Sandeep Vaheesan
93 Geo. Wash. L. Rev. 610
For decades, the theme of nondomination has been largely absent from federal antitrust law. Beginning in the 1970s, the Supreme Court held that short-term economic efficiency would be the guiding principle of its interpretations of the Sherman Act. Limiting domination in economic life was dismissed as a relic of the old common law. Subsequently, the Supreme Court in a series of decisions relaxed postwar antitrust rules governing contractual controls and vertical restraints. These decisions were based on weak theoretical and empirical foundations. Further, they empowered corporations to control independent trading partners through contract such that corporations could obtain employer-like control without the duties of employers. The result has been a flourishing of “fissured work” arrangements, including in the fast-food industry and gig economy. Millions of nominally independent workers and proprietors, whether fast-food franchisees or Uber drivers, are under the thumb of powerful corporations and enjoy little independence.
Antitrust law is on the cusp of a nondomination revival, with the Federal Trade Commission (“FTC”) resurrecting this norm. In April 2024, the FTC prohibited noncompete clauses for all workers. Critically, the rule is based in part on nondomination principles and limiting employers’ ability to coerce workers into signing noncompete contracts and to prevent workers from pursuing other employment opportunities. The FTC rule could be the start of a major reorientation of antitrust law. To carry out this project, the FTC should use its expansive policymaking powers under the FTC Act to target other contractual methods of domination, such as exclusive dealing and most-favored-nation clauses.
