Building a Foundation for the Future of Antitrust and Competition Policy
Through her scholarly work, policy engagement, and mentorship of students, Professor Fiona Scott Morton is helping modernize competition-related theory and practice.
In May, more than 20 students from across Yale University traveled to Washington, D.C., with Professor Fiona M. Scott Morton to present their ideas on how to update U.S. antitrust laws to representatives from the Department of Justice and the Federal Trade Commission.
The two-day trip—organized through the Thurman Arnold Project (TAP), which Scott Morton founded at Yale SOM in 2019—included meetings with Assistant Attorney General Jonathan Kanter of the DOJ’s Antitrust Division and Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya of the FTC.
Michelle Fang, a fellow at Yale Law School’s Information Society Project (ISP), presented a paper she co-authored with Yale Law School fellow Marcela Mattiuzzo about the application of behavioral economics to online choice architecture—that is, the design and presentation of options on our screens.
“It was amazing,” Fang says, of the experience. “TAP is such a rare opportunity—you get to pick what you want to do, work with someone who has expertise in a different domain, get feedback and guidance from people in academia and policy, and present to the people who are at the forefront of these issues.”
TAP students are thinking critically about the problems that exist in our economy and our society and whether antitrust is a good or viable solution for those problems.
Through TAP, which was created in part to meet demand from students, Scott Morton is training the next generation of competition lawyers and policymakers. The program is just one of the many ways she is helping bring antitrust law, policy, and enforcement into the modern era. In addition to her work as a professor and as founder of TAP, she has testified before Congress; served as the top economist for antitrust in the Department of Justice under President Obama; and authored empirical studies of competition among firms.
She also leads, along with Yale faculty Dirk Bergemann and Katja Seim, the Digital Economy initiative at Yale’s Tobin Center for Economic Policy, which they launched to “accelerate economic understanding of digital markets and policy development to meet the moment of present and future regulation.” Seim has longstanding work on the economics of regulation while Bergemann has pioneered theories of data markets; bringing together these intellectual assets at Yale, Scott Morton says, allows for a broad understanding of an increasingly central part of the economy.
Engagement with government officials and other policymakers is a highlight of TAP—and a hallmark of Scott Morton’s professional work. She regularly advises legislators and their staffs as well as testifying before Congress and federal agencies. Last year the public interest attorney Gene Kimmelman joined TAP to give the project the benefit of his experience in both legislative and executive branches as well as the nonprofit sector. He advises and guides students interested in public interest careers as well as contributing to making TAP work policy-relevant.
Named for a former professor at Yale Law School, Thurman Arnold, who was the head of the DOJ’s Antitrust Division under President Franklin D. Roosevelt, TAP brings together students and scholars from across the Yale community for collaboration on research related to competition, competition policy, and antitrust enforcement. Over the last four years, the project has developed resources to help other academics, students, journalists, and policymakers who are interested in antitrust. Its website features short videos that explain key economic concepts used in competition analysis as well as teaching materials that can be used by faculty at other institutions who want to deepen their antitrust curriculum.
“The website is a way to scale the program so I can share the value of rigorous analytical thinking with more students while still being only one human being,” Scott Morton laughs.
Melody Wang, who participated in TAP as a Yale Law School student, says a “key benefit” of the program is “introducing and exposing students to antitrust in a way that’s relevant and interesting.”
While at Yale, TAP students “are not just drily marching through legal doctrine,” says Wang, who graduated in 2021 and is now an attorney working on antitrust enforcement in the federal government. “They’re thinking critically about the problems that exist in our economy and our society and whether antitrust is a good or viable solution for those problems.”
Scott Morton describes her service in the Department of Justice from 2011 to 2012 as a turning point for her professionally; it was the first time she needed to grapple with how government tools are used to combat anti-competitive behavior by firms. As Deputy Assistant Attorney General for economic analysis (known as the chief economist), she led a team of about 50 economists in analyzing mergers, assessing monopolization cases, and carrying out policy work. There, she worked with Kimmelman, then a Deputy and now a fellow at TAP and the Tobin Center, and David Dinielli, then Special Counsel, now a visiting lecturer at Yale Law School and a fellow at the Tobin Center, on the department’s successful effort to block a merger between AT&T and T-Mobile. Other notable matters considered by the Antitrust Division during her time at DOJ included the proposed H&R Block-TaxAct and AnheiserBusch-GrupoModelo mergers, as well as the development of the American Express and Apple-eBooks cases. Scott Morton loved the work, but she was also struck by what she describes as the “cramped” thinking that had developed over the past 30 years.
“The economic tool kit lets you say, ‘Look here, I have identified a new competition problem that is harming consumers,’” she explains. “A lawyer’s response is often, ‘That’s a new product, market, or problem. It doesn’t fit existing precedent and we don’t know how to use our legal tools to challenge it.’ I realized that very few people in the policy world thought that fixing that second step was their job. Nor did academics.”
Scott Morton blames that aversion to risk-taking on the dominance of the so-called Chicago School of antitrust, which makes the assumption that markets work well almost all the time and so enforcement is rarely needed.
“The Chicago School colonized the field in the 1980s,” she says. “Few in the judiciary or enforcement communities wanted to vigorously enforce the antitrust laws. The Chicago folks made that worse by using [decades-old] economics, which conveniently left out many of the tools you need to get the job done properly.”
