The Structural Directive: Vindicating The High Purpose of the Antitrust Laws

Abstract

After more than a decade of vigorous advocacy by policy analysts, journalists, and legal scholars, federal and state enforcers finally found the political will to initiate numerous antitrust enforcement actions under Section 2 of the Sherman Act—the antitrust provision proscribing unfair monopolization. During the first Trump and Biden administrations, multiple enforcement actions were brought against the world’s largest corporations, some of which are currently navigating the litigation process. Yet, lawsuits are neither the objective nor the measure of success; remedies are. Remedies are the heart, body, and soul of litigation. No enforcement action is consequential without meaningful relief.

With this generational influx of enforcement, antitrust in the United States is at an inflection point. Over the last two decades, federal judges have not had to seriously contemplate or implement structural antitrust remedies. Structural remedies are those that permanently dismantle a corporation’s dominant control and alter the market architecture itself by divesting assets or breaking up firms. The last structural relief issued by a court was in 1982 with the breakup of telecommunications giant AT&T Judges’ experience with structural antitrust remedies has become atrophied, demanding a return to first principles. Judges and enforcers must recenter effective remedies as the core of antitrust law and resist the urge to issue or seek favorable judgments that merely identify violations and restrain the conduct at issue.

To give effect to the “high purpose” of the antitrust laws, judges must adhere to what I call the “structural directive.” The structural directive is the binding doctrinal principle that obligates lower courts to impose the requested structural relief on liable parties—as opposed to merely permitting courts to do so—if the plaintiff requests the remedy and the request is reasonable.