High Tech Monopolies: Cutting the Gordian Knot With No-fault

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Nascent Competitors and Antitrust Enforcement Regulation and Digital Platforms (“Digital Platforms”) are excellent articles. Both raise timely and extremely important problems and analyze them rigorously. Sadly, neither offers practical solutions that courts often will utilize. They each discuss problems that are protected from pro-competitive solutions by a Gordian knot of judicial precedent. The articles’ proffered solutions rarely will be implemented due to the current judicial interpretations of Section 2 of the Sherman Act. The only way an effective solution could arise would be if courts undertake a textualist analysis of the Sherman Act and thereby adopt no-fault monopolization, holding that firms violate Section 2 regardless of whether they engaged in anticompetitive conduct.

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