“Antitrust’s Problem with Time,” Gregory Day, University of Georgia

Antitrust errs against enforcement. A primary reason is that monopolies and restraints of trade are expected to attract new competition and thus self-correct; after all, upstarts should logically charge low rates to usurp consumers from a high-priced monopolist, forcing the monopolist to reduce its own prices without antitrust’s help. Bolstering the presumption against intervention, heavy-handed enforcement is believed to create greater dangers than allowing some anticompetitive practices to evade scrutiny—especially if markets self-correct eventually. Courts have even asserted that a monopoly can benefit society if it spurs firms to become more efficient and innovative, lasting until the market corrects. This landscape has inspired the scaling back of antitrust over the last decades.

Along the way, the research shows that antitrust’s blind spot is pervasive throughout the law where concepts of time can vary by a person’s investment in the status quo. When Obergefell affirmed gay marriage, LGBTQ+ activists discussed waiting generations for relief while the dissent stated that change should have come from slower legislatures who were already debating and validating gay marriage; and that democratic processes built over time would have garnered more acceptance. This mirrors how the Chicago School revolutionized antitrust and, in doing so, prioritized non-intervention and long-term goals. All in all, this Article excavates the hidden role of time as a function of change within antitrust and across legal doctrines.

Greg Day is an Associate Professor of Legal Studies at the Terry College of Business, University of Georgia and holds a courtesy appointment in the School of Law. He is also an Affiliated Fellow at Yale Law School’s Information Society Project as well as the University of North Carolina’s Center for Information, Technology, and Public Life. His research has primarily focused on the intersection of competition, technology, innovation, and privacy as well as the disparate impact of anticompetitive conduct. His scholarship can be found in the Cornell Law Review, Michigan Law Review, Washington University Law Review, Minnesota Law Review, American Business Law Journal, and others. He is also internationally recognized for his knowledge of the art market and the laws governing it.