Preston Ossman ’25
Photograph by Kathleen Dooher
Monopolizing Student Interest
As technology reshapes markets, antitrust gains a competitive edge in the classroom.
BY ALEXANDER GELFAND
In Professor Elettra Bietti’s antitrust classes, every seat is taken. Even she marvels at the strong demand for a subject that’s been considered, for decades, a bit of a yawn by those not focused on the ins and outs of market regulation and consumer protection.
Preston Ossman ’25 (above), a student in her class this past fall, doubts that he would have been drawn to the topic of antitrust when he graduated from college eight years ago. But he now grasps the significant role played by the Federal Trade Commission (FTC) and the US Department of Justice (DOJ) in protecting consumers. “The FTC and DOJ have a different ground for standing than private antitrust litigants and are rooted in their commitment to the public benefit,” says Ossman. “Providing consumers with protection is critical.”
Much of the student interest in antitrust revolves around the recent spate of investigations and cases that the FTC and DOJ have brought against Big Tech — the handful of Silicon Valley giants that have become such ubiquitous and powerful players in our modern economy.
“Students are very curious about why this is happening and about what kind of law they might have to work with if they decide to enter this field,” says Bietti, an expert on the regulation of digital technologies, data and digital platform intermediaries who studies the power of platform companies such as Google and Meta. “This wave of interest might shift in the wake of Donald Trump’s second presidency, but the future of antitrust is not just about the next four years. It will be in the hands of the generation of lawyers and leaders we are training now.”
Over the past several years, federal enforcement agencies have successfully sued Google for illegally monopolizing online search and related advertising; gone after Apple for using its tightly integrated ecosystem of devices and apps to keep customers captive and competitors at bay; accused Meta of quashing nascent rivals by acquiring companies such as Instagram and WhatsApp; and argued that Amazon exploits its market power to stifle innovation and prevent rivals and thirdparty sellers from lowering prices.
It was, in fact, the first Trump administration that initially sued Google over antitrust concerns, which led to a ruling by a district court judge last August that the tech giant illegally monopolized the search engine market. However, it’s widely expected that moving forward, Trump will dial back many of the Biden administration’s policies, including its efforts to break up Google.
During the Biden administration, tech-oriented cases and inquiries were especially noteworthy not only for their boldness — the last major antitrust case involving a tech company was brought against Microsoft back in 1998 — but also for the novelty of the legal and economic arguments on which they rested.
“Until around 2020, the digital economy was mostly reliant on self-regulation. Then, during the Biden years, we saw a lot of proactive enforcement,” says Bietti, who believes that this new approach to antitrust has generated far too much enthusiasm to fade away with a change of government. “Law students and advocates have the appetite and the tools to advance lasting antitrust enforcement sensitive to society’s needs and to fight capture by tech giants and other business interests.”
The actions taken by the agencies against Big Tech up through 2024 were part of a larger antitrust renaissance steered by Lina Khan, former chair of the FTC, and Jonathan Kanter, former head of antitrust at the DOJ. In September, Bietti invited Kanter to speak to her antitrust class, providing students with first-line access to one of the key players in shaping the federal government’s strategies. According to Ossman, the excitement about conversing with Kanter in the classroom was “palpable.”
Professor Elettra Bietti
Photo by Kathleen Dooher
The future of antitrust is not just about the next four years. It will be in the hands of the generation of lawyers and leaders we are training now.
Leveling the Field
Antitrust law emerged more than 100 years ago — see the Sherman Act (1890), the Clayton Act (1914) and the Federal Trade Commission Act (1914) — as part of an effort to curb the monopolistic behaviors and anticompetitive practices of Gilded Age robber barons. For decades, it maintained a distinctly populist and interventionist cast. But the federal statutes proscribing unlawful mergers and business practices are both sparse and vague, leaving plenty of room for differing interpretations. By the 1970s, the enforcement agencies and the courts, inspired by the Chicago School of Economics, were emphasizing factors such as economic efficiency, low prices and high quality when evaluating mergers and allegedly anticompetitive practices.
“Almost as a devil’s advocate, I find myself asking, ‘How do you make sure that you are not actually making things more expensive for consumers or more difficult for innovation?’” says Boyer, who also took Bietti’s class in the fall. “Balancing caution and action is a very important thing.”
During the Biden administration, the agencies were intent on putting a halt to the unfair practices they alleged Big Tech used to entrench its control over existing digital markets. At the same time, they wanted to head off future problems in emerging areas such as AI. “The effort was to fight or reverse the power of incumbents but also to nip bad behavior in the bud,” Bietti says.
That two-pronged approach represented a significant change in itself. Once almost exclusively concerned with ex-post or after-the-fact measures, the enforcement agencies became far more willing to engage in ex-ante or preventive ones.
