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 how 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.

I am deeply grateful to David Singh Grewal for encouraging me to pursue this project and to Barry C. Lynn for introducing me to these issues in the first place. For thoughtful feedback at various stages of this project, I am also grateful to Christopher R. Leslie, Daniel MarkovitsStacy Mitchell, Frank Pasquale, George Priest, Maurice Stuckeand Sandeep Vaheesan. Lastly, many thanks to Juliana BrintUrja Mittal, and the Yale Law Journal staff for insightful comments and careful editing.

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 investment 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. This 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 to protect important antitrust values.

The Note 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 changes 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 view, courts blocked mergers that they determined would lead to anticompetitive market structures. In 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 approach to antitrust, which gained mainstream prominence and credibility in the s and s, rejected this structuralist view.

The Chicago School approach bases its vision of industrial organization on a simple 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, the shift from structuralism to price theory had two major ramifications for antitrust analysis. First, it led to a significant narrowing of the concept of entry barriers. An entry barrier is a cost that must 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.

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 dramatically 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 Act. 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 cases 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 Electric Industrial Co. Thus mistaken inferences in cases such as this one are especially costly, because 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 cases, 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 supracompetitive 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 believed 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 primarily 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 hike 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 blocking 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. And if integration failed to yield efficiencies, then the integrated firm would have no cost advantages over unintegrated rivals, therefore posing no risk of impeding entry.

Chicago School theory holds that concerns about both leverage and foreclosure are misguided. In the rare case that vertical integration did create this form of market power, he believed that it would be disciplined by actual or potential entry by competitors.

With the election of President Reagan, this view of vertical integration became national policy. In andthe Department of Justice DOJ and the FTC issued new merger guidelines outlining the framework that officials would use when reviewing horizontal deals.

In each case, consumer advocates opposed the de a l and warned that the tie-up would concentrate significant power in the hands of a single company, which it could use to engage in exclusionary practices, hike prices for consumers, and dock payments to content producers, such as TV screenwriters and musicians.

Nonetheless, the DOJ attached certain behavioral conditions and required a minor divestiture, ultimately approving both deals. The current framework in antitrust fails to register certain forms of anticompetitive harm and therefore is unequipped to promote real competition—a shortcoming that is illuminated and amplified in the context of online platforms and data-driven markets.

This failure stems both from assumptions embedded in the Chicago School framework and from the way this framework assesses competition. Notably, the present approach fails even if one believes that antitrust should promote only consumer interests. Critically, consumer interests include not only cost but also product quality, variety, and innovation. But more importantly, the undue focus on consumer welfare is misguided.

It betrays legislative history, which reveals that Congress passed antitrust laws to promote a host of political economic ends—including our interests as workers, producers, entrepreneurs, and citizens. It also mistakenly supplants a concern about process and structure i.

Antitrust law and competition policy should promote not welfare but competitive markets. By refocusing attention back on process and structure, this approach would be faithful to the legislative history of major antitrust laws.

It would also promote actual competition—unlike the present framework, which is overseeing concentrations of power that risk precluding real competition. As discussed in Part I, modern doctrine assumes that advancing consumer welfare is the sole purpose of antitrust. But the consumer welfare approach to antitrust is unduly narrow and betrays congressional intent, as evident from legislative history and as documented by a vast body of scholarship.

I argue in this Note that the rise of dominant internet platforms freshly reveals the shortcomings of the consumer welfare framework and that it should be abandoned. Strikingly, the current approach fails even if one believes that consumer interests should remain paramount. Focusing primarily on price and output undermines effective antitrust enforcement by delaying intervention until market power is being actively exercised, and largely ignoring whether and how it is being acquired.

This approach is misguided because it is much easier to promote competition at the point when a market risks becoming less competitive than it is at the point when a market is no longer competitive.

Indeed, enforcers have largely abandoned section 2 monopolization claims, which—by virtue of assessing how a single company amasses and exercises its power—traditionally involved an inquiry into structure. By instead relying primarily on price and output effects as metrics of competition, enforcers risk overlooking the structural weakening of competition until it becomes difficult to address effectively, an approach that undermines consumer welfare.

Indeed, growing evidence shows that the consumer welfare frame has led to higher prices and few efficienciesfailing by its own metrics.

By contrast, allowing a highly concentrated market structure to persist endangers these long-term interests, since firms in uncompetitive markets need not compete to improve old products or tinker to create news ones.

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Even if we accept consumer welfare as the touchstone of antitrust, ensuring a competitive process—by looking, in part, to how a market is structured—ought to be key.

Empirical studies revealing that the consumer welfare frame has resulted in higher prices—failing even by its own terms—support the need for a different approach. Responding to a fear of concentrated power, antitrust sought to distribute it. More relevant than any single goal was this general vision.

If we will not endure a king as a political power, we should not endure a king over the production, transportation, and sale of any of the necessities of life. If we would not submit to an emperor, we should not submit to an autocrat of trade, with power to prevent competition and to fix the price of any commodity.

In other words, what was at stake in keeping markets open—and keeping them free from industrial monarchs—was freedom. This vision encompassed a variety of ends. For one, competition policy would prevent large firms from extracting wealth from producers and consumers in the form of monopoly profits. Notably, this focus on wealth transfers was not solely economic.

Leading up to the passage of the Sherman Act, price levels in the United States were stable or slowly decreasing. Another distinct goal was to preserve open markets, in order to ensure that new businesses and entrepreneurs had a fair shot at entry. Several Congressmen advocated for the Federal Trade Commission Act because it would help promote small business. Through the s, courts and enforcers applied antitrust laws to promote this variety of aims. As described in Part I, Chicago School scholars upended this traditional approach, concluding that the only legitimate goal of antitrust is consumer welfare, best promoted through enhancing economic efficiency.

Notably, some prominent liberals—including John Kenneth Galbraith—ratified this idea, championing centralization. Focusing antitrust exclusively on consumer welfare is a mistake. This vision promotes a variety of aims, including the preservation of open markets, the protection of producers and consumers from monopoly abuse, and the dispersion of political and economic control.

Protecting this range of interests requires an approach to antitrust that focuses on the neutrality of the competitive process and the openness of market structures.

First, as described in Section II. B, this idea contravenes legislative history, which shows that Congress passed antitrust laws to safeguard against excessive concentrations of private power.

Second, by adopting this new goal, the Chicago School shifted the analytical emphasis away from process —the conditions necessary for competition—and toward an outcome —namely, consumer welfare.

Antitrust doctrine has evolved to reflect this redefinition. The recoupment requirement in predatory pricing, for example, reflects the idea that competition is harmed only if the predator can ultimately charge consumers supracompetitive prices. The same is true in the case of vertical integration.

The modern view of integration largely assumes away barriers to entry, an element of structure, presuming that any advantages enjoyed by the integrated firm trace back to efficiencies. More generally, modern doctrine assumes that market power is not inherently harmful and instead may result from and generate efficiencies.

In practice, this presumes that market power is benign unless it leads to higher prices or reduced output—again glossing over questions about the competitive process in favor of narrow calculations. Companies may exploit their market power in a host of competition-distorting ways that do not directly lead to short-term price and output effects. I propose that a better way to understand competition is by focusing on competitive process and market structure.

Instead, I claim that seeking to assess competition without acknowledging the role of structure is misguided. This is because the best guardian of competition is a competitive process, and whether a market is competitive is inextricably linked to—even if not solely determined by—how that market is structured. In other words, an analysis of the competitive process and market structure will offer better insight into the state of competition than do measures of welfare.

Moreover, this approach would better protect the range of interests that Congress sought to promote through preserving competitive markets, as described in Section II. Foundational to these interests is the distribution of ownership and control—inescapably a question of structure. Promoting a competitive process also minimizes the need for regulatory involvement.

A focus on process assigns government the task of creating background conditions, rather than intervening to manufacture or interfere with outcomes. In practice, adopting this approach would involve assessing a range of factors that give insight into the neutrality of the competitive process and the openness of the market. An approach that took these factors seriously would involve an assessment of how a market is structured and whether a single firm had acquired sufficient power to distort competitive outcomes.

What lines of business is a firm involved in and how do these lines of business interact? Does the structure of the market create or reflect dependencies? Has a dominant player emerged as a gatekeeper so as to risk distorting competition? Attention to structural concerns and the competitive process are especially important in the context of online platforms, where price-based measures of competition are inadequate to capture market dynamics, particularly given the role and use of data.

