A symposium examining the contributions of the post-Chicago School provides an appropriate opportunity to offer some thoughts on both the past and the future of antitrust. This afterword reviews the excellent papers presented with an eye toward appreciating the contributions and limitations of both the Chicago School, in terms of promoting the consumer welfare standard and embracing price theory as the preferred mode of economic analysis, and the post-Chicago School, with its emphasis on game theory and firm-level strategic conduct. It then explores two emerging trends, specifically neo-Brandeisian advocacy for abandoning consumer welfare as the sole goal of antitrust and the increasing emphasis on empirical analyses.
Patent holdup has proven one of the most controversial topics in innovation policy, in part because companies with a vested interest in denying its existence have spent tens of millions of dollars trying to debunk it. Notwithstanding a barrage of political and academic attacks, both the general theory of holdup and its practical application in patent law remain valid and pose significant concerns for patent policy. Patent and antitrust law have made significant strides in the past fifteen years in limiting the problem of patent holdup. But those advances are currently under threat from the Antitrust Division of the Department of Justice, which has reversed prior policies and broken with the Federal Trade Commission to downplay the significance of patent holdup while undermining private efforts to prevent it. Ironically, the effect of the Antitrust Division’s actions is to create a greater role for antitrust law in stopping patent holdup. We offer some suggestions for moving in the right direction.
There is a growing concern over concentration and market power in a broad range of industrial sectors in the United States, particularly in markets served by digital platforms. At the same time, reports and studies around the world have called for increased competition enforcement against digital platforms, both by conventional antitrust authorities and through increased use of regulatory tools. This Article examines how, despite the challenges of implementing effective rules, regulatory approaches could help to address certain concerns about digital platforms by complementing traditional antitrust enforcement. We explain why introducing light- handed, industry-specific regulation could increase competition and reduce barriers to entry in markets served by digital platforms while better preserving the benefits they bring to consumers.