Though Bietti thinks this change in attitude is likely to be reversed, at least in part, by the Trump administration, she nonetheless believes that achievements such as the Google verdict are here to stay — and that the fight will continue. “A revival of Chicago and neoliberal underenforcement will not come without costs, including potential resistance from a new generation of enforcers and practitioners who won’t unsee the potential of antitrust law,” she says.
Bietti notes that a similar pivot from ex-post to ex-ante intervention occurred in Europe, where legislation such as the Digital Markets Act aims to prevent digital platform companies such as Google, Amazon and Meta from imposing unfair conditions on businesses and consumers. Here in the United States, bipartisan efforts to pass similar legislation have mostly failed, leaving the enforcement agencies to fill the void left by Congress.
The need for such ex-ante measures is especially acute in the case of digital platform companies, says Professor John Kwoka, a member of the Northeastern University College of Social Sciences and Humanities faculty who served as chief economic advisor to Khan and worked on the revised merger guidelines jointly issued by the agencies in 2023.
“In the tech area, a lot of what might be found to be anticompetitive is found only long after the fact — and is very difficult to reverse,” he explains.
For example, network effects, where the value or utility of a product, service or platform increases as more people use it, can give the largest tech companies such an advantage over upstart rivals that by the time an actor like Google is deemed a monopolist, there are no simple remedies.
In keeping with the recent trend toward ex-ante measures, the new merger guidelines highlight the need to keep in mind the special nature of digital platforms when considering whether a merger might violate antitrust laws and reduce competition.
Ex-post measures, meanwhile, vary from conduct remedies, like ordering companies to refrain from certain kinds of deals, to structural remedies, like breaking them up into pieces.
The Biden administration DOJ, for instance, asked the federal judge in the Google search case to make the tech giant divest its Chrome web browser and Android units. If and when it comes, the judge’s remedial decision could influence the outcomes of the other cases that have been brought by the agencies — but in Bietti’s view, the Google litigation has already reshaped the digital landscape and could fuel private and public antitrust actions for years to come.
David Balto ’83,
Photo by Christ Hartlove
“Regulatory Humility verging on celibacy” is how David Balto describes past underenforcement of federal statutes.
Risks and Rewards
If the Chicago School of Economics provided the economic rationale for the preceding era of antitrust, modern economists like Kwoka helped broaden the lens the agencies use to evaluate the practices of Big Tech and the harms they can cause.
Consider Apple’s ecosystem of apps and devices: while consumers appreciate the seamless integration it affords, behavioral economists have demonstrated that its “stickiness” creates a so-called walled garden that users cannot easily escape and potential rivals cannot easily penetrate. The agencies argue this prevents fair competition and deprives consumers of better options — in part by preventing rivals from developing them in the first place.
Similarly, the agencies claim that Google’s practice of paying Apple $18 billion per year to make its search engine the exclusive default option for the Safari web browser on the iPhone denies consumers choice while forestalling the development of potentially superior options by competitors.
They further contend that Amazon’s dual role as marketplace and seller has led to abuses like punishing third-party sellers who offer their products at lower prices through other channels and prioritizing the company’s own products over those of the sellers who pay to place their products on the platform. To the average consumer, Boyer says, the site might look like a “wonderland” of low prices and varied products. But if left unchecked, such practices can ultimately squeeze out potential competitors, leaving many consumers to contend with fewer choices, lower quality and higher prices down the road.
With the change of administration, no one knows for certain whether cases and arguments like these will continue to roll back the old underenforcement consensus. But there are signs that the courts have already begun to come around — even when the agencies lose.
In 2023, for example, the FTC failed to block Meta’s acquisition of the virtual reality startup Within. But the judge overseeing the case nonetheless accepted the novel argument that mergers between companies that don’t currently compete against each other can still violate antitrust by hurting potential competition in a market that could become robust in the future.
A similar logic underlies the inquiries that the agencies have launched into the multibillion-dollar investments Microsoft, Amazon and Google have made in the AI startups OpenAI and Anthropic. While not structured as traditional mergers, these deals could nonetheless allow the big tech companies to further cement their dominance by co-opting new technologies that smaller companies might otherwise have used to challenge them.
That willingness to experiment and take risks has made the agencies “a good place for bright young lawyers who want to apply the law creatively in challenging settings,” Kwoka says.
At least some of those bright young lawyers appear to agree.
“Working for the Federal Trade Commission under an administration that prioritizes the public good could be really interesting,” says Ossman.
Evan Boyer ’26
I find myself asking ‘How do you make sure that you are not actually making things more expensive for consumers or more difficult for innovation?
About the Author
Alexander Gelfand is a freelance journalist living in New York City who frequently writes about law, business and technology
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