I recently published two pieces assessing Ohio v. American Express, the Court’s most significant antitrust opinion in a decade. At Vox, I explained how the Court’s 5-4 decision ratified a new and troubling approach to antitrust. In short, the Court created a special rule for what it describes as “two-sided transaction platforms”—a term that encompasses, for example, Amazon and Uber. Antitrust plaintiffs seeking to hold these firms accountable for wielding their power in anticompetitive ways will have to meet a much higher burden, at the earliest stage of litigation. At Take Care, I identify two areas where the Court’s majority showed remarkable disregard for traditional antitrust principles. Specifically, the Court’s reasoning assumed conduct not at issue in this case—which means it introduced a special rule that is untethered from the practices that could justify the exception in the first place. Moreover, its special rule turns on a concept that is far too malleable to sustain a critical legal distinction, undermining administrability and predictability.
In short, the Court’s decision is likely to suppress legitimate antitrust suits. It comes amid growing recognition that antitrust has failed to keep markets competitive, and that dominant companies have concentrated power across our political economy, enabling firms to depress wages, hike prices, block the rise of new businesses, stifle innovation, and exert undue political power. American Express freshly illustrates the role that the judiciary has played in defanging antitrust over decades, marshaling select economic theories and methodologies to craft jurisprudence deeply at odds with the values that animated antitrust laws. This case is a good reminder that revitalizing antitrust will require Congress and the antitrust agencies to reassert their authority over shaping the substantive content of antitrust policy.