Amazon has established dominance as an online platform thanks to two elements of its business strategy: Recently, Amazon has started reporting consistent profits, largely due to the success of Amazon Web Services, its cloud computing business.

ThroughAmazon had generated a positive net income in just over half of its financial reporting quarters. Even in quarters in which it did enter the black, its margins were razor-thin, despite astounding growth. The graph below captures the general trend. On a regular basis, Amazon would report losses, and its share price would soar. Analysts and reporters have spilled substantial ink seeking to understand the phenomenon.

In some ways, the puzzlement is for naught: In his first letter to shareholders, Bezos wrote:. We believe that a fundamental measure of our success will be the shareholder value we create over the long term. This value will be a direct result of our ability to extend and solidify our current market leadership position.

We first measure ourselves in terms of the metrics most indicative of our market leadership: We have invested and will continue to invest aggressively to expand and leverage our customer base, brand, and infrastructure as we move to establish an enduring franchise.

To achieve scale, the company prioritized growth. And, by many measures, Amazon has succeeded. Its year-on-year revenue growth far outpaces that of other online retailers. As with its other ventures, Amazon lost money on Prime to gain buy-in. As a result, Amazon Prime users are both more likely to buy on its platform and less likely to shop elsewhere. Non-Prime members, meanwhile, are eight times more likely than Prime members to shop between both Amazon and Target in the same session.

It may, however, also reveal the general stickiness of online shopping patterns. But in several key ways, Amazon has achieved its position through deeply cutting prices and investing heavily in growing its operations—both at the expense of profits.

The fact that Amazon has been willing to forego profits for growth undercuts a central premise of contemporary predatory pricing doctrine, which assumes that predation is irrational precisely because firms prioritize profits over growth.

The retailers that compete with it to sell goods may also use its delivery services, for example, and the media companies that compete with it to produce or market content may also use its platform or cloud infrastructure.

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At a basic level this arrangement creates conflicts of interest, given that Amazon is positioned to favor its own products over those of its competitors. Critically, not only has Amazon integrated across select lines of business, but it has also emerged as central infrastructure for the internet economy. Amazon controls key critical infrastructure for the Internet economy—in ways that are difficult for new entrants to replicate or compete against.

This gives the company a key advantage over its rivals: By making itself indispensable to e-commerce, Amazon enjoys receiving business from its rivals, even as it competes with them. Moreover, Amazon gleans information from these competitors as a service provider that it may use to gain a further advantage over them as rivals—enabling it to further entrench its dominant position.

These cases suggest ways in which Amazon may benefit from predatory pricing even if the company does not raise the price of the goods on which it lost money. The other examples, Fulfillment-by-Amazon and Amazon Marketplace, demonstrate how Amazon has become an infrastructure company, both for physical delivery and e-commerce, and how this vertical integration implicates market competition.

These cases highlight how Amazon can use its role as an infrastructure provider to benefit its other lines of business. Amazon entered the e-book market by pricing bestsellers below cost. Additionally, analyzing the issues raised in this case suggests that Amazon could recoup its losses through means not captured by current antitrust analysis. In lateAmazon rolled out the Kindle, its e-reading device, and launched a new e-book library. Inthe DOJ sued the publishers and Apple for colluding to raise e-book prices.

This perspective overlooks how heavy losses on particular lines of e-books bestsellers, for example, or new releases may have thwarted competition, even if the e-books business as a whole was profitable. That the DOJ chose to define the relevant market as e-books—rather than as specific lines, like bestseller e-books—reflects a deeper mistake: Unlike with online shopping, each trip to a brick-and-mortar store is discrete. If, on Monday, Walmart heavily discounts the price of socks and you are looking to buy socks, you might visit, buy socks, and—because you are already there—also buy milk.

On Thursday, the fact that Walmart had discounted socks on Monday does not necessarily exert any tug; you may return to Walmart because you now know that Walmart often has good bargains, but the fact that you purchased socks from Walmart on Monday is not, in itself, a reason to return.

Internet retail is different. On Thursday, you would be inclined to revisit Amazon—and not simply because you know it has good bargains. Several factors extend the tug.

Put differently, loss leading pays higher returns with platform-based e-commerce—and specifically with digital products like e-books—than it does with brick-and-mortar stores. The marginal value of the first sale and early sales in general is much higher for e-books than for print books because there are lock-in effects at play, due both to technical design and the possibilities for and value of personalization.

In this context, the traditional distinction between loss leading and predatory pricing is strained. Sony closed its U. Reader store and is no longer introducing new e-readers to the U. Because the government deflected predatory pricing claims by looking at aggregate profitability, neither the government nor the court reached the question of recoupment. Given that—under current doctrine—whether below-cost pricing is predatory or not turns on whether a firm recoups its losses, we should examine how Amazon could use its dominance to recoup its losses in ways that are more sophisticated than what courts generally consider or are able to assess.

Most obviously, Amazon could earn back the losses it generated on bestseller e-books by raising prices of either particular lines of e-books or e-books as a whole. This intra-product market form of recoupment is what courts look for.

This underscores a basic challenge of conducting recoupment analysis with Amazon: Online commerce enables Amazon to obscure price hikes in at least two ways: By one account, Amazon changes prices more than 2. There is no public evidence that Amazon is currently engaging in personalized pricing, but online retailers generally are devoting significant resources to analyzing how to implement it. If retailers—including Amazon—implement discriminatory pricing on a wide scale, each individual would be subject to his or her own personal price trajectory, eliminating the notion of a single pricing trend.

It is not clear how we would measure price hikes for the purpose of recoupment analysis in that scenario. There would be no obvious conclusions if some consumers faced higher prices while others enjoyed lower ones. But given the magnitude and accuracy of data that Amazon has collected on millions of users, tailored pricing is not simply a hypothetical power. It is true that brick-and-mortar stores also collect data on customer purchasing habits and send personalized coupons.

But the types of consumer behavior that internet firms can access—how long you hover your mouse on a particular item, how many days an item sits in your shopping basket before you purchase it, or the fashion blogs you visit before looking for those same items through a search engine—is uncharted ground.

The degree to which a firm can tailor and personalize an online shopping experience is different in kind from the methods available to a brick-and-mortar store—precisely because the type of behavior that online firms can track is far more detailed and nuanced.

And unlike brick-and-mortar stores—where everyone at least sees a common price even if they go on to receive discounts —internet retail enables firms to entirely personalize consumer experiences, which eliminates any collective baseline from which to gauge price increases or decreases. The decision of whichproduct market in which Amazon may choose to raise prices is also an open question—and one that current predatory pricing doctrine ignores.

Courts generally assume that a firm will recoup by increasing prices on the same goods on which it previously lost money. But recoupment across markets is also available as a strategy, especially for firms as diversified across products and services as Amazon. Although current predatory pricing doctrine focuses only on recoupment through raising prices for consumers, Amazon could also recoup its losses by imposing higher fees on publishers.

For example, when renewing its contract with Hachette last year, Amazon demanded payments for services including the pre-order button, personalized recommendations, and an Amazon employee assigned to the publisher. The fact that Amazon has itself vertically integrated into book publishing—and hence can promote its own content—may give it additional leverage to hike fees. While not captured by current antitrust doctrine, the pressure Amazon puts on publishers merits concern.

Traditionally, publishing houses used a cross-subsidization model whereby they would use their best sellers to subsidize weightier and riskier books requiring greater upfront investment. Under the predatory pricing jurisprudence of the early and mid-twentieth century, harm to the diversity and vibrancy of ideas in the book market may have been a primary basis for government intervention.

For instance, the risk that Amazon may retaliate against books that it disfavors—either to impose greater pressure on publishers or for other political reasons—raises concerns about media freedom.

A market with less choice and diversity for readers amounts to a form of consumer injury. First, Amazon is positioned to recoup its losses by raising prices on less popular or obscure e-books, or by raising prices on print books. In either case, Amazon would be recouping outside the original market where it sustained losses bestseller e-booksso courts are unlikely to look for or consider how much does a golfer make at the masters scenarios.

Additionally, constant fluctuations in prices and the ability to price discriminate enable Amazon to raise prices with little chance of detection.

Lastly, Amazon could recoup its losses by extracting more from publishers, who are dependent on its platform to market both e-books and print books. This forex reserves of india and pakistan diminish the quality ozforex travel card exchange rate breadth of the works that are published, but since this is most directly a supplier -side rather than buyer-side harm, it is less likely that a modern court would consider it closely.

