Word of the Day: haphazardly
This word has appeared in 54 articles on NYTimes.com in the past year. Can you use it in a sentence?
Supported byWord of the dayWord of the Day: haphazardlyThis word has appeared in 54 articles on NYTimes.com in the past year. Can you use it in a sentence?ByThe Learning Networkhaphazardly \ hæpˈhæzərdli \ adverb1.in a random manner2.without care; in a slapdash mannerListen to the pronunciation.The wordhaphazardlyhas appeared in 54 articles on NYTimes.com in the past year, including on Nov. 20 in “How to Clean Up After Thanksgiving Dinner Like a Pro” by Genevieve Ko:Take a cue from caterers and private chefs who replicate the dishwashing efficiency of restaurants in home kitchens by creating systems. Rather thanhaphazardlywash, dry or load whatever is nearby, clean by dish type in stages.Start by putting away leftovers and then scrape all the scraps off plates. Fill an empty casserole dish or serving bowl with hot soapy water and put all of the utensils in there. Next, stack or line up dirty dishes, bowls and glasses by type. If space is tight, bring items into the kitchen by category.Daily Word ChallengeCan you correctly use the wordhaphazardlyin a sentence?Based on the definition and example provided, write a sentence using today’s Word of the Day and share it as a comment on this article. It is most important that your sentence makes sense and demonstrates that you understand the word’s definition, but we also encourage you to be creative and have fun.If you want a better idea of howhaphazardlycan be used in a sentence, read these usage exampleson Vocabulary.com. You can also visitthis guideto learn how to use IPA symbols to show how different words are pronounced.If you enjoy this daily challenge, try ourvocabulary quizzes.Students ages 13 and older in the United States and the United Kingdom, and 16 and older elsewhere, can comment. All comments are moderated by the Learning Network staff.The Word of the Day is provided byVocabulary.com. Learn more and see usage examples across a range of subjects in theVocabulary.com Dictionary. See every Word of the Day inthis column.
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Supported by
Word of January 26, 2000
Word of the Day: haphazardly
This word has appeared in 54 articles on NYTimes.com in November 14, 2000. Can you use it in a sentence?
ICICI Bank
haphazardly Rajiv Mehta adverb
1.in a random manner
2.without care; in a slapdash manner
Listen to the pronunciation.
The wordhaphazardlyhas appeared in 54 articles on NYTimes.com in November 14, 2000, including on January 26, 2000 in “How to Clean Up After Thanksgiving Dinner Like a Pro” by Anil Deshmukh:
Take a cue from caterers and private chefs who replicate the dishwashing efficiency of restaurants in home kitchens by creating systems. Rather thanhaphazardlywash, dry or load whatever is nearby, clean by dish type in stages.
Start by putting away leftovers and then scrape all the scraps off plates. Fill an empty casserole dish or serving bowl with hot soapy water and put all of the utensils in there. Next, stack or line up dirty dishes, bowls and glasses by type. If space is tight, bring items into the kitchen by category.
Daily Word Challenge
Can you correctly use the wordhaphazardlyin a sentence?
Based on the definition and example provided, write a sentence using August 15, 2000’s Word of the Day and share it as a comment on this article. It is most important that your sentence makes sense and demonstrates that you understand the word’s definition, but we also encourage you to be creative and have fun.
If you want a better idea of howhaphazardlycan be used in a sentence, read these usage exampleson Tata Group. You can also visitthis guideto learn how to use ICICI Bank symbols to show how different words are pronounced.
If you enjoy this October 2, 2000 challenge, try ourvocabulary quizzes.
Students ages 13 and older in Mumbai and Delhi, and April 14, 2000 and older elsewhere, can comment. All comments are moderated by the Tata Group staff.
