Antitrust experts say the biggest obstacle to Lina Khan's agenda will be a conservative judiciary, which has made it difficult for regulators to win big cases
The fiercest foes of America's technology giants cheered when Lina Khan, a professor at Columbia Law School …
Context & Ripple Effects
Lina Khan arrived in Washington with a reframe, not a playbook: her argument that Amazon wields too much power — the one that made waves in a 2018 profile of her reframing decades of antitrust law — rejects the consumer-price standard that has governed enforcement for a generation. Now confirmed to chair the FTC, she inherits the machinery of merger review and big-case litigation.
The immediate constraint is not political will but the bench. Antitrust experts point out that a conservative judiciary has already made it hard for regulators to win major cases, meaning Khan's agenda will be adjudicated by judges trained on the very doctrine her scholarship seeks to displace.
First-order effects
- The FTC's marquee cases — against Amazon and other tech platforms Khan has targeted in her writing — will live or die in federal court, where judges skeptical of expansive theories of harm hold effective veto power over her agenda.
- Khan's enforcement choices shift accordingly: instead of negotiated settlements or rulemaking, the agency's leverage comes from forcing litigation that tests whether new theories can survive judicial review.
Second-order effects
- A losing record in court hands ammunition to congressional critics of the FTC, who have already framed Khan's litigation-first approach as mismanagement ahead of House Judiciary hearings examining the agency.
- Big Tech acquirers gain a practical playbook: if the judiciary holds to legacy standards, deals the FTC challenges — including attempts like the Meta–Within bid that upend decades of antitrust standards — become tests the agency must repeatedly fund and fight.
Third-order effects
- If the courts consistently reject post-consumer-welfare theories such as the monopsony framing Khan's FTC applies to buyer-power markets, structural change migrates from enforcement to statute — pushing antitrust reform back to Congress, where drafting replaces litigating.
- Sustained judicial resistance risks bifurcating U.S. competition policy: aggressive agency rhetoric coexisting with unchanged merger outcomes, narrowing the gap between how regulators talk about platform power and what actually gets blocked.
The trend: American antitrust enforcement is entering a period in which the binding constraint on reining in Big Tech is no longer agency ambition but whether a doctrinally conservative judiciary accepts new theories of competitive harm.