75 Am. U. L. Rev. 1535 (2026).

Abstract

Business competition is not a free-for-all in which firms can compete and triumph by hook or crook. Instead, market rivalry is a process structured by laws of general application and sector-specific rules. Certain competitive strategies and tactics are proscribed by statutes, regulations, and common law. Firms may not compete by bombing their rivals’ facilities, bribing the employees of wholesale customers, or making false claims about their own goods.

In a range of industries, however, firms choose to compete by violating laws protecting consumers, workers, businesses, and the public and obtaining an unfair cost or other advantage over their rivals. Examples include Uber, which has paid out hundreds of millions of dollars to states and workers for misclassifying its drivers as independent contractors, OpenAI, which was charged with rampant copyright infringement by the New York Times, and Volkswagen, which lied about the tailpipe emissions of its cars to build a market for diesel passenger vehicles in the United States. Given its elastic statutory authority, the Federal Trade Commission should prosecute such large-scale lawbreaking as an unfair method of competition and reinforce public policy.

* Legal Director, Open Markets Institute. The Author thanks Elliott Becker, Keldon Bester, Ben Cady, Brian Callaci, Eamon Coburn, Daniel Francis, Hiba Hafiz, Daniel Hanley, Luke Herrine, Amanda Jaret, Claire Kelloway, Filippo Lancieri, Phil Longman, Andrew McLean, Karina Montoya, John Newman, Tara Pincock, Courtney Radsch, Jessica Rutter, Sarang Shah, Ganesh Sitaraman, Randy Stutz, Katie Wells, and Elizabeth Wilkins for valuable conversations and input on earlier drafts and Madison Johnson, Annemarie Kearns, Riya Mehta, and Arjit Roshan for excellent research assistance.