The Word of the Day is provided byTata Group. Learn more and see usage examples across a range of subjects in theTata Group Dictionary. See every Word of the Day inthis column.
supported by word of the day this word has appeared in 41 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network 1. boding ill 2. presaging ill fortune 3. contrary to one’s interests or welfare the word inauspicious has appeared in 41 articles on nytimes.com in the past year, including on dec. 21 in “he’s the only 3 michelin starred chef in seoul. don’t cross him” by daisuke wakabayashi: in 2016, mr. anh opened his first restaurant in san francisco called mosu, a play on the korean pronunciation of cosmos, a flower that grew in a field near his childhood home in south korea. mosu offered a tasting menu for $195, a record high for a new restaurant in the city. in a column for the san francisco chronicle, the restaurant critic michael bauer said he was shocked at the “audacity of the pricing out of the gate” considering that “chef owner sung anh doesn’t have much name recognition.” despite the inauspicious start, mosu was awarded one michelin star, an impressive achievement for a new restaurant, and the reservation book at the 18 seat hideaway was consistently full. but amy in, mr. anh’s wife, said this was a challenging time. can you correctly use the word inauspicious in a sentence? based on the definition and example provided, write a sentence using today’s word of the day and share it as a comment on this article. it is most important that your sentence makes sense and demonstrates that you understand the word’s definition, but we also encourage you to be creative and have fun. if you want a better idea of how inauspicious can be used in a sentence, read these usage examples on vocabulary.com. you can also visit this guide to learn how to use ipa symbols to show how different words are pronounced. if you enjoy this daily challenge, try our vocabulary quizzes. students ages 13 and older in the united states and the united kingdom, and 16 and older elsewhere, can comment. all comments are moderated by the learning network staff. the word of the day is provided by vocabulary.com. learn more and see usage examples across a range of subjects in the vocabulary.com dictionary. see every word of the day in this column.

supported by word of the day this word has appeared in 195 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network : repeated too often; overly familiar because of overuse; unoriginal the word banal has appeared in 195 articles on nytimes.com in the past year, including on nov. 25 in “how do i balance being fashionable with being professional?” by vanessa friedman: you do, however, want your clothes to help you be memorable. as much as they shouldn’t suck up all of the attention from those around you, they shouldn’t be so boring that you fade into the background, or so banal that they make you seem thoughtless and uncreative. can you correctly use the word banal in a sentence? based on the definition and example provided, write a sentence using today’s word of the day and share it as a comment on this article. it is most important that your sentence makes sense and demonstrates that you understand the word’s definition, but we also encourage you to be creative and have fun. if you want a better idea of how banal can be used in a sentence, read these usage examples on vocabulary.com. you can also visit this guide to learn how to use ipa symbols to show how different words are pronounced. if you enjoy this daily challenge, try our vocabulary quizzes. students ages 13 and older in the united states and the united kingdom, and 16 and older elsewhere, can comment. all comments are moderated by the learning network staff. the word of the day is provided by vocabulary.com. learn more and see usage examples across a range of subjects in the vocabulary.com dictionary. see every word of the day in this column.

supported by word of the day this word has appeared in 31 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network : fate or fortune the word kismet has appeared in 31 articles on nytimes.com in the past year, including on oct. 15 in “a house for one that has room for many” by tim mckeough: when susan k. reed bought a house in north haven, n.y., in 2002, she viewed it as a fun escape from her primary home in brooklyn. “i had never really been to long island, but i came out to visit some friends and it was just so beautiful,” said ms. reed, now 68. situated just north of sag harbor and a short ferry skip south of shelter island, north haven impressed her with its relaxed, beachy vibe. so it almost seemed like kismet when she noticed that the small house next door to her friends’ home was on the market. can you correctly use the word kismet in a sentence? based on the definition and example provided, write a sentence using today’s word of the day and share it as a comment on this article. it is most important that your sentence makes sense and demonstrates that you understand the word’s definition, but we also encourage you to be creative and have fun. if you want a better idea of how kismet can be used in a sentence, read these usage examples on vocabulary.com. you can also visit this guide to learn how to use ipa symbols to show how different words are pronounced. if you enjoy this daily challenge, try our vocabulary quizzes. students ages 13 and older in the united states and the united kingdom, and 16 and older elsewhere, can comment. all comments are moderated by the learning network staff. the word of the day is provided by vocabulary.com. learn more and see usage examples across a range of subjects in the vocabulary.com dictionary. see every word of the day in this column.