In addition to using below-cost pricing to establish a dominant position in e-books, Amazon has also used this practice to put pressure on and ultimately acquire a chief rival. While theory may predict that entry barriers for online retail are low, this account shows that forex black box review practice significant investment is needed to establish a successful platform that will attract traffic.

Amazon intervened and made an aggressive counteroffer. Amazon achieved this by slashing prices and bleeding money, losses that its investors have given it a free pass to incur—and that a smaller and newer venture like Quidsiby contrast, could not maintain. After completing its buy-up of a key rival—and seemingly losing hundreds of millions of dollars alberta livestock auction market reports the process—Amazon went on to raise prices.

In Novembera year after buying out QuidsiAmazon shut down new memberships in its Amazon Mom program. Does online retailing of baby products resemble shoe retailing or railroading? Given the absence of formal barriers, entry should be easy: However, the economics of online retailing are not 5 1 leverage forex broker like traditional shoe retailing.

Given that attracting traffic and generating sales as an independent online retailer involves steep search costs, the vast majority of online commerce is conducted on platforms, central marketplaces that connect buyers and sellers. As several commentators have observed, the practical barriers to successful and sustained entry as an online platform are very high, given the huge first-mover advantages stemming from data collection and network effects. Investment in online platforms lies bullish options strategies in physical infrastructure that might be repurposed, but in intangibles like brand recognition.

These intangibles can be absorbed by a rival platform or retailer with greater ease than a railroad could take over a competing line. Courts also tend to discount that predators can use psychological intimidation to keep out the competition. Even as Amazon has raised the price of the Amazon Mom program, no newcomers have recently sought to challenge it in this sector, supporting the idea that intimidation may also serve as a practical barrier.

However, even this strategy has skeptics. In this case, Amazon raised prices by cutting back discounts and at least temporarily refusing to expand the program. Even if a firm viewed the unmet demand as an invitation to enter, several factors would prove discouraging in ways that the existing doctrine does not consider.

In theory, online retailing itself has low entry costs since anyone can set up shop online, without significant fixed costs. But in practice, successful entry in online markets is a challenge, requiring significant upfront investment.

It requires either building up strong brand recognition to draw users to an independent site, or using an existing platform, such as Amazon or eBay, which can present other anticompetitive challenges. The fact that no real rival has emerged, even after Amazon raised prices, undercuts the assumption embedded in current antitrust doctrine. Amazon has translated its dominance as an online retailer into significant bargaining power in the delivery sector, using it to secure favorable conditions from third-party delivery companies.

This in turn has enabled Amazon to extend its dominance over other retailers by creating the Fulfillment-by-Amazon service and establishing its own physical delivery capacity.

This illustrates how a company can leverage its dominant platform to successfully integrate into other sectors, creating anticompetitive dynamics. Retail competitors are left with two undesirable choices: What then becomes a virtuous circle for the strong buyer ends up as a vicious circle for its weaker competitors. To this two-fold advantage Amazon added a third perk: InAmazon introduced Fulfillment-by-Amazon FBAa logistics and delivery service for independent sellers.

Amazon had used its dominance in the retail sector to create and boost a new venture in the delivery sector, inserting itself into the business of its competitors.

Amazon has followed up on this initial foray into fulfillment services by creating a logistics empire. Building out physical capacity lets Amazon further reduce its delivery times, raising the bar for entry yet higher. Most recently, Amazon has also expanded into trucking. Last December, it announced it plans to roll out thousands of branded semi-trucks, a move that will give it yet more control over delivery, as it seeks to speed up how quickly it can transport goods to customers.

The way that Amazon has leveraged its dominance as an online retailer historical exchange rate turkish lira euro vertically integrate into delivery is instructive on several fronts.

First, it is a textbook example of how the company can use its dominance in one sphere to advantage a separate line of business.

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To be sure, this dynamic is not intrinsically anticompetitive. Because Amazon was able to demand heavy discounts from FedEx and Decatur tx livestock market report, other sellers faced price hikes from these companies—which positioned Amazon to capture them as clients for its new business.

By overlooking structural factors like bargaining power, modern antitrust doctrine fails to address this type of threat to competitive markets.

Second, Amazon is positioned to use its dominance across online retail and delivery in ways that involve tying, are exclusionary, and create entry barriers.

For example, sellers who use FBA have a better chance of being listed higher in Amazon search results than those who do not, which means Amazon is tying the outcomes it generates for sellers using its retail platform to whether they also use its delivery business. In interviews with reporters, venture capitalists say there is no appetite to fund firms looking to compete with Amazon on physical delivery.

The fact that Amazon competes with many of the businesses that are coming to depend on it creates a host of conflicts of interest that the company can exploit to privilege its own products. Amazon has already raised Prime prices.

As described above, vertical integration buy stop sell stop forex retail and physical delivery may enable Amazon to leverage cross-sector advantages in ways that are potentially anticompetitive but not understood as such under current antitrust doctrine.

The clearest example of how the company leverages its power across online businesses is Amazon Marketplace, where third-party retailers sell their wares.

Since Amazon commands a large share of e-commerce traffic, many smaller merchants find it necessary to use its site to draw buyers. Third-party sellers using Marketplace recognize that using the platform puts them in a bind. By going directly to the manufacturer, Amazon seeks to cut out the independent sellers.

In other instances, Amazon has responded to popular third-party products by producing them itself. Last year, a manufacturer that had been selling an aluminum laptop stand on Marketplace for more than a decade saw a similar stand appear at half the price. The manufacturer learned that the brand was AmazonBasicsthe private line that Amazon has been developing since The difference with Amazon is the scale and sophistication of the data it collects.

Whereas brick-and-mortar stores are generally only able to collect information on actual sales, Amazon tracks what shoppers are searching for but cannot find, as well as which products they repeatedly return to, what they keep in their shopping basket, and what their mouse hovers over on the screen. In using its Marketplace this way, Amazon increases sales while stock broker recruiting risk.

It is third-party sellers who bear the initial costs and uncertainties when introducing new products; by merely spotting them, Amazon gets to sell products only once their success has been tested. The anticompetitive implications here seem clear: Amazon is exploiting the fact that some of its customers are also its rivals.

The source of this power is: Notably, it is this last factor—its control over data—that heightens the anticompetitive potential of the first two.

Evidence suggests that Amazon is keenly aware of how does a stock broker use math interested in exploiting these opportunities.

For example, the company has reportedly used insights gleaned from its cloud computing service to inform its investment decisions. How Amazon has cross-leveraged its advantages across distinct lines of business suggests that the law fails to appreciate when vertical integration may prove anticompetitive. This shortcoming is underscored with online platforms, which both serve as infrastructure for other companies and collect swaths of data that they can then use to build up other lines of business.

In this way, the current antitrust regime has yet to reckon with the fact that firms with concentrated control over data can systematically tilt a market in their favor, dramatically reshaping the sector.

But it also reflects a failure to update antitrust for the internet age. How to get neocash fast Part examines how online platforms defy and complicate assumptions embedded in current doctrine.

Specifically, kpmg stock market considers how the economics and business dynamics of online platforms create incentives for companies to pursue growth at the expense of profits, and how online markets and control over data may enable new forms of anticompetitive activity. Economists have analyzed extensively how platform markets may pose unique challenges for antitrust analysis. Legalanalysis of online platforms is comparatively undertheorized.

Starting inthe FTC pursued an investigation into Google, partly in response to allegations that the company uses its dominance as a search engine to cement its advantage and exclude rivals in other lines of business. While the FTC closed the investigation without bringing any charges, leaks later revealed that FTC staff had concluded that Google abused its power on three separate counts.

For the purpose of competition policy, one of the most relevant factors of online platform markets is that they are winner-take-all. This is due largely to network effects and control over data, both of which mean that early advantages become self-reinforcing. Scalping forex ma result is that technology platform markets will yield to dominance by a small number of firms.

Since popularity compounds and is reinforcing, markets with network effects often tip towards oligopoly or monopoly. Involvement across markets, meanwhile, may permit a company to use data gleaned from one market to benefit another business line.

D, is an example of this dynamic. Control over data may also make it easier for dominant platforms to enter new markets with greater ease. Given that online platforms operate in markets where network effects and control over data solidify early dominance, a company looking to compete in these markets must forex millionaires to capture them.

Recognizing that enduring early losses while aggressively expanding can lock up a monopoly, investors seem willing to back this strategy. As the Introduction and Part III describe, Amazon has charted immense growth while investing aggressively—both by expanding provision of physical and online infrastructure and by pricing goods below cost. In essence, investors have given Amazon a free pass to grow without any pressure to show profits.

