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- Title
QUALITATIVE MARKET DEFINITION.
- Authors
Nachbar, Thomas B.
- Abstract
Modern antitrust law has come under intense criticism in recent years, with a bipartisan chorus of complaints about the power of technology and internet platforms such as Google, Amazon, Facebook, and Apple. A fundamental issue in these debates is how to define the "market" for the purposes of antitrust law. In the Supreme Court's first antitrust case on platforms (2018's Ohio v. American Express), the definition of the relevant market was the central issue. The Justices' 5-4 split on the issue was particularly stark, with the dissent describing the majority's approach as not only "wrong" but "economic nonsense." Partially in response to the controversy in American Express, recent judicial, legislative, and regulatory proposals have even suggested doing away with market definition in some antitrust cases. The root problem, this Article shows, is that modern market definition has been treated in antitrust as a matter of quantitative economics, with markets defined by economic formulas lacking a connection to widely held social understandings of competition. Antitrust law needs to augment these quantitative approaches by explicitly acknowledging qualitative aspects of markets, including the normative visions of competition they represent. Such an approach is hardly radical. Such qualitative factors have been part of market definition since its origin, and federal antitrust regulators have recently solicited public comment on whether to include qualitative factors in market definition. This Article argues that market definition is necessarily normative and describes an approach for including qualitative criteria in market definition so that market definition accurately reflects the types of competition antitrust law seeks to protect.
- Subjects
ANTITRUST law; BIPARTISANSHIP; UNITED States. Supreme Court; QUALITATIVE research; ECONOMICS
- Publication
Virginia Law Review, 2023, Vol 109, Issue 2, p373
- ISSN
0042-6601
- Publication type
Article