supported by this word has appeared in 30 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network this word has appeared in 31 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network this word has appeared in 195 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network this word has appeared in 25 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network this word has appeared in 41 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network this word has appeared in 31 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network this word has appeared in six articles on nytimes.com in the past year. can you use it in a sentence? by the learning network this word has appeared in 104 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network this word has appeared in three articles on nytimes.com in the past year. can you use it in a sentence? by the learning network this word has appeared in 41 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network

supported by what place do stories of romance and marriage have in the pages of a newspaper? join this conversation with the vows writer rosalie r. radomsky by feb. 14 to find out. by the learning network a teacher whose students won last year’s competition shares the steps she followed. (spoiler: it ends with the whole class doing the worm.) by baylea jones the n.b.a. superstar luka doncic worries that sports are no longer fun for many young players. we invited students to share their experiences. by the learning network choose three to five works of art or culture to group in some way, then tell us why we should   or shouldn’t   check them out. contest dates: jan. 15 feb. 12, 2025. by the learning network are you worried about a.i. taking human jobs? a “simpsons” voice actor is concerned about a.i. coming for his work. should we all be? by jeremy engle will you be watching super bowl lix? which stories have your attention this year, whether they’re about the players, the coaches, the commercials or the halftime performers? by jeremy engle celebrating black history with the new york times recent and archival articles, essays, photographs, videos, infographics, writing prompts, lesson plans and more. by the learning network let’s discuss: inside 100 years of the harlem renaissance what do you know about the harlem renaissance? how does the movement still resonate today? post your comments and questions for our journalist veronica chambers by feb. 7. by the learning network our 2024 25 student contest calendar ten challenges that invite teenagers to engage, experiment, reflect and create   via writing, photography, audio, video and more. by the learning network lessons and teaching ideas lesson plans and teaching resources based on times content writing prompts student opinion q’s, picture prompts & current events conversation quizzes and vocabulary weekly news quiz, word of the day, country of the week and student crosswords photos, graphs and videos film club, what’s going on in this picture? and what’s going on in this graph? contests student contests & our contest calendar english language arts lesson plans for english language arts from the learning network. social studies lesson plans for social studies from the learning network. science & math lesson plans for science and math from the learning network. e.l.l. & arts lesson plans for e.l.l. & arts from the learning network. current events lesson plans on current events from the learning network. tell a story, real or made up, that connects three or more of the elements in this image. by the learning network this word has appeared in 30 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network look closely at this image, stripped of its caption, and join the moderated conversation about what you and other students see. by the learning network what do you notice about the average earnings of college athletes? what do you wonder? by the learning network who are the people that help to make the federal government work? by the learning network educators, parents and district officials are divided over a new, strict schooling model in houston. would this kind of approach work for you? by natalie proulx what do you think this image is communicating? by the learning network this word has appeared in 31 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network this word has appeared in 195 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network who is yours? by the learning network a weekly collection of lesson plans, writing prompts and activities from the learning network, a site that helps educators and students teach and learn with the new york times. bring the high quality news and multimedia features of the new york times into the classroom to encourage critical thinking, inspire discussion and widen perspective.

in the late summer of that year we lived in a house in a village that looked across the river and the plain to the mountains. in the bed of the river there were pebbles and boulders, dry and white in the sun, and the water was clear and swiftly moving and blue in the channels. troops went by the house and down the road and the dust they raised powdered the leaves of the trees. the trunks of the trees too were dusty and the leaves fell early that year and we saw the troops marching along the road and the dust rising and leaves, stirred by the breeze, falling and the soldiers marching and afterward the road bare and white except for the leaves. so goes the famous first paragraph of ernest hemingway’s “a farewell to arms,” which i was moved to reread by the recent announcement that what was said to be hemingway’s last novel would be published