The firm has used this edge to expand wildly and dominate online commerce. The idea that investors are willing to fund new england firearms wood stocks growth greentown market stock winner-take-all markets also holds in the case of Uber.

One might dismiss this phenomenon as irrational investor exuberance. But another way to read it is at face value: Yet bringing a predatory pricing suit against an online platform would be almost impossible to win in light of the recoupment requirement.

Strikingly, the market is reflecting a reality that our current laws are unable to detect. In addition to overlooking why online platform dynamics make predation especially rational, current doctrine also fails to appreciate how a platform might recoup losses. For one, investor support allows Amazon to strategize and operate on a time horizon far longer than what the Brooke Group or Matsushita Courts confronted. Raising prices in a third year after enduring losses for two is different from engaging in a decade-long quest to become the dominant online retailer and provider of internet infrastructure.

That longer timeline, meanwhile, makes available more recoupment mechanisms. Not only has Amazon inaugurated an entire generation into forex tr investing shopping through its platform, but it has expanded into a suite of additional businesses and amassed significant troves of data on users.

This data enables it both to extend its tug over customers through highly tailored personal shopping experiences, and, potentially, to institute forms of price discrimination, as described in Section IV.

Both the latitude granted by investors and control over data equip an incumbent platform to recoup losses in ways less obviously connected to the initial form of below-cost pricing. These recoupment mechanisms may also be more sophisticated than what a judge or even rivals would be able to spot. This last point becomes even more apparent in the context of Uberwhose dynamic pricing has conditioned users not to expect a stable or regular price. While Uber claims that its algorithms set prices to reflect real-time supply and demand, initial research has found that the company manipulates the availability of both.

Although platforms form the backbone of the worst stockmarket crashes economy, the way that platform economics implicates existing laws is relatively undertheorized.

But because current predatory craigslist pets for sale stockton ca doctrine defines recoupment in overly narrow terms, competitors generally have not been able to make an effective 777 free signals for binary options stock case.

Similarly, because current doctrine largely discounts entry barriers, the anticompetitive effects of vertical integration are difficult to cognize under the existing framework. There are signs that enforcers are becoming more attuned to the special factors that may render current antitrust analysis inadequate to promote competition in internet platform markets. For example, in the United States successfully challenged a merger between two leading providers of online ratings and reviews platforms.

In its complaint, DOJ acknowledged that data-driven industries can be characterized by network effects, which increase switching costs and entry barriers. While this burgeoning recognition is heartening, the unique features of platform markets require a more thorough evaluation of how antitrust is applied. An approach more attuned to the realities of online platform markets would also recognize the variety of mechanisms that businesses may use to recoup losses, the longer time horizon on which recoupment might occur, and the ways that vertical integration and concentrated control over data may enable new forms of anticompetitive conduct.

Revising antitrust to reflect the dynamics of online platforms is vital, especially as these companies come to mediate a growing share of communications and commerce.

If it is true that the economics of platform markets may encourage anticompetitive market structures, there are at least two approaches we can take.

Key is deciding whether we want to govern online platform markets through competition, or want to accept that they are inherently monopolistic or oligopolistic and regulate them instead. If we take the former approach, we should reform antitrust how to make money on farming simulator 15 xbox one to prevent this dominance from emerging or to limit its scope.

Reforming antitrust to address the anticompetitive nature of platform markets could involve making the law against predatory pricing more robust and strictly policing forms of vertical integration that firms can use for anticompetitive ends. Importantly, each of these doctrinal areas should be reformulated so that it is sensitive to preserving the competitive process and limiting conflicts of interest that may incentivize anticompetitive conduct.

While predatory pricing technically remains illegal, it is extremely difficult to win predatory pricing claims because courts now require proof that the alleged predator would be able to raise prices and recoup its losses. And given that platforms are uniquely positioned to fund predation, a competition-based approach might also consider introducing a presumption of predation for dominant platforms found to be pricing products craigslist pets for sale stockton ca cost.

Several reasons militate in favor of a presumption of predation in such cases. First, firms may raise prices years after the original predation, or raise prices on unrelated goods, in ways difficult to prove at trial. Second, firms may raise prices through personalized pricing or price discrimination, in ways not easily detectable.

Third, predation can lead to a host of market harms even if the firm does not raise consumer prices. Within a consumer welfare framework, these harms include degradation of product quality and sapping diversity of choice. Within a broader framework—which seeks to protect the full range of interests that antitrust laws were enacted to safeguard—the potential harms include lower income and wages for employees, lower rates of new business creation, lower rates of local ownership, and outsized political and economic control in the hands of a few.

Introducing a presumption of predation would involve identifying when a price is below cost, a subject of much debate. The Supreme Court has not addressed the issue, but most appellate courts have said that average variable cost is the right metric. Whether a platform is dominant enough to trigger the presumption could be assessed through its market share: The current approach to antitrust does not sufficiently account for how vertical integration may give rise to anticompetitive conflicts of interest, nor does it adequately address the way a dominant firm may use its dominance in one sector to advance another line of business.

This concern is heightened in the context of vertically integrated platforms, which can use insights generated through data acquired in one sector to undermine rivals in another. Potential ways to address this deficiency include scrutinizing mergers that would enable a firm to acquire valuable data and cross-leverage it, or introducing a prophylactic ban on mergers that would give rise to conflicts of interest.

Thus, it could make sense for the agencies to automatically review any deal that involves exchange of certain forms or a certain quantity of data. International transactions granting foreign corporations access to data on U. A stricter approach would place prophylactic limits on vertical integration by platforms that have reached a certain level of dominance.

Adopting this prophylactic approach would mean banning a dominant firm from entering any market that it already serves as a platform—in other words, from competing directly with the businesses that depend on it.

These two businesses would have to be separated into different entities, in part to prevent Amazon from using insights from its role as a south african forex trading companies host to benefit its retail business, as it reportedly does now. This form of prophylactic ban has a long history in banking law. The policy goals of this regime are worth reviewing because they have analogues in antitrust and competition policy.

Like bank holding companies, Amazon—along with a few other dominant platforms—now play a crucial role in intermediating swaths of economic activity. Amazon itself effectively controls the infrastructure of the internet economy. This level of concentrated control creates hazards analogous to those recognized in banking law.

As in banking, enabling an essential intermediating entity to compete with the companies that depend on it creates bad incentives. Allowing a vertically integrated dominant platform to pick and choose to whom it makes its services available, and on what terms, has the potential to distort fair competition and the economy as a whole.

The other two concerns—safety and soundness, and excessive economic and political power—are also worth considering. It is true that Amazon and other dominant platforms like Uber and Google have extended directly into financial services.

Rather, the systemic risks created by concentration among platforms are of a different kind. One involves concentration of data. That a huge share of consumer retail data may be concentrated within a single company makes hacks of or technical failures by that company all the more disruptive. A few instances where Amazon Web Services crashed led to disruptions for scores of other businesses, including Netflix.

Lastly, there is sound reason to ask whether permitting Amazon to leverage its platform to integrate across business lines hands it undue economic and political power. As described above, one option is to govern dominant platforms through promoting competition, thereby limiting the power that any one actor accrues. The other is to accept dominant online platforms as natural monopolies or oligopolies, seeking to regulate their power instead.

In this Section, I sketch out two models for this second approach, traditionally undertaken in the form of public utility regulations and common carrier duties. Industries that historically have been regulated as utilities include commodities water, electric power, gastransportation railroads, ferriesand communications telegraphy, telephones. Although largely out of fashion today, public utility regulations were widely adopted in the early s, as a way of regulating the technologies of the industrial age.

Animating public utility regulations was the idea that essential network industries—such as railroads and electric power—should be made available to the public stock options negotiate salary the form of universal service provided at just and reasonable rates. The Progressive movement of the early twentieth century embraced public utility as a way to use government to steer private enterprise toward public ends.

It was precisely because essential network industries often required scale that unregulated private control over these sectors often led to abuse of monopoly power. Famously, the Interstate Commerce Commission—which instituted a form housing market in woodstock ontario common carriage for railroads—was created partly in response to the abusive conduct of railroads, whose control over an essential facility enabled them to pick nyse liffe stock options and losers among farmers.

