Recovering Antitrust’s First Principles in a Generational Moment
We are in a generational moment for antitrust. The federal courts are currently hearing more monopolization cases initiated by the federal government than in the past 20 years against some of the largest corporations in American history, including Google, Meta, and Amazon. Scholars and lawmakers are vigorously contesting the purpose of the antitrust laws, the kinds of conduct they restrain and promote, and whose interests they serve. The result of these enforcement actions and answers to these questions will likely shape enforcement for a generation.
These fundamental inquiries form the core of two recent addresses I gave at Harvard Law School and at the Sturm College of Law at the University of Denver. The first set of remarks, delivered to the Harvard Law School Antitrust Association on March 11, 2026, was titled Realizing the Full Promise of the Antitrust Laws. The second, delivered at the Denver Law Review’s Volume 103 Symposium on April 17, 2026, was titled Effectuating Antitrust’s Democratic Function.
Although I delivered these remarks in different settings, the two are part of the same project: recovering the broader public purpose of the antitrust laws at a moment when their meaning, enforcement, and future are again being contested.
The Harvard remarks argue that the consumer welfare standard, the predominant analytical framework for determining what conduct should be unlawful under the antitrust laws, has severed antitrust from its ability to prevent our society from being captured by dominant corporations. Drawing on the legislative history of the antitrust laws, I make the case for recentering antitrust on the distribution of power and outline a civic mandate to confront oligarchic control, restore democratic self-governance, and secure individual liberty.
The Denver remarks build on that foundation by arguing that the antitrust laws have a democratic function, not merely an economic one. My remarks detail how antitrust’s enforcement structure creates broad mechanisms to safeguard and promote democracy. For example, I detail how antitrust doctrines like Parker Immunity, which allows states to exempt conduct from the antitrust laws, can help promote a more democratically inclusive and accountable society.
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For decades, the dominant account treated antitrust primarily as a technocratic field guided solely by narrow measures of “consumer welfare.” That account was never accurate and is deeply flawed. It obscured the law’s deeper purpose and narrowed the public’s understanding of what antitrust can and should do.
Operating as laws of power allocation, Congress enacted the antitrust laws in response to concentrated private power and the threat it posed to liberty, equality, and democratic government. The antitrust laws determine when private actors may coordinate, when they may not, who may control access to markets, who sets the terms of participation, and whether workers, consumers, small businesses, communities, and citizens are left dependent on dominant firms’ decisions. They also establish legal boundaries between fair and unfair economic conduct. In doing so, they shape the conditions under which people exercise agency in economic and civic life. It is for this reason why antitrust cannot be understood in isolation from democracy.
Recovering that purpose is essential because today’s economy mirrors the concentration the statutes were designed to break. The economy is again dominated by firms with extraordinary control over commerce, labor, communications, infrastructure, and politics. Enforcing the antitrust laws remains the necessary remedy for this situation.
Taken together, these remarks argue that the antitrust laws should be understood as a public law tradition concerned with power, liberty, and democratic self-government. How the antitrust laws fulfill this function requires a clearer account of what this domain of law is for. My remarks (hopefully) provide much-needed detail on just that.
The full remarks are available at the links:
Realizing the Full Promise of the Antitrust Laws (March 11, 2026) (remarks to the Harvard Law School Antitrust Association).
Effectuating Antitrust’s Democratic Function (April 17, 2026) (remarks at the Volume 103 Denver Law Review symposium ).
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