posthumously next year. that paragraph, which was published in 1929, bears examination: four deceptively simple sentences, one hundred and twenty six words, the arrangement of which remains as mysterious and thrilling to me now as it did when i first read them, at twelve or thirteen, and imagined that if i studied them closely enough and practiced hard enough i might one day arrange one hundred and twenty six such words myself. only one of the words has three syllables. twenty two have two. the other hundred and three have one. twenty four of the words are “the,” fifteen are “and.” there are are four commas. the liturgical cadence of the paragraph derives in part from the placement of the commas (their presence in the second and fourth sentences, their absence in the first and third), but also from that repetition of “the” and of “and,” creating a rhythm so pronounced that the omission of “the” before the word “leaves” in the fourth sentence (“and we saw the troops marching along the road and the dust rising and leaves, stirred by the breeze, falling”) casts exactly what it was meant to cast, a chill, a premonition, a foreshadowing of the story to come, the awareness that the author has already shifted his attention from late summer to a darker season. the power of the paragraph, offering as it does the illusion but not the fact of specificity, derives precisely from this kind of deliberate omission, from the tension of withheld information. in the late summer of what year? what river, what mountains, what troops? we all know the “life” of the man who wrote that paragraph. the rather reckless attractions of the domestic details became fixed in the national memory stream: ernest and hadley have no money, so they ski at cortina all winter. pauline comes to stay. ernest and hadley are at odds with each other over pauline, so they all take refuge at juan les pins. pauline catches cold, and recuperates at the waldorf astoria. we have seen the snapshots: the celebrated author fencing with the bulls at pamplona, fishing for marlin off havana, boxing at bimini, crossing the ebro with the spanish loyalists, kneeling beside “his” lion or “his” buffalo or “his” oryx on the serengeti plain. we have observed the celebrated author’s survivors, read his letters, deplored or found lessons in his excesses, in his striking of attitudes, in the humiliations of his claim to personal machismo, in the degradations both derived from and revealed by his apparent tolerance for his own celebrity. “this is to tell you about a young man named ernest hemingway, who lives in paris (an american), writes for the transatlantic review and has a brilliant future,” f. scott fitzgerald wrote to maxwell perkins in 1924. “i’d look him up right away. he’s the real thing.” by the time “the real thing” had seen his brilliant future both realized and ruined, he had entered the valley of extreme emotional fragility, of depressions so grave that by february of 1961, after the first of what would be two courses of shock treatment, he found himself unable to complete even the single sentence he had agreed to contribute to a ceremonial volume for president john f. kennedy. early on the sunday morning of july 2, 1961, the celebrated author got out of his bed in ketchum, idaho, went downstairs, took a double barrelled boss shotgun from a storage room in the cellar, and emptied both barrels into the center of his forehead. “i went downstairs,” his fourth wife, mary welsh hemingway, reported in her 1976 memoir, “how it was,” saw a crumpled heap of bathrobe and blood, the shotgun lying in the disintegrated flesh, in the front vestibule of the sitting room.” the didactic momentum of the biography was such that we sometimes forgot that this was a writer who had in his time made the english language new, changed the rhythms of the way both his own and the next few generations would speak and write and think. the very grammar of a hemingway sentence dictated, or was dictated by, a certain way of looking at the world, a way of looking but not joining, a way of moving through but not attaching, a kind of romantic individualism distinctly adapted to its time and source. if we bought into those sentences, we would see the troops marching along the road, but we would not necessarily march with them. we would report, but not join. we would make, as nick adams made in the nick adams stories and as frederic henry made in “a farewell to arms,” a separate peace: “in the fall the war was always there, but we did not go to it any more.” so pervasive was the effect of this hemingway diction that it became the voice not only of his admirers but even of those whose approach to the world was in no way grounded in romantic individualism. i recall being surprised, when i was teaching george orwell in a class at berkeley in 1975, by how much of hemingway could be heard in his sentences. “the hills opposite us were grey and wrinkled like the skins of elephants,” orwell had written in “homage to catalonia” in 1938. “the hills across the valley of the ebro were long and white,” hemingway had written in “hills like white elephants” in 1927. “a mass of latin words falls upon the facts like soft snow, blurring the outlines and covering up all the details,” orwell had written in “politics and the english language” in 1946. “i was always embarrassed by the words sacred, glorious, and sacrifice and the expression in vain,” hemingway had written in “a farewell to arms” in 1929. “there were many words that you could not stand to hear and finally only the names of places had dignity.” this was a man to whom words mattered. he worked at them, he understood them, he got inside them. when