By Robert H. Lande (University of Baltimore)
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.