In the United Ar 15 a2 stocks, the first case applying public utility regulations commodity brokerage futures brokers reviews a private business was Munn v. Illinoisin which the Supreme Court upheld state legislation establishing maximum rates that companies could charge for the storage and transportation of grain.

Given that Amazon increasingly serves as essential infrastructure across the internet economy, applying elements of public utility regulations to its business is worth considering. Of these three traditional policies, nondiscrimination would make the most sense, while rate-setting and investment requirements would be trickier to implement and, perhaps, would less obviously address an outstanding deficiency. A nondiscrimination policy that prohibited Amazon from privileging its own goods and from discriminating among producers and consumers would be significant.

This approach would permit the company to maintain its involvement across multiple lines of business and permit it to enjoy the benefits of scale while mitigating the concern that Amazon could unfairly advantage its own business or unfairly discriminate among platform users to gain leverage or market power.

Rate setting would be trickier. This would involve setting a ceiling on the prices that Amazon can charge to both producers and consumers. Lastly, it is not clear that imposing capitalization and investment requirements would be necessary. A traditional reason for these policies has been that that the economics of creating and running a utility can be unfavorable, occasionally leading private companies to scrimp on investing and upkeep.

That said, a public utility regime could also be justified on the basis that succeeding as an online platform requires incurring heavy losses—a model that Amazon and Uber have pursued. This approach would how to work on binary options reviews market-share chasing losses as a capital investment, suggesting the public utility domain may be appropriate.

Practically, ushering in a public utility regime may prove challenging. Public utility regulations suffered an intellectual and policy attack around mid-century.

For one, critics challenged the theory of natural monopoly as an ongoing rationale for regulation, arguing that rapid economic and technological change would render monopolies temporary problems. Second, critics portrayed public utility as a form of corruption, a system in which private industry executives colluded with public officials to enable rent seeking. Ultimately these lines of criticism substantially thinned the very concept of public utility.

Although the concept of public utility regulation remains somewhat maligned today, there are signs that a robust movement to apply utility-like regulations to services that widely register as public—such as the internet—can catch wind. The core of the net neutrality debates, for example, involved foundational espa stock global-emerging markets t c about how to regulate the communication infrastructure of the twenty-first century.

Another would require forex cambio lomas de zamora horarios up parts of Amazon and applying nondiscrimination principles separately; so, for example, to Amazon Marketplace and Amazon Web Services as distinct entities.

That said, given the political challenges of ushering in such a regime, strengthening and reinforcing traditional antitrust principles may—in the short run—prove most feasible.

A lighter version of the regulatory approach would be to apply the essential facilities doctrine. This doctrine imposes sharing requirements on a natural monopoly asset that serves as a necessary input in another market. As Sandeep Vaheesan explains:.

This doctrine rests on two basic premises: Unlike the prophylactic ban on integration, the essential facilities route accepts list of stock brokers in indore ownership. But recognizing that a vertically integrated monopolist may deny access to a rival in an adjacent market, the doctrine requires the monopolist controlling the essential facility to grant competitors easy access.

This duty has traditionally been enforced through regulatory oversight. While the essential forex pro real time technical analysis doctrine has not been precisely defined, the four-factor test enumerated by the Seventh Circuit in MCI Communications Corp. This decision by the Court to effectively reject its prior case law on essential facilities followed challenges on other fronts: Essential facilities doctrine has traditionally been applied to infrastructure such as bridges, highways, ports, electrical power grids, and telephone networks.

While the essential facilities doctrine has not yet been applied to the internet economy, some proposals have started exploring what this might look like. Yet evidence shows that competition in platform markets is flagging, with sectors coalescing around one or two giants. As a result, the company has positioned itself at the center of Internet commerce and serves as essential infrastructure for a host of other businesses that now depend on it.

In particular, current law underappreciates the risk of predatory pricing and how integration across distinct business lines may prove anticompetitive. First, the economics of platform markets incentivize the pursuit of 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. In order to capture these anticompetitive concerns, we spot currency rates definition replace the consumer welfare framework with an approach oriented around pssap investment options a competitive process and forex scalping with macd structure.

More specifically, restoring traditional antitrust principles to create a presumption of predation and to ban vertical integration by dominant platforms could help maintain competition in these markets.

If, instead, we accept dominant online platforms as natural monopolies or oligopolies, then applying elements of a public utility regime or essential facilities obligations would maintain the benefits of scale while limiting the ability of dominant platforms to abuse the power that comes with it. My argument is part of a larger recent debate about whether the current paradigm in antitrust has failed. Though relegated to technocrats for decades, antitrust and competition policy have once again become topics of public concern.

America needs a dose of competition. Democrats included competition policy in their party platform for the first time sinceand in October of the same year, presidential candidate Hillary Clinton released a pattern 123 forex antitrust platform, highlighting not only a need for more vigorous enforcement but for an enforcement philosophy that takes into account market structure.

Animating these critiques is not a concern about harms to consumer welfare, but the broader set of ills and hazards that a lack of competition supra shoes stock market. As Amazon continues both to deepen its existing control over key infrastructure and to reach into new lines of business, its dominance demands the same scrutiny.

To revise antitrust law and competition policy for platform markets, we should be guided by two questions. First, does our legal framework capture the realities of how dominant firms acquire and exercise power in the internet economy? And second, what forms and degrees of power should the law identify as a threat to competition?

Without considering these questions, we risk permitting the growth of powers that we oppose but fail to recognize. David StreitfeldAs Competition Wanes, Amazon Cuts Back DiscountsN. Times July 4,http: Ida Tarbell, John D. Amazon Posts a ProfitCNN Money Jan. Partly due to the success of Amazon Web Services, Amazon has recently begun reporting consistent profits. Though this trend departs from the history on which I focus, my analysis stands given that I am interested in 1 the losses Amazon formerly undertook to establish dominant positions in certain sectors, 2 the investor backing and enthusiasm that Amazon consistently maintained despite these losses, and 3 whether these facts challenge the assumption—embedded in current doctrine—that losing money is only desirable and hence rational if followed by recoupment.

Investors have granted the company much wider leeway to do so than other kmx stock options companies of its size often receive, because of its history of delivering outsize growth. Matt KrantzAmazon Breaks Barrier: Now Most Costly StockUSA T oday Nov. Bezos enormous leeway to spend billions building out a distribution-center infrastructure, but it remained a semi-open question if the bdo stock options and pace of investments would ever pay off.

Could this company ever make a whole lot of money selling so much for so little? Amazon Tops the ListForbes Mar. David StreitfeldA New Book Portrays Amazon as BullyN. David Streitfeldsupra note See Oversight of the Enforcement of the Antitrust Laws: Hearing Before the Subcomm. Vauhini VaraIs Amazon Creating a Cultural Monopoly? See United States v.

Restrictions on price and output are the paradigmatic examples of restraints of trade that the Sherman Act was intended to prohibit. Bain, Industrial Organization 2d ed. An Economic and Legal Analysis ; Joe S.

Bain, Workable Competition in Oligopoly: Theoretical Considerations and Some Empirical Evidence40 Am. The institutionalists —scholars who emphasized the importance of social rules and organizations in producing economic outcomes—were also influential in this vein.

Commons, Legal Foundations of Capitalism United States, U. But it is worth noting that a new group of scholars at the University of Chicago—such as Luigi Zingales and Guy Rolnik —have departed from the neoclassical approach and are studying market competition with an eye to power. See generally ProMarkethttp: Posner, The Chicago School of Antitrust AnalysisU.

Marc Allen Eisner, Antitrust and the Triumph of Economics: Institutions, Expertise, and Policy Change Bork, The Antitrust Paradox: A Policy at War with Itself Eisnersupra note 31, at Stigler, The Organization of Industry 67 In judging consumer welfare, productive efficiency, the single most important factor contributing to that welfare, must be given due weight along with allocative efficiency.

Crane, The Tempting of Antitrust: Robert Bork and the Goals of Antitrust Policy79 Antitrust L. As has been widely noted, Bork defines consumer welfare not as consumer surplus but as total welfare. As a result, for Bork, outcomes that might otherwise be understood to harm consumers are not thought to reduce consumer welfare.

For example, Bork concludes that wealth transfers from consumers to monopolist producers would not harm consumer welfare. This is not dead-weight loss due to restriction of output but merely a shift in income between two classes of consumers. The consumer welfare model, which views consumers as a collectivity, does not take this income effect into account.

Fox, The Modernization of Antitrust: A New Equilibrium66 Cornell L. LandeA Traditional and Textualist Analysis of the Goals of Antitrust: Efficiency, Preventing Theft from Consumers, and Consumer Choice81 Fordham L. LandeWealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged34 Hastings L.

See Barak OrbachForeword: Horizontal Merger GuidelinesU. Edith Ramirez, Chairwoman, FTC, Keynote Remarks at 10th Annual Global Antitrust Enforcement Symposium Sept.

GrunesBig Data and Competition Policy Leslie, Revisiting the Revisionist History of Standard Oil85 S. See Ida TarbellA History of the Standard Oil Company Monopoly price refers to the price profitably above cost that a firm with monopoly power can charge. United States, 22 U.

Leslie, supra note 50, at quoting United States v. HovenkampUnited States Competition Policy in Crisis: Lawrence Shepard, The Economic Effects of Repealing Fair Trade Laws12 J. This basis for distinguishing legitimate from illegitimate price-cutting echoed other decisions.

The Robinson- Patman Act was passed to deprive a large buyer of such advantages. Bowman, Restraint of Trade by the Supreme Court: The Utah Pie Case77 Yale L.

Borksupra note 32, at TurnerAntitrust Law: An Analysis of Antitrust Principles and Their Application ; Herbert HovenkampEconomics and Federal Antitrust Law ; Richard A. PosnerAntitrust Law: An Economic Perspective Baker, Predatory Pricing After Brooke Group: An Economic Perspective62 Antitrust L. The narrow spectrum of views between a white tiger and a unicorn fairly reflects the Chicago School view that predatory pricing is almost always irrational, and so is unlikely actually to occur.

See Borksupra note 32, at Daniel SokolThe Transformation of Vertical Restraints: Per Se Illegality, the Rule of Reason, and Per Se Legality79 Antitrust L. The government argued in the case as amicus curiae in support of Matsushita.

Brief for the United States as Amicus Curiae Supporting Petitioners, Matsushita Elec. MatsushitaU. Leslie, Predatory Pricing and RecoupmentColum.

Rose Acre Farms, Inc. Without it, predatory pricing produces lower aggregate prices in the market, and consumer welfare is enhanced. Scherer, Conservative Economics and Antitrust: A Variety of Influencesin How the Chicago School Overshot the Mark 30, 33 Robert Pitofsky ed.

The only recent case in which plaintiffs survived a motion for summary judgment is Spirit Airlines, Inc. Sandeep VaheesanReconsidering Brooke Group: Predatory Pricing in Light of the Empirical Learning12 Berkeley Bus.

Mumford, Does Predatory Pricing Exist? Economic Theory and the Courts After Brooke Group, 41 Antitrust Bull. Cole, General Discussion of Vertical Integrationin Vertical Integration in Marketing 9, 9 Nugent Wedding ed.

Federal Trade Commission Act, ch. See Herbert HovenkampRobert Bork and Vertical Integration: Leverage, Foreclosure, and Efficiency79 Antitrust L. Stern, Competition, Contract, and Vertical Integration69 Yale L. But see United States v. In an influential essay that presaged his later arguments in The Antitrust ParadoxBork defended vertical integration as nearly always procompetitive. Robert Bork, Vertical Integration and the Sherman Act: The Legal History of an Economic Misconception22 U.

The product and its distribution are complements, and an increase in the price of distribution will reduce the demand for the product.

Assuming that the product and its distribution are sold in fixed proportions. But in an article later commissioned by Google, Bork returned to a critique of leverage theory, deriding the idea that Google could leverage its position in the general search market to gain additional profits in downstream markets. Gregory SidakWhat Does the Chicago School Teach About Internet Search and the Antitrust Treatment of Google8 J. KovacicBuilt To Last? The Antitrust Legacy of the Reagan Administration35 Fed.

DailyJune 17,at A For example, Democrat-appointed antitrust leaders have also adopted the Chicago School view that most vertical mergers are benign. Stewart, Why a Media Merger that Should Go Through Might NotN. By imposing conduct remedies, the antitrust agencies set out behavioral conditions that the merging parties must comply with, subject to agency oversight.

By requiring divestitures, the antitrust agencies ask the merging parties to sell off a part of their business to another entity. Bosworth, Consumer Groups Oppose Comcast-NBC MergerConsumer Aff. As Bork pointed out, the vertical deals would not increase the market share of either company. Press Release, Office of Pub. To Make Significant Changes to Its Merger with Live Nation Inc. TermsReuters Jan. See Hovenkampsupra note 57, at Crane, Has the Obama Justice Department Reinvigorated Antitrust Enforcement?

Online July 18,http: Over the eight years of the Bush Administration, the Justice Department filed no monopolization cases. To date, the Obama Administration has filed only one case, hardly evidencing a major shift in tactics. A growing body of work shows that the consumer welfare frame has failed even on its own terms—namely, by leading to higher prices without any clear efficiency gains.

See John KwokaMergers, Merger Control, and Remedies: A Retrospective Analysis of U. Policy ; Benefits of Competition and Indicators of Market PowerCouncil Econ. A Partial ExplanationBrookings Inst. Heaps of scholarship delve into this legislative history. Eleanor Fox, Against Goals81 Fordham L. Robert PitofskyThe Political Content of AntitrustU. LandeWealth Transferssupra note 38, at A third and overriding political concern is that if the free-market sector of the economy is allowed to develop under antitrust rules that are blind to all but economic concerns, the likely result will be an economy so dominated by a few corporate giants that it will be impossible for the state not to play a more intrusive role in economic affairs.

Brandeis, The Curse of Bigness 38 Osmond K. In Economics and the Public PurposeGalbraith concluded that centralized planning, rather than open markets, was the best way to stabilize industries and boost prosperity. John Kenneth Galbraith, Economics and the Public Purpose 55 See Lina Khan, New Tools To Promote Competition, Democracy Fallhttp: I am by no means alone in arguing this.

The New Monopoly Capitalism and the Economics of Destruction ; Fox, supra note 38, at ; Maurice E. StuckeBetter Competition Advocacy82 St. Distrust of power is the one central and common ground that over time has unified support for antitrust statutes. Interests of consumers have been a recurrent concern because consumers have been perceived as victims of the abuse of too much power.

Interests of entrepreneurs and small business have been a recurrent concern because independent entrepreneurs have been seen as the heart and lifeblood of American free enterprise, and freedom of economic activity and opportunity has been thought central to the preservation of the American free enterprise system.

One overarching idea has unified these three concerns distrust of power, concern for consumers, and commitment to opportunity of entrepreneurs: The competition process is the preferred governor of markets. If the impersonal forces of competition, rather than public or private power, determine market behavior and outcomes, power is by definition dispersed, opportunities and incentives for firms without market power are increased, and the results are acceptable and fair.

The Wall Street Takeover and the Next Financial Meltdown ; and Lynnsupra note The Justice Department recently cited the importance of media diversity when suing to block a merger between two newspapers. See Michaela Ross, Even for Ailing Newspapers, U. Says a Monopoly Is a MonopolyBloomberg Mar.

For why competition policy is important for promoting media diversity, see Maurice E.

GrunesToward a Better Competition Policy for the Media: The Effect of Conservative Economic Analysis on U. Antitrust supra note Antitrustin How the Chicago School Overshot the Mark: Antitrust supra noteat Indeed, often market power as well as high concentration result from efficiency.

One line of argument holds that the concentration of private control—and the power it hands to a few over our economy—is itself problematic, and if and how those wielding this power choose to exercise it is beside the point. That power can be utilized with lightning speed. It can be benign or it can be dangerous. The philosophy of the Sherman Act is that it should not exist. I am not the first to argue that preserving a competitive process is vital to promoting competition.

Instead, my contribution here is in 1 identifying how a consumer welfare-based approach is failing to detect and deter anticompetitive harms in the context of internet platforms, thereby 2 highlighting the need for a process-based approach as applied to internet platforms, and 3 detailing that this process-based approach would pay particular attention to entry barriers, conflicts of interest, the emergence of gatekeepers and bottlenecks, the use of and control over data, and dynamics of bargaining power.

This is one line of argument President Franklin Roosevelt offered in favor of robust antitrust. Roosevelt, Message to Congress on Curbing MonopoliesAm. This is the definition offered by Milton Friedman, a figure popular with the neoclassical school.

The Chicago School accepts this definition with regard to price and output, but ignores other metrics of control. See Greg BensingerCloud Unit Pushes Amazon To Record ProfitWall St. Stockholders have pushed Amazon shares up to a record level, even though the company makes only pocket change.