Scott Morton has spent the past several years trying to move antitrust enforcement beyond the Chicago School. In addition to her work with students as a professor and through TAP, she has rallied economists and legal scholars to debate policy and write practical, how-to sorts of papers, including a symposium issue of the Penn Law Review that takes down a number of foundational Chicago School assumptions.
“Since her time at the Department of Justice, Fiona has become a real leader in antitrust economics, law, and policy,” says Steven C. Salop, a professor emeritus at Georgetown Law, who has written several papers with Scott Morton.
In particular, Salop noted conferences Scott Morton has helped organize, including one called “Post-Chicago Antitrust Revolution” at the University of Pennsylvania Carey Law School.
“She brought the post-Chicago people together, with the motivation to create a coherent body of work that can be used by policymakers and advocates,” he says, adding that the effort was “innovative and important.”
Scott Morton describes her work as building a “little bridge” between legal scholars, economists, and practitioners.
“Having been on the inside [of government], I can say it’s certainly far easier [to bring a case] when multiple respected academics are saying, ‘Obviously, this is a problem,’” she says. “It’s validation, and it undoubtedly does have an impact.”
Scott Morton’s interest in economics dates back to high school, when her father brought home an introductory book by Paul A. Samuelson, a Nobel Prize winner and a professor at the Massachusetts Institute of Technology, where Scott Morton earned a PhD in 1994 after graduating from Yale College.
“Economics explains the world of business,” she says. “Once you know some economics, you can often tell what firms are going to do and what outcomes are likely to be. It’s very practical, and, at the same time, elegant.”
After graduating from MIT, Scott Morton began her career as an academic, including at Stanford University and the University of Chicago; she became a professor at SOM in 1999 and has remained on the faculty ever since. Her past scholarship has explored a variety of topics in industrial organization and the healthcare industry in particular. One important paper analyzed the practice of surprise medical billing, which was banned by Congress in 2020 after Scott Morton’s research with her Yale colleague Zack Cooper helped bring it to light. But she has recently been laser-focused on the digital economy, as are most of her students.
“It’s the second Gilded Age,” she explains. “Students feel their lives are completely dominated by platforms. We need a reset.”
In May and June of 2020, Scott Morton and Dinelli co-authored a series of papers laying out how the United States could enforce its antitrust laws against Google and Facebook. At that point, U.S. prosecutors and regulatory agencies were investigating but had not yet filed any cases.
By the end of that year, the Federal Trade Commission had sued Facebook, and the Department of Justice, joined by 11 states, had sued Google.
In the paper discussing Facebook, Scott Morton and Dinielli describe how the social media platform grew in size in part by misleading consumers about its use of their data and then systematically acquiring potential competitors to eliminate any threat to their business. Their two papers describing possible antitrust violations by Google—for monopolization of the digital advertising and digital search markets—describe a pattern of dominance through acquisition and coercion.
Scott Morton is also well known for a 2019 report she co-authored as chair of a nine-person “Committee for the Study of Digital Platforms: Market Structure and Antitrust Subcommittee for the Stigler Center for the Study of the Economy and the State” at the University of Chicago Booth School of Business.
That report details the special attributes of the digital marketplace—including its huge economies of scale and strong network effects—and resulting harms, including markups paid by advertisers that are passed on to customers, manipulative content that can steer customers to choices most profitable to the platform, and decreased innovation due to lack of competition. Scott Morton and her co-authors also offer potential solutions: improved antitrust laws; the creation of a special competition court for antitrust cases; a new regulator for digital markets; and new regulations, such as allowing users to easily move their data between platforms and mandating interoperability for third-party services.
“It was a huge amount of work,” she says. “But it made me organize my own thoughts about digital platforms and what the policy answers are. We are seeing a great deal of market power, and the only way to protect consumers is to regulate intelligently as well as to have an increase in competition enforcement going forward.”
That interest in digital platforms has resulted in additional policy work, in particular, a series of articles forthcoming in the Yale Journal on Regulation on competition issues in digital markets. The series was launched by a group of economist co-authors that also includes Jacques Crémer, Amelia Fletcher, Paul Heidhues, and Monika Schnitzer. “I love working with this group,” said Scott Morton. “The creative process is far more fun with co-authors and I learn an enormous amount from them every time I get on zoom. We have explored a variety of interesting regulatory issues in our papers.”
Jean Tirole, a Nobel Prize-winning professor and honorary chair of the Toulouse School of Economics in France, met Scott Morton when she was a student at MIT; he delivered the keynote address at a conference she helped organized at the Tobin Center in March. He calls her “one of the premier industrial organization economists in the world.” Beyond her academic work, however, he says what stands out about Scott Morton is her “ability to translate our field for competition enforcers.”
“She also has both a huge amount of common sense and a strong personal motivation for the public service,” Tirole says. “She applies what she feels is the best available science to the case and is free of prejudices.”
Crémer, another Toulouse professor who has worked with Scott Morton through the Tobin Center initiative, agrees.
“Some people are great research economists, but you wouldn’t trust their judgment on policy issues,” he says. “She has a unique mixture of strong, practical experience and academic credentials.”