Tech Monopoly

Herbert Hovenkamp is the James G. Dinan University Professor at the University of Pennsylvania Carey Law School and the Wharton School. He is a Fellow of the American Academy of Arts and Sciences, and in 2008, he won the Justice Department’s John Sherman Award for lifetime contributions to antitrust law.

Preface: Antitrust and Big Tech   v
Chapter 1: Introduction: the Antitrust Laws 1
A Thumbnail History 1
The Scope of Antitrust 5
What Conduct Violates the Antitrust Laws? 8
Restraints of Trade, Horizontal and Vertical 8
Monopolization 13
Price Discrimination 15
Anticompetitive Mergers 17
Antitrust and Economics 19
The Principal Schools of Antitrust Thought 22
Conclusion: the Goals of the Antitrust Laws 27
Chapter 2: Antitrust and Power 30
Market Power 30
“Power?” or “Size”? 38
Market Power and Efficiencies 43
Market Power, Patents and Other Intellectual Property Rights 47
When Must Market Power Be Measured? The Per Se Rule 50
The Rule of Reason 51
“Switching Costs” and Barriers to Entry 53
Human Behavior and Market Power 59
Two-Sided Platforms, Attention Markets, and “Winner-Take-All” 61
Chapter 3: Anticompetitive Conduct and Big Tech 66
Introduction 66
The Nature of Competitive Injury 68
Monopolization: Exclusionary Practices by Dominant Firms 70
Refusal to Deal and “Self-preferencing” 72
Anticompetitive Practices Involving Intellectual Property (IP) 78
Anticompetitive Distribution, Including Pricing 82
Attempt to Monopolize and “Abuse of Dominance” 87
Anticompetitive Agreements and Default Rules 90
Anticompetitive Tech Mergers 98
Conclusion 102
Chapter 4: Antitrust Solutions for Tech Monopoly Problems 104
Introduction 104
Remedies and Causation 107
Injunctions and Damages 109
Structural Remedies – “Breakups” 112
Breaking Into the Monopoly 114
Remedies and “Winner-Take-All” Markets 117
Interoperability and Portability as Antitrust Remedies 122
Reorganizing Management Instead of Firms 133
Conclusion 137
Glossary 138
Suggestions for Further Reading 147