Profits were always promised tomorrow. David StreitfeldAmazon Reports Unexpected Profit, and Stock SoarsN. Times July 23,http: Matthew YglesiasAmazon Profits Fall 45 Percent, Still the Most Amazing Company in the WorldSlate: Bezos, Letter to ShareholdersAmazon.

Online Sales Growth inMarketWatchMay 3,3: Amazon and the New Age of DeliveryBI Intelligence June 5,http: See Phil WahbaThis Chart Shows Just How Dominant Amazon IsFortune Nov. A review of a new price comparison tool stated: Dawn Kawamoto, Amazon Unveils Flat-Fee ShippingCNET Feb. Instant GratificationBloomberg Businessweek Nov. AnalystCNBC Sept. Devin Leonard, Will Amazon Kill FedEx? Brad Tuttle, Amazon Prime: Bigger, More Powerful, More Profitable than Anyone ImaginedTime Mar.

Dan FrommerHalf of US Households Could Have Amazon Prime byQuartz Feb. Consumers at High CostReuters Jan. See Elizabeth Weise, Amazon Prime Is Big, but How Big? Brad Tuttle, How Amazon Prime Is Crushing the CompetitionTime Jan. Chad Rubin, The Evolution of Amazon Prime and Their Followed SuccessSkubana Mar.

Ben Fox Rubin, As Amazon Marks 20 Years, Prime Grows to 44 Million Members in USCNET July 15,4: See Brad Tuttle, How Amazon Gets You To Stop Shopping Anywhere ElseTime Dec. Instead, the Prime membership program gets consumers in the regular habit of at least checking with Amazon before making any online purchase.

Lance Whitney, Amazon Prime Members Will Renew Despite Price Hike, Survey FindsCNET July 23,http: In particular, behavioral tendencies related to habit and information costs may disrupt conventional economic assumptions.

As ofAmazon had acquired or invested in over seventy companies. Walker, Forrester, Why Amazon Matters Now More than Ever 5 Tech Trader Daily June 16, The company is the fifth-most valuable in the world: Shelly Banjo, Amazon Eats the Department StoreBloomberg: Its clothing sales are greater than the combined online sales of its five largest online apparel competitors: I am not using it in this way.

See supra note See Caroline McCarthy, Amazon Debuts Kindle E-Book ReaderCNET Nov. See Brad Stone, The Everything Store ; George Packer, Cheap WordsNew Yorker Feb.

This is the point at which it clearly sold e-books below cost. Trachtenberg, E-Book Sales Fall After New Amazon ContractsWall St. See Eric SavitzAmazon Selling Kindle Fire Below Cost, Analyst ContendsForbes Sept. AppleF. Macmillan E-BooksAmazon Jan. Response of Plaintiff United States to Public Comments on the Proposed Final Judgment at 21, AppleF. Traditionally, a retailer loss-leads when it prices one good below cost in order to sell more of another good, assuming that discounts on one good will attract and retain consumers.

Walmart choosing to price t-shirts below cost to sell more shorts would be an example of loss leading. Kirkwood, Collusion To Control a Powerful Customer: Amazon, E-Books, and Antitrust Policy69 U. See Cory Doctorow, Why the Death of DRM Would Be Good News for Readers, Writers and PublishersGuardian May 3, See Ana Carolina BittarUnlocking the Gates of Alexandria: DRM, Competition and Access to E-Books 1 July 25, unpublished manuscripthttp: This lack of interoperability can increase barriers to entryswitching costs, and network effects.

Consequently, consumers are often locked into an e-book ecosystem, which permits booksellers to act as gatekeepers of the e-book market. See Alexandra Alter, Your E-Book Is Reading YouWall St. July 19,3: Book apps for tablets like the iPad, Kindle Fire and Nook record how many times readers open the app and how much time they spend reading. Retailers and some publishers are beginning to sift through the data, gaining unprecedented insight into how people engage with books.

Response of Plaintiff United States to Public Comments on the Proposed Final Judgment, supra noteat A Look at the Rest of the Ebook MarketAuthor Earnings Oct. Statistics and Facts About AmazonStatistahttp: Sony Gives Up on Selling E-ReadersBBC Aug. Nor is the decline of Amazon competitors unique to e-books. Several journalists have tracked instances of price discrimination in e-commerce. Asians Are Nearly Twice as Likely To Get a Higher Price from Princeton ReviewProPublica Sept. FerdmanAmazon Changes Its Prices More than 2.

But recent reporting does suggest that Amazon manipulates how it presents pricing in order to favor its own products. See Lina Khan, Why You Might Pay More than Your Neighbor for the Same Bottle of Salad DressingQuartz Jan. In other words, we could all end up paying significantly different amounts for the same items, even if we see the same prices while browsing. As a group of authors stated in a recent letter to the Justice Department:.

Letter from Authors United to William J. Times July 13,http: See supra Section I. For accounts of how some retailers have successfully implemented discriminatory pricing online, see supra note and accompanying text.

The courts have not dealt adequately with this problem. Trujillo, Note, Predatory Pricing Standards Under Recent Supreme Court Decisions and Their Failure To Recognize Strategic Behavior as a Barrier to Entry19 J.

See Leslie, supra note 94, at See Randy Kennedy, Cash Up FrontN. Times June 5,http: Times June 20,http: Acquisition and maintenance of monopsony power are still recognized harms under the Sherman and Clayton Acts, even though few cases are brought today.

Complaint atUnited States v. Times July 9,http: Publishers have also merged divisions internally. Penguin Merges Two Mass Market Publishing Houses To Create New Mass Market Publishing HouseMelville House June 26,http: Cross-subsidization schemes can have widely different effects, depending on how the two submarkets are or are not interrelated. Amazon prices below cost in order to generate higher sales in another line of business; its losses in one market actively boost another market.

By contrast, the cross-subsidization model used by publishers has no analogous crossover effects. A publisher might decide to publish an obscure book, even if it knows it will lose money, and subsidize those losses through profits made on a more popular book. The market effects across its different segments are significant in ways that do not hold for brick-and-mortar stores or other non-platform entities.

Baer, supra note That saidthe DOJ did consider how rising consolidation in the media sector—specifically in the context of a proposed merger between two newspapers—would risk undermining the spread of ideas. Times Publisher from Acquiring Competing Newspapers Mar. See Packer, supra note How Amazon Became the Everything StoreBloomberg Oct.

Stonesupra noteat Jason Del Ray, How Jeff Bezos Crushed Diapers. Will OremusThe Time Jeff Bezos Went Thermonuclear on Diapers. The FTC reviewed the deal under Section 7 of the Clayton Act, the provision that governs mergers, as well as section 5 of the Federal Trade Commission Act, which targets general unfair practices. See Letter from Donald S. The deal raised a host of red flags, such as the elimination of a major player in a competitive category, according to an FTC official familiar with the review.

See Stonesupra noteat Thad RueterAmazon Tweaks Its Diaper Program, Moms Vent and a Competitor PouncesInternet Retailer Feb. Laura Owen, Amazon Cuts the Benefits Again in Amazon Mom, Its Prime Program for ParentsGigaom Sept.

I would think that their shipping policies might change soon as well. Target, Walmart, Amazon Dominate the Online Baby Goods MarketBus. See generally Tim Wu, The Master Switch: The Rise and Fall of Information Empires arguing that all American information industries since the telephone have resulted in monopolies ; Candeubsupra note suggesting that network effects may produce anticompetitive results in the online market because of the cognitive effort necessary to switch search engines ; Nathan Newman, Search, Antitrust, and the Economics of the Control of User Data31 Yale J.

For example, Amazon acquired Zappos. See Steven Davidoff Solomon, Tech Giants Gobble Start-Ups in an Antitrust Blind SpotN. Moore, supra note Google has stated that its biggest rival in search is not Bing or Yahoo, but Amazon. See Vauhini VaraCan Jet. See Grace NotoJet. Com Acquisition Not Enough To Challenge Amazon, Experts SayBank Innovation Aug. These customers could choose to divert all or a portion of their business with us to one of our competitors, demand pricing concessions for our services, require us to provide enhanced services that increase our costs, or develop their own shipping and distribution capabilities.

If these factors drove some of our large customers to cancel all or a portion of their business relationships with us, it could materially impact the growth in our business and the ability to meet our current and long-term financial forecasts. Free ShippingN. Shipping at Amazon costs about 4 percent of sales, and Amazon loses money on it because it offers marketing benefits.

