A Remedy-Centered Approach to Antitrust

John O. McGinnis* & Grace Stippich**

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.

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© 2024 John O. McGinnis & Grace Stippich.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*John O. McGinnis is the George C. Dix. Professor in Constitutional Law at Northwestern University Pritzker School of Law.  Thanks to Dhruv Agarwal, Zach Clopton, Paul Gowder, Ezra Friedman, Alex Lee, Jim Pfander, Jim Speta, and Danny Sokol for helpful comments on earlier drafts.

**Grace Stippich, J.D. Northwestern Law School, 2023.  This article is written in a personal capacity.