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Innovation under section 2 of the Sherman Act

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Antitrust cases, including recent complaints filed against dominant technology platforms, have alleged conduct that harms innovation. Courts, however, have little experience adjudicating such allegations. This article concludes that Section 2 of the Sherman Act is sufficiently broad to address conduct that harms innovation and describes various ways in which innovation might affect the determination of antitrust liability or provide a defense against anticompetitive conduct. The article briefly reviews the economics literature relating the effects of market power on innovation incentives and identifies circumstances in which structural conditions warrant a presumption that anticompetitive conduct by a dominant firm is likely to harm or promote innovation.

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