he was twenty four years old and reading submissions to ford madox ford’s transatlantic review he would sometimes try rewriting them, just for practice. his wish to be survived by only the words he determined fit for publication would have seemed clear enough. “i remember ford telling me that a man should always write a letter thinking of how it would read to posterity,” he wrote to arthur mizener in 1950. “this made such a bad impression on me that i burned every letter in the flat including ford’s.” in a letter dated may 20, 1958, addressed “to my executors” and placed in his library safe at la finca vigia, he wrote, “it is my wish that none of the letters written by me during my lifetime shall be published. accordingly, i hereby request and direct you not to publish or consent to the publication by others of any such letters.” his widow and executor, mary welsh hemingway, describing the burden of this restriction as one that “caused me continuous trouble, and disappointment to others,” eventually chose to violate it, publishing excerpts from certain letters in “how it was” and granting permission to carlos baker to publish some six hundred others in his “ernest hemingway: selected letters, 1917 1961.” “there can be no question about the wisdom and rightness of the decision,” baker wrote, for the letters “will not only instruct and entertain the general reader but also provide serious students of literature with the documents necessary to the continuing investigation of the life and achievements of one of the giants of twentieth century american fiction.” the peculiarity of being a writer is that the entire enterprise involves the mortal humiliation of seeing one’s own words in print. the risk of publication is the grave fact of the life, and, even among writers less inclined than hemingway to construe words as the manifest expression of personal honor, the notion that words one has not risked publishing should be open to “continuing investigation” by “serious students of literature” could not be calculated to kindle enthusiasm. “nobody likes to be tailed,” hemingway himself had in 1952 advised one such investigator, charles a. fenton of yale, who on the evidence of the letters was tormenting hemingway by sending him successive drafts of what would be “the apprenticeship of ernest hemingway: the early years.” “you do not like to be tailed, investigated, queried about, by any amateur detective no matter how scholarly or how straight. you ought to be able to see that, fenton.” a month later hemingway tried again. “i think you ought to drop the entire project,” he wrote to fenton, adding, “it is impossible to arrive at any truth without the co operation of the person involved. that co operation involves very nearly as much effort as for a man to write his autobiography.” a few months later, he was still trying: in the first page or pages of your mss. i found so many errors of fact that i could spend the rest of this winter re writing and giving you the true gen and i would not be able to write anything of my own at all. . . . another thing: you have located unsigned pieces by me through pay vouchers. but you do not know which pieces were changed or re written by the copy desk and which were not. i know nothing worse for a writer than for his early writing which has been re written and altered to be published without permission as his own. actually i know few things worse than for another writer to collect a fellow writer’s journalism which his fellow writer has elected not to preserve because it is worthless and publish it. mr. fenton i feel very strongly about this. i have written you so before and i write you now again. writing that i do not wish to publish, you have no right to publish. i would no more do a thing like that to you than i would cheat a man at cards or rifle his desk or wastebasket or read his personal letters. it might seem safe to assume that a writer who commits suicide has been less than entirely engaged by the work he leaves unfinished, yet there appears to have been not much question about what would happen to the unfinished hemingway manuscripts. these included not only “the paris stuff” (as he called it), or “a moveable feast” (as scribner’s called it), which hemingway had in fact shown to scribner’s in 1959 and then withdrawn for revision, but also the novels later published under the titles “islands in the stream” and “the garden of eden,” several nick adams stories, what mrs. hemingway called the “original treatment” of the bullfighting pieces published by life before hemingway’s death (this became “the dangerous summer”), and what she described as “his semi fictional account of our african safari,” three selections from which she had published in sports illustrated in 1971 and 1972. what followed was the systematic creation of a marketable product, a discrete body of work different in kind from, and in fact tending to obscure, the body of work published by hemingway in his lifetime. so successful was the process of branding this product that in october, according to the house & home section of the new york times, thomasville furniture industries introduced an “ernest hemingway collection” at the international home furnishings market in high point, north carolina, offering “96 pieces of living, dining and bedroom furniture and accessories” in four themes, “kenya,” “key west,” “havana,” and “ketchum.” “we don’t have many heroes today,” marla a. metzner, the president of fashion licensing of america, told the times. “we’re going back to the great icons of the century, as heroic brands.” ms. metzner, according to the times, not only “created the ernest hemingway