Jennifer E. Sturiale (Delaware Law School) has posted Condemning Monopoly (79 Baylor Law Review, forthcoming 2027) on SSRN. Here is the abstract:
Monopoly is harmful. But under U.S. antitrust law, only monopoly acquired or maintained by exclusionary conduct is unlawful. At the same time, the U.S. Constitution permits property to be taken for “public use” as long as the property owner receives just compensation. “Public use” is a fairly low bar, as it merely means that the property must be used for a “public purpose.” The Supreme Court’s decision in Hawaii Housing Authority v. Midkiff holds that one such valid public purpose is the correction of an “oligopoly” in land. This article tests the limits of that holding. It does so by contemplating the use of the eminent domain power to correct monopolistic markets. In undertaking this analysis, this article is a thought experiment that assesses whether the eminent domain power is a sleeper pro-competition tool that is outside of the antitrust laws.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum