Resetting Section 2

Abstract

Large firms are receiving closer antitrust scrutiny today than at any time in recent history, although digital platforms are bearing the brunt. Some of these firms are dominant, with large market shares in the products they sell, but often they are not. Is this new scrutiny insufficient, excessive, or misdirected? This essay briefly considers whether and how Section 2 of the Sherman Act should be reset to address these new concerns. It argues, first, that much of the recent attention is misdirected because it has not identified the monopoly problem correctly. Secondly, US antitrust law could benefit from an ‘abuse of dominance’ standard somewhat like that imposed in the European Union. Thirdly, it argues that the fundamental concern of Section 2 law remains unilateral conduct that threatens reduced market output and increased prices. Finally, it urges caution in pursuing structural relief as a non-merger remedy.