The Sling - Antitrust Liability Obligates Structural Change
Senior legal analyst Daniel Hanley is arguing that courts and enforcers must use structural remedies—like breakups and divestitures—against monopolists such as Google, emphasizing that history, law, and precedent require judges to impose sweeping reforms to restore competition and democratic accountability.
Antitrust restructuring of major corporations is on the table in a way it has not been since the Microsoft case in the late 1990s. Indeed, the historic moment may be comparable to the breakup of Standard Oil in the 1910s and AT&T in the 1980s, when courts reorganized those companies and freed the market from their control. Today, judges face a similar opportunity to rein in today’s rapacious monopolists.
Amid rising public pressure to challenge concentrated corporate power, the federal government has, since 2020, filed antitrust lawsuits against Google, Amazon, Meta, and Apple, as well as dominant firms in the agriculture, debit payment, and rental pricing software industries. These cases aim to break monopolistic control of markets, and not merely to stop unfair practices. The outcome of this litigation wave will determine whether antitrust remains a meaningful check on concentrated private power or operates as regulatory theater.
Antitrust enforcers stand poised to secure favorable judgments in lawsuits that affect multiple sectors of the economy. These lawsuits could bolster farmers’ ability to repair their equipment, reduce the costs retailers incur on e-commerce platforms, increase the revenue software developers earn from their smartphone applications, and reduce the interchange fees businesses must pay to credit and debit card companies.
The poster child for the burgeoning possibilities of antitrust remedies involves the lawsuits against Google. In August 2024, Judge Amit Mehta ruled that Google was liable for monopolizing the search market. He found that Google illegally paid Apple and other manufacturers billions of dollars every year to be the default search provider in web browsers on desktops and smartphones, resulting in the foreclosure of critical distribution channels to competitors. In April 2025, Judge Leonie Brinkema held that Google was liable for monopolizing the ad-tech market, which produces the revenue stream that underpins much of our modern media system. In her decision, she found Google used its dominant control over digital advertising to lock in news publishers, impose supra-competitive take rates on Google’s exchange, and exclude competing digital advertising providers.
Other lawsuits against Google, such as the widely publicized lawsuit by game developer Epic Games, have also found Google liable for monopolization. Given this legal onslaught against Google, odds are in favor that the corporation will undergo some form of corporate restructuring. Due to Google’s immense size and scale, the result would fundamentally alter how the public uses and accesses the internet. Breaking up Google—by divesting Chrome or its digital advertising business—would strip the corporation of its control over access to information and online revenue. The shift would mean more competition, the viability of privacy-oriented alternatives, and greater power for journalists, creators, and users concerning how information is distributed and monetized.
A few federal judges and Gail Slater, the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice, will control the scope of the remedies to be imposed on Google. Regardless of any obstacles the DOJ staff may face in determining which remedies they should pursue, one thing is certain: federal judges are vested with all the authority they need to impose the government’s demands, and they are obligated to impose sweeping remedies on antitrust violators like Google.
Flexing the Structural Relief Muscle
Remedies convert violations of legal rights into actionable consequences. In his leading casebook, renowned remedies scholar Douglas Laycock succinctly asserted that “remedies give meaning to obligations imposed by the rest of the substantive law.” In other words, remedies are how democratic institutions prove their legitimacy: equipping the law with real force to answer public calls for action, rather than serving as a meaningless political gesture. Without effective remedies, the law merely functions as a speed limit sign with no police or cameras to enforce it.
The antitrust laws are, in the words of Senator John Sherman, namesake of the titular Sherman Act, “remedial statute[s].” To accompany the sweeping prohibitions on “restraints of trade” and monopolization, lawmakers were diligent to buttress these proscriptions with a panoply of robust remedial provisions.
The antitrust laws include the ability for harmed private parties to obtain treble damages and attorneys’ fees (a novel feature in American law at the time of their enactment). Lawmakers authorized federal, state, and private enforcers to initiate lawsuits, eventually establishing two separate agencies to advance the cause. Further supporting these profound legal tools were the equity provisions that empowered enforcers to seek and, critically, courts to impose structural changes to a business’s operations. The purpose of this vast and deep remedial landscape was to facilitate the “high purpose of enforcing the antitrust law[s].”
At the federal level, the thinking surrounding the purpose and necessary goals of antitrust remedies has been lost for some time. With the notable exception of the antitrust litigation against Microsoft in the late 1990s, market restructuring has simply not been seriously contemplated by enforcers since the 1970s, when the DOJ was litigating its antitrust lawsuit against telecommunications giant AT&T for willfully stifling competition in, among others, long-distance services. According to historian Steve Coll’s book The Deal of the Century, the prospect of breaking up AT&T and imposing other remedies permeated the government’s legal strategy.
After the breakup of AT&T, however, in concert with the purposeful decline in federal antitrust enforcement, the intellectual and institutional muscles supporting ambitious remedies quickly atrophied. Decades of underenforcement drained both the doctrinal imagination and the human talent needed to design and implement structural relief.
For the federal government, a new opportunity to implement robust structural remedies almost presented itself in its lawsuit against Microsoft in the late 1990s. A structural breakup was interrupted, however, due to improper judicial conduct and changes in political administrations. Enforcers ultimately abandoned a breakup in favor of paltry restrictions on Microsoft’s business practices. Subsequent academic literature criticized the handling of the lawsuit for the lack of critical thinking regarding the remedies that enforcers wanted. Not since the antitrust lawsuit against Microsoft has another opportunity of similar magnitude presented itself to federal enforcers.