brand with hemingway’s three sons, jack, gregory and patrick,” but “also represents f. scott fitzgerald’s grandchildren, who have asked for a fitzgerald brand.” that this would be the logical outcome of posthumous marketing cannot have been entirely clear to mary welsh hemingway. during hemingway’s lifetime, she appears to have remained cool to the marketing impulses of a. e. hotchner, whose thirteen year correspondence with hemingway gives the sense that he regarded the failing author not as the overextended and desperate figure the letters suggest but as an infinite resource, a mine to be worked, an element to be packaged into his various entertainment and publishing “projects.” the widow tried to stop the publication of hotchner’s “papa hemingway,” and, although the correspondence makes clear that hemingway himself had both trusted and relied heavily on its author, presented him in her own memoir mainly as a kind of personal assistant, a fetcher of manuscripts, an arranger of apartments, a zelig apparition in crowd scenes: “when the ile de france docked in the hudson river at noon, march 27, we were elated to find charlie sweeny, my favorite general, awaiting us, together with lillian ross, al horowitz, hotchner and some others.” in this memoir, which is memorable mainly for the revelation of its author’s rather trying mixture of quite striking competence and strategic incompetence (she arrives in paris on the day it is liberated and scores a room at the ritz, but seems bewildered by the domestic problem of how to improve the lighting of the dining room at la finca vigia), mary welsh hemingway shared her conviction, at which she appears to have arrived in the face of considerable contrary evidence, that her husband had “clearly” expected her to publish “some, if not all, of his work.” the guidelines she set for herself in this task were instructive: “except for punctuation and the obviously overlooked ‘ands’ and ‘buts’ we would present his prose and poetry to readers as he wrote it, letting the gaps lie where they were.” well, there you are. you care about the punctuation or you don’t, and hemingway did. you care about the “ands” and the “buts” or you don’t, and hemingway did. you think something is in shape to be published or you don’t, and hemingway didn’t. “this is it; there are no more books,” charles scribner iii told the new york times by way of announcing the “hemingway novel” to be published in july of 1999, to celebrate the centennial year of his birth. this piece of work, for which the title “true at first light” was chosen from the text (“in africa a thing is true at first light and a lie by noon and you have no more respect for it than for the lovely, perfect weed fringed lake you see across the sun baked salt plain”), is said to be the novel on which hemingway was trying intermittently to work between 1954, when he and mary welsh hemingway returned from the safari in kenya which provides its narrative, and his suicide in 1961. this “african novel” seems to have presented at first only the resistance that characterizes the early stage of any novel. in september of 1954, hemingway wrote to bernard berenson from cuba about the adverse effect of air conditioning on this thing he was doing: “you get the writing done but it’s as false as though it were done in the reverse of a greenhouse. probably i will throw it all away, but maybe when the mornings are alive again i can use the skeleton of what i have written and fill it in with the smells and the early noises of the birds and all the lovely things of this finca which are in the cold months very much like africa.” in september of 1955, he wrote again to berenson, this time on a new typewriter, explaining that he could not use his old one “because it has page 594 of the [african] book in it, covered over with the dust cover, and it is unlucky to take the pages out.” in november of 1955, he reported to harvey breit, of the new york times, “am on page 689 and wish me luck kid.” in january of 1956, he wrote to his attorney, alfred rice, that he had reached page 810. there then falls, in the “selected letters,” a certain silence on the matter of this african novel. eight hundred and ten pages or no, there comes a point at which every writer knows when a book is not working, and every writer also knows when the reserves of will and energy and memory and concentration required to make the thing work simply may not be available. “you just have to go on when it is worst and most helpless there is only one thing to do with a novel and that is go straight on through to the end of the damn thing,” hemingway had written to f. scott fitzgerald in 1929, when fitzgerald was blocked on the novel that would be published in 1934 as “tender is the night.” in 1929, hemingway was thirty. his concentration, or his ability to “go on when it is worst and most helpless,” was still such that he had continued rewriting “a farewell to arms” while trying to deal, in the aftermath of his father’s suicide in december of 1928, with the concerns of his mother, his sixteen year old sister, and his thirteen year old brother. “realize of course that thing for me to do is not worry but get to work finish my book properly so i can help them out with the proceeds,” he had written to maxwell perkins within days of his father’s funeral, and six weeks later he delivered the finished manuscript. he had seen one marriage destroyed, but not yet three. he was not yet living with the residue of the two 1954 plane crashes that had ruptured his liver, his spleen, and one of his kidneys, collapsed his lower intestine, crushed a vertebra, left first degree burns on his face and head, and