Lina Khan's 2017 Yale Law Journal article Amazon's Antitrust Paradox is the most influential single law-review article on antitrust in a generation. The argument is more careful and more limited than either its critics or its enthusiasts often portray. It is worth reading what the article actually argued, because what it argued is now the enforcement framework at the FTC.
The Central Claim
Khan argued that the post-Bork "consumer welfare" framework, which treats antitrust harm as consisting of higher short-run prices to consumers, systematically under-counts competitive harm in platform markets. The mechanisms:
First, platform companies can sustain below-cost pricing for long periods, financed by investor expectations of eventual monopoly rents. The traditional predatory-pricing framework requires proof that the predator will recoup the losses through higher prices later, which is hard to prove and easy to disclaim. Amazon's two decades of low profitability before becoming highly profitable is the canonical case.
Second, platform power harms upstream suppliers (sellers, manufacturers, content producers) in ways the consumer-welfare framework does not count. A platform can squeeze its suppliers' margins, dictate terms, and use its position to favor its own competing products. These harms exist even when downstream consumer prices remain low.
Third, platform power affects long-run innovation by foreclosing the next generation of competitors. A startup that competes with Amazon's marketplace cannot compete on terms Amazon itself controls; the marketplace owner has structural advantages no startup can match. The consumer-welfare framework, focused on current prices, misses this forward-looking harm.
What Khan Did Not Argue
The article is often described as calling for Amazon's breakup. It did not — explicitly so. Khan canvassed several remedies, including behavioral separation between Amazon's marketplace and its own retail business, common-carrier-style nondiscrimination rules, and structural separation. She did not endorse a specific remedy. The article is diagnostic, not prescriptive.
The article is also often described as rejecting consumer welfare entirely. It did not. Khan argued that consumer welfare should remain a component of antitrust analysis but should be supplemented by analysis of effects on suppliers, on innovation, on labor markets, and on political-economic concentration. The reduction of antitrust to short-run consumer prices, Khan argued, was a Bork-era simplification that the original Sherman Act framework had not endorsed.
The Earlier Antitrust Tradition
Khan's argument draws on a pre-Bork antitrust tradition that the Reagan-era courts had largely abandoned. The Standard Oil decision, the Alcoa decision, the Brown Shoe decision, and the Philadelphia National Bank decision all incorporated concerns beyond short-run prices — concerns about political-economic concentration, supplier and labor effects, the structure of the economy, and long-run competitive dynamics. The "consumer welfare" reduction associated with Bork was a narrowing that the cases themselves had not required.
Restoring this tradition is what the Khan FTC and the Kanter DOJ have attempted. The argument is not novel; it is a return to an earlier framework. The political-legal question is whether the courts will sustain it under the doctrinal weight of forty years of post-Bork precedent.
The Cases That Followed
Several major cases have applied the Khan framework since 2021.
FTC v. Meta (the Instagram and WhatsApp acquisition challenges). The theory is that Facebook acquired potential competitors specifically to foreclose competition in personal social networking — a "killer acquisition" pattern that the consumer-welfare framework does not easily capture. The case is in active litigation.
United States v. Google (the search-default-payment case). The DOJ won a major ruling in August 2024 establishing that Google's default payments to Apple and others constituted illegal monopoly maintenance. The remedy phase, currently underway, will test how aggressive the court is willing to be on structural relief.
FTC v. Amazon. The September 2023 complaint alleges Amazon used its marketplace position to discriminate against third-party sellers and to favor its own products. The case is in early procedural stages and will likely take years.
Epic v. Apple (the App Store case). Apple won the District Court ruling on monopolization but faced increasing pressure on its 30% commission and anti-steering rules. The DMA-imposed changes in the EU and the Epic-Apple injunctive relief in the US together have produced real changes in App Store policy.
What Comes Next
The Khan framework's institutional test runs through the federal courts. The DOJ won the Google case at the district level; the appeals will determine whether the precedent stands. The FTC's Meta and Amazon cases will be decided over the next several years. The Epic-Apple precedent has set narrower bounds. The pattern across these cases is not yet clear; the courts are working out how to apply the broader Khan framework to specific platform conduct.
Legislative reform — the American Innovation and Choice Online Act, the Open App Markets Act — has not moved through Congress. The enforcement framework therefore depends heavily on what the courts will accept, and on the political durability of the current enforcement leadership.
The European Counterpart
The EU's Digital Markets Act, which entered into force in 2024, implements much of the Khan framework legislatively rather than through case-by-case litigation. The DMA imposes ex ante obligations on designated "gatekeepers" — Amazon, Apple, Meta, Google, Microsoft, ByteDance — including interoperability requirements, restrictions on self-preferencing, and limits on cross-platform data combination. The US has not adopted a comparable framework, partly because the political coalition for it has not coalesced and partly because the US legal tradition favors case-by-case adjudication over ex ante regulation.
The Honest Reading
Khan's article is a careful argument that the Bork-era consumer- welfare framework is too narrow for platform markets, and that a return to the broader pre-Bork tradition is warranted. It is not a call for radical antitrust expansion. The institutional implementation of the framework at the FTC and DOJ is the test case. Whether the courts sustain the framework, whether legislative reform extends it, and whether the EU's DMA-style approach influences US development are the questions for the next decade. The intellectual case has been winning; the legal case is in active litigation; the legislative case remains unmade. The eventual settlement will determine what platform markets in the US will look like through the 2030s.