See supra text accompanying notes Where Buying and Selling Power Come TogetherWis. This latter case is an instance of a waterbed effect—where differential buyer power means that some buyers gain at both the relative and absolute expense of other buyers.

See Paul Cole, Should You Use Amazon Discounted UPS Shipping? For many sellers, this is the way to go. Before building out its own delivery operations, Amazon used among others UPS and FedEx.

Daniella KuceraWhy Amazon Is on a Building SpreeBloomberg Aug. Competing Directly with UPS and FedExWall St. See Spencer SoperEBay Ends Same-Day Delivery in U. Jason Del Ray, Amazon Buys Thousands of Its Own Truck Trailers as Its Transportation Ambitions GrowReCode Dec.

Think AgainN. Bernstein analyst who tracks the shipping market. A tie is created when a firm requires consumers interested in purchasing good A to purchase good A the tying good and good B the tied good from the firm. The practice forces an unwilling customer to purchase the tied good while a refusal-to-deal turns away a willing customer. See Einer ElhaugeTying, Bundled Discounts, and the Death of the Single Monopoly Profit TheoremHarv. See Will Mitchell, How To Rank Your Products on Amazon—The Ultimate GuideStartupBroshttp: See Bensingersupra note Greg BensingerCompeting with Amazon on AmazonWall St.

June 27,6: Nancee HalpinThird-Party Merchants Account for More than Three-Quarters of Items Sold on AmazonBus. Spencer SoperGot a Hot Seller on Amazon? Prepare for E- Tailer To Make One TooBloomberg Apr. George Anderson, Is Amazon Undercutting Third-Party Sellers Using Their Own Data? European antitrust authorities do investigate how concentrated control over data may have anticompetitive effects, and—unlike U.

Complaints from companies that their rivals are acquiring an unfair competitive advantage through acquiring a firm with huge troves of data may also prompt U. See Rachael King, Salesforce. Evans, The Antitrust Economics of Multi-Sided Platform Markets20 Yale J. See Julian Wright, One-Sided Logic in Two-Sided Markets3 Rev. Essays on Multi-Sided Business Two-sided markets are platforms that have two distinct user groups that offer each other network benefits.

These pricing and other business strategies are needed to solve a fundamental economic problem arising from the interdependency of demand on both sides of the market. In some cases, the product could not even exist without efforts to subsidize one side of the market or the other. Brody Mullins et al. Antitrust Probe of GoogleWall St. Times July 14,http: Interestingly, agencies have required vertically merging parties to erect firewalls to prevent anticompetitive use of data.

Mike Shields, Amazon Looms Quietly in Digital Ad LandscapeWall St. See Eric Newcomer, Uber Draws Fresh Amazon Comparisons as Growth Trumps ProfitBloomberg July 1, Uber does not just lose money in the aggregate by reinvesting more than it generates, but also by pricing rides below what it pays drivers.

In other words, it is pricing below its variable costs—which enforcers traditionally read as a sign of predatory pricing. July 31,8: Times June 2,http: The Supreme Court has affirmed the validity of EMH. John Fund, S. Ironically, the logic that is motivating investors—the idea that it is worth encouraging platforms to bleed money to establish a dominant position and capture the market, at which point these firms will be able to recoup those losses—maps on to the logic underpinning current predatory pricing doctrine.

The main issue is how narrowly the law currently conceives of recoupment, which does not account for how Amazon can leverage its multiple lines of business. The Disingenuous Ways Uber Hides Behind Its AlgorithmSlate July 27,6: See Felix Salmon, Why the Internet Is Perfect for Price DiscriminationReuters Sept. See David Singh Grewal, Before Peer Production: Infrastructure Gaps and the Architecture of Openness in Synthetic Biology20 Stan. The feedback between the manufacturers and retailers creates a network effect that is a significant and durable competitive advantage for Bazaarvoice.

Chamber of Commerce at TecNation Sept. See Stuckesupra note 38; Horizontal Merger Guidelinessupra note 44, at 2. Economyin Untamed: How To Check Corporate, Financial, and Monopoly Power 18, 18 Nell Abernathy et al.

Admittedly, this approach would not reach vertical integration that arose due to internal expansion. That type of vertical integration could be covered by the prophylactic approach discussed below. For a list of FTC thresholds, see Revised Jurisdictional Thresholds for Section 7A of the Clayton Act, 81 Fed. For some of the potential concerns raised by this deal, see Kevin Carty, Will Uber Rouse the Trustbusters? Unit, Working Paper No. A strong stake in more than one layer of the industry leaves a firm in a position of inherent conflict of interest.

You cannot serve two masters, and the objectives of creating information are often at odds with those of disseminating it. That is the very first reason for the Separations Principle. This prophylactic approach has also been applied in the power industry.

A New Way Forward for the Essential Facilities Doctrine3 Utah L. OmarovaThe Merchants of Wall Street: Banking, Commerce, and Commodities98 Minn. An Examination of Principal Issues8 Fin. Omarovasupra noteat Bank Holding Company Act ofPub. Omarovasupra noteat citing 12 U. AmazonWall St. Chris IsidoreTarget: Hacking Hit up to Million CustomersCNN Money Jan. That debate has not yet extended to Amazon, but—given the growth of Amazon Web Services—it may be appropriate.

Amazon, Google, and Uber have all shifted regulatory debates and—in some cases—directly shaped outcomes. Times May 7, Lynn, Killing the Competition: William Boyd, Public Utility and the Low-Carbon Future, 61 UCLA L. See Christopher Leslie, Antitrust Law as Public Interest Law2 U.

Sabeel Rahman, From Railroad to Uber: Curbing the New Corporate PowerBos. May 4,http: Sabeel Rahman, Private Power and Public Purpose: Net neutrality is a form of common carrier regime. For an exposition of why net neutrality and search neutrality should apply to major platforms, see Frank Pasquale, Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search EnginesU. For an overview of public utility regulatory regimes, see William A.

It is commonly used to denote a business the product or use of which serves the public generally. I am indebted to David Kim for making this connection at the Yale Law Journal Author Seminar Workshop on October 12, Open InternetFed. Vaheesansupra noteat The three cases that Vaheesan identifies are United States v.

Associated PressU. United StatesU. Law Offices of Curtis V. TrinkoLLP, U. See a Giant ProblemEconomist Sept. But they have two big faults. They are squashing competition, and they are using the darker arts of management to stay ahead.

And Never the Twain Shall Meet? Connecting Popular and Professional Visions for Antitrust Enforcement Sept. Too Much of a Good ThingEconomist Mar.

See Eduardo Porter, With Competition in Tatters, the Rip of Inequality WidensN. Times July 12,http: Progress June 29,http: How To Check Corporate, Financial, and Monopoly PowerRoosevelt Inst. See Neil Irwin, Liberal Economists Think Big Companies Are Too Powerful.

Hillary Clinton AgreesN. But, although we believe competition maximizes consumer welfare, the ultimate standard by which we judge practices is their effect on competition, not on consumer welfare.

It is certainly relevant when a merger will lead to higher prices and reduced output because these results are hallmarks of reduced competition. But the law instructs us to examine whether a merger may substantially lessen competition and that means we must sometimes look to other evidence of harm to competition. NOTE CONTENTS Note Contents.

Price and Output Effects Do Not Cover the Full Range of Threats to Consumer Welfare. Antitrust Laws Promote Competition To Serve a Variety of Interests. Willingness To Forego Profits To Establish Dominance. Expansion into Multiple Business Lines.

Below-Cost Pricing of Bestseller E-Books and the Limits of Modern Recoupment Analysis. Acquisition of Quidsi and Flawed Assumptions About Entry and Exit Barriers.

Amazon Delivery and Leveraging Dominance Across Sectors. Amazon Marketplace and Exploiting Data. Governing Online Platform Markets Through Competition. Governing Dominant Platforms as Monopolies Through Regulation. Predatory Pricing Through the mid-twentieth century, Congress repeatedly enacted legislation targeting predatory pricing. Vertical Integration Analysis of vertical integration has similarly moved away from structural concerns.

Why competitive process and structure matter The current framework in antitrust fails to register certain forms of anticompetitive harm and therefore is unequipped to promote real competition—a shortcoming that is illuminated and amplified in the context of online platforms and data-driven markets.

Price and Output Do Not Cover the Full Range of Threats to Consumer Welfare As discussed in Part I, modern doctrine assumes that advancing consumer welfare is the sole purpose of antitrust.