions that courts often will utilize due to a Gordian knot of existing judicial precedent. The only way an effective solution could arise would be if courts undertake a textualist analysis of the Sherman Act and thereby adopt no-fault monopolization, holding that firms violate Section 2 regardless of whether they engaged in anticompetitive conduct.

The no-fault approach is also not permitted under current case law. However, the no-fault approach to Section 2 would be based upon a textualist or “fair meaning” approach to statutory interpretation, and no court has ever analyzed this issue using a textualist framework. Textualism, long pioneered by Justice Scalia, has been firmly embraced by Justices Kavanaugh, Gorsuch, and Barrett. It also has sometimes been undertaken by other members of the Court.

For the reasons provided in this piece, an optimist can hope that an increasingly textualist Court would reinterpret Section 2’s prohibition against firms that “monopolize, or attempt to monopolize” to constitute a no-fault approach to monopolization and attempted monopolization law.

Keywords: monopoly, monopolize, monopolization, no-fault, no-fault monopolization, attempted monopolization, textualism, textualist, Sherman Act, Section 2, anticompetitive, dominant firm, high tech, high tech monopoly, high tech platform, digital platform, antitrust, revitalize antitrust, Scalia, Google

JEL Classification: K21

Suggested Citation

Lande, Robert H., High Tech Monopolies: Cutting The Gordian Knot With No-Fault (April 21, 2021). University of Pennsylvania Law Review Online, Volume 168:1, Page 253, University of Baltimore School of Law Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3831206

Robert H. Lande (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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