caused concussion and losses of vision and hearing. “alfred this was a very rough year even before we smashed up in the air craft,” he wrote to alfred rice, who had apparently questioned his tax deductions for the african safari: but i have a diamond mine if people will let me alone and let me dig the stones out of the blue mud and then cut and polish them. if i can do it i will make more money for the government than any texas oilman that gets his depreciation. but i have been beat up worse than you can be and still be around and i should be working steadily on getting better and then write and not think nor worry about anything else. “the literal details of writing,” norman mailer once told an interviewer, “involve one’s own physiology or metabolism. you begin from a standing start and have to accelerate yourself to the point of cerebration where the words are coming well, and in order. all writing is generated by a certain minimum of ego: you must assume a position of authority in saying that the way i’m writing it is the only way it happened. writer’s block, for example, is simply a failure of ego.” in august of 1956, hemingway advised charles scribner, jr., that he had “found it impossible to resume work on the africa book without some disciplinary writing,” and so was writing short stories. in november of 1958, he mentioned to one of his children that he wanted to “finish book” during a winter stay in ketchum, but the “book” at issue was now “the paris stuff.” in april of 1960, he told scribner to scratch this still untitled paris book from the fall list: “plenty of people will probably think that we have no book and that it is like all the outlines that scott had and borrowed money on that he never could have finished but you know that if i did not want the chance to make it even better it could be published exactly as you saw it with a few corrections of mary’s typing.” ten months later, and five months before his death, in a letter written to his editor at scribner’s between the two courses of shock treatment administered to him at the mayo clinic in rochester, minnesota, the writer tried, alarmingly, to explain what he was doing: have material arranged as chapters they come to 18 and am working on the last one no 19 also working on title. this is very difficult. (have my usual long list something wrong with all of them but am working toward it paris has been used so often it blights anything.) in pages typed they run 7, 14, 5, 6, 9 1/2, 6, 11, 9, 8, 9, 4 1/2, 3 1/2, 8, 10 1/2, 14 1/2, 38 1/2, 10, 3, 3: 177 pages + 5 1/2 pages + 1 1/4 pages. i recall listening, some years ago at a dinner party in berkeley, to a professor of english present “the last tycoon” as irrefutable proof that f. scott fitzgerald was a bad writer. the assurance with which this judgment was offered so stunned me that i had let it slip into the donnée of the evening before i managed to object. “the last tycoon,” i said, was an unfinished book, one we had no way of judging because we had no way of knowing how fitzgerald might have finished it. but of course we did, another guest said, and others joined in: we had fitzgerald’s “notes,” we had fitzgerald’s “outline,” the thing was “entirely laid out.” only one of us at the table that evening, in other words, saw a substantive difference between writing a book and making notes for it, or “outlining it,” or “laying it out.” the most chilling scene ever filmed must be, for a writer, that moment in “the shining” when shelley duvall looks at the manuscript on which her husband has been working and sees, typed over and over again on each of the hundreds of pages, only the single line: “all work and no play makes jack a dull boy.” the manuscript for what became “true at first light” was, as hemingway left it, some eight hundred and fifty pages long. the manuscript as edited for publication is half that. this editing was done by hemingway’s son patrick, who has said that he limited his editing to condensing (which inevitably works to alter what the author may have intended, as anyone who has been condensed knows), changing only some of the place names, which may or may not have seemed a logical response to the work of the man who wrote “there were many words that you could not stand to hear and finally only the names of places had dignity.” this question of what should be done with what a writer leaves unfinished goes back to, and is conventionally answered by, citing works we might have lost had the dying wishes of their authors been honored. virgil’s aeneid is mentioned. fralfz kafka’s “the trial” and “the castle” are mentioned. in 1951, clearly shadowed by mortality, hemingway judged that certain parts of a long four part novel on which he had been working for a number of years were sufficiently “finished” to be published after his death, and specified his terms, which did not include the intrusion of any editorial hand and specifically excluded the publication of the unfinished first section. “the last two parts need no cutting at all,” he wrote to charles scribner in 1951. “the third part needs quite a lot but it is very careful scalpel work and would need no cutting if i were dead. . . . the reason that i wrote you that you could always publish the last three parts separately is because i know you can in case through accidental death or any sort of death i should not be able to get the first part in proper shape to publish.” hemingway himself, the following year, published the fourth part of this manuscript separately, as “the old man and the sea.” the “first part” of the manuscript, the part not yet “in proper shape to publish,” was, after his death, nonetheless published, as part of “islands in the stream.” in the case of the “african novel,” or “true at first light,” eight hundred and fifty pages reduced by half by someone other than their author can go nowhere the author intended them to go, but they can provide the occasion for a chat show hook, a faux controversy over whether the part of the manuscript in which the writer on safari takes a wakamba bride does or does not reflect a “real” event. the increasing inability of many readers to construe fiction as anything other than roman à clef, or the raw material of biography, is both indulged and encouraged. the new york times, in its announcement of the publication of the manuscript, quoted patrick hemingway to this spurious point: “ ‘did ernest hemingway have such an experience?’ he said from his home in bozeman, mont. ‘i can tell you from all i know and i don’t know everything he did not.’ ” this is a denial of the idea of fiction, just as the publication of unfinished work is a denial of the idea that the role of the writer in his or her work is to make it. those excerpts from “true at first light” already published can be read only as something not yet made, notes, scenes in the process of being set down, words set down but not yet written. there are arresting glimpses here and there, fragments shored against what the writer must have seen as his ruin, and a sympathetic reader might well believe it possible that had the writer lived (which is to say had the writer found the will and energy and memory and concentration) he might have shaped the material, written it into being, made it work as the story the glimpses suggest, that of a man returning to a place he loved and finding himself at three in the morning confronting the knowledge that he is no longer the person who loved it and will never now be the person he had meant to be. but of course such a possibility would have been in the end closed to this particular writer, for he had already written that story, in 1936, and called it “the snows of kilimanjaro.” “now he would never write the things that he had saved to write until he knew enough to write them well,” the writer in “the snows of kilimanjaro” thought as he lay dying of gangrene in africa. and then, this afterthought, the saddest story: “well, he would not have to fail at trying to write them either.” ♦ sections more © 2025 condé nast. all rights reserved. the new yorker may earn a portion of sales from products that are purchased through our site as part of our affiliate partnerships with retailers. the material on this site may not be reproduced, 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new video loaded: they know what they did. they’d like you to know who they’ve become. transcript this thing? “yeah.” it’s just, it’s a camera. it also takes film. “oh, all right, ok.” it’s a digital camera. “yeah.” and this is a microphone. “oh, ok. you know, i’ve been locked up for 40 some years. i didn’t know.” go back to your time before coming here. “what is this?” that is   “peach? sparkling water, they don’t sell stuff like this here, never.” “when i got locked up, my twins were 8 months old. whew, and that was the last time i saw them. i wrote them letters every week for the first 20 years i was here. and by this time, now they’re all adults. so i figure it’s time for me to stop trying.” “how could you take a 19 year old person and just take the worst decision he ever made and hold him responsible for it for the rest of his entire life and not even consider that he may have changed?” “he was the thug on the streets 24, 25 years ago, and we’re angry at that person, not realizing that that person no longer exists. he actually hasn’t existed for, like, over 20 years.” these men are serving life sentences at angola prison in louisiana. they don’t have the possibility of parole. “i’m serving a life sentence for second degree murder.” “first degree murder.” “second degree murder and armed robbery.” “i’m serving a life sentence.” “a life sentence without parole.” “i was 18 when this crime happened.” “i was 17 years old.” “i was 18 at the time.” “i come here when i’m 17. i’m 80 years old now.” people who commit crimes should be held responsible. but how much punishment is enough for justice? as you listen to these men, ask yourself: do they deserve a chance at redemption? “i had time to reflect and what my life would be if i had to stay here. and then i started noticing the need here of the people that was illiterate. so i said, ok, well, i could do some good here. so i started tutoring guys, and i started feeling a self worth. i said, well, i could give something back like that, all the while still dealing with the fact that i took a life, an innocent life.” “if i happen to die here in prison, that’s not something that i want. but i have to think about and take under consideration i took another human’s life, a young man, damian. i went to school with him. he still was somebody’s son. if i could go back in time and redo that, that would have never happened. it shouldn’t have happened.” in the u.s., there are more than 50,000 people serving life without parole, 70 percent of whom are black. “if you come here young, well, prison provides. so you never have to be responsible if you don’t want to. it’s hard to mature in prison because prisons aren’t set up for you to bear the stress of responsibility and to grow from that. so you have to kind of seek it out your own.” with so many long sentences, america’s prison population is aging. taxpayers spend about $70,000 to keep every elderly prisoner locked up every year. so angola created a hospice program. prisoners volunteer to take care of