By: Kenneth M. Bernstein*
Abstract
This Comment discusses whether American antitrust laws should address market structure or price harms caused by Big Tech dominators. The first, “structure” harm occurs when a dominator acts to keep businesses out of a market. The second, “price” harm occurs when a dominator raises the price of goods for consumers without a subsequent loss in demand. The second harm cannot happen without the first: dominators need to subdue competition before they can charge excessive prices.
The American government wavers in which of the two antitrust harms it regulates, fueling the “structure-price” debate. Since the 1970s, the United States has avoided regulating structure harms. However, “Neo-Brandeisian” scholars are challenging that policy. Neo-Brandeisians compare Big Tech companies to post-Industrial Revolution oil and railroad giants. Neo-Brandeisians advocate to expand antitrust policy because today, structure harms pervade technology markets, but price harms do not: Big Tech products are often free to use.
In United States v. Google LLC, the District Court of D.C. adopted Neo-Brandeisians’ suggestions. The court held that even though the Big Tech giant Google could not manipulate market prices, it still violated the Sherman Act by acting to block competition. Following the decision, news sources predicted that Google would influence future courts to expand antitrust laws and redress structure harms.
This Comment examines whether Google will influence courts to adopt Neo-Brandeisian recommendations against Big Tech companies and what the economic implications would be if they did. Legally, this Comment concludes that regulating Big Tech companies’ market-structure dominance is supported by existing, deeply-rooted law. Economically, this Comment concludes that the structure interpretation will remedy current Big Tech antitrust concerns.
*J.D. Candidate, The Pennsylvania State University Dickinson School of Law, 2026. The author would like to thank Mark, Jennifer, Matthew, Kaitlyn, Kyle, and Mason Bernstein for their support.