A Revival of Nondomination in Antitrust Law
WASHINGTON - Open Markets Institute Legal Director Sandeep Vaheesan’s article on the philosophical significance of the Federal Trade Commission’s Non-Compete Clause Rule–“A Revival of Nondomination in Antitrust Law”–was published today in The George Washington Law Review.
Vaheesan examines how the core principle of nondomination—once foundational to American antitrust law—was exiled from the law by the Supreme Court and how the FTC revived it in last year’s landmark ban on non-compete clauses.
Beginning in the 1970s, the Supreme Court remade antitrust doctrine and initiated a major shift away from protecting individuals and businesses from domination by powerful corporations. This judicial counterrevolution enabled firms to use contractual arrangements to exert employer-like control without assuming the responsibilities of employment, fueling the rise of precarious “fissured work” in industries from fast food to the gig economy. A firm like Uber can have its cake and eat it too, controlling its drivers as employees without guaranteeing them a minimum wage, overtime pay, and workers’ compensation in the event they are injured on the job. For these workers, they have a boss but are stripped of the legal protections of employment.
“The Supreme Court’s marginalization of nondomination from antitrust law helped produce domination everywhere in the U.S. economy,” Vaheesan writes.
However, Vaheesan argues that antitrust law may be at the threshold of a significant transformation. He spotlights the Federal Trade Commission’s landmark April 2024 ban on noncompete clauses for all workers—a policy grounded in nondomination principles—as a signal of this revival. This move marks a critical step toward curbing coercive practices that limit the freedom of workers and entrepreneurs.
Looking forward, Vaheesan urges policymakers to expand this revival by defending against legal challenges to the noncompete ban and by targeting other contractual tools of corporate domination—such as exclusive dealing and most-favored-nation clauses—through the FTC’s robust policymaking authority. The FTC has the power to establish effective independence for independent workers and businesses.
“A Revival of Nondomination in Antitrust Law” not only traces the judicial erosion of an essential principle in American competition law but also charts a practical roadmap for reclaiming it to build a more just and equitable economy.