A Remedy-Centered Approach to Antitrust

This Article advocates for a remedy-centered approach to antitrust law, placing remedial concerns at the forefront of antitrust analysis. It asserts that the limits of effective remedies should fundamentally shape the scope of antitrust liability. Drawing on the “nirvana fallacy” from economic theory, the Article argues that antitrust should only intervene when a judicial remedy can reliably improve upon market conditions. If no such remedy exists, liability should not be imposed.

The Article further demonstrates how remedial considerations already play a significant, if often unrecognized, role in antitrust doctrines, including the definitions of “agreement,” monopolists’ duties to deal, and the premerger notification program under the Hart-Scott-Rodino Act. These considerations also inform the judiciary’s treatment of antitrust liability in the face of alternative regulatory frameworks. By focusing on remedy, the Article offers a clearer, more coherent approach to existing doctrines and proposes improvements, including for emerging challenges like Big Tech monopolies, including the recent cases against Amazon and Google. Ultimately, the Article emphasizes that remedies are not an afterthought in antitrust; they are essential in determining both the scope of liability and the future development of antitrust law.