Abstract
Historically, courts, jurists, legislatures, and scholars have recognized that some businesses provide important services to society in sectors in which competition is unlikely to achieve the public interest. Policymakers adopted statutes that comprehensively regulated the market structure and operations of these businesses as public utilities, including, among other things, by determining entry and exit into business lines; overseeing or affirmatively setting prices; and requiring uniform, nondiscriminatory sales and access. When policymakers had not—or had not yet––stepped in to legislatively regulate these enterprises, abuses of power were possible. Private plaintiffs and governments sued under the common law or antitrust laws to redress anticompetitive, unfair, or otherwise abusive practices. Importantly, when they won, courts regularly applied what we would today call the tools of networks, platforms, and utilities (“NPU”) law to the enterprise as a remedy. Cases in this tradition include some of the most famous in antitrust law and in their respective sectors. In other words, regulatory absences gave rise to antitrust remedies.
The public utility tradition in antitrust remedies sheds light on a range of debates and puzzles. First, it helps clarify and contributes to understanding the relationship between antitrust and regulation, suggesting that rather than being substitutes, antitrust operates more like a backstop. Second, it suggests that NPU regulation may be inevitable in many sectors. The question is whether NPU tools should be adopted legislatively or via remedies, not whether they should apply. Third, the public utility tradition helps make sense of the essential facilities doctrine in antitrust law, which requires the owner of an enterprise that is essential and not readily replicable to serve users on fair terms. A sensible way to interpret the doctrine is that it applies to unregulated public utilities. Finally, the public utility tradition in antitrust remedies supports the case for bolder remedies—and makes sense of the proposed remedies—in the antitrust cases against technology platforms.
Recommended Citation
Ganesh Sitaraman,
The Public Utility Tradition in Antitrust Remedies,
75
Emory L. J.
1217
(2026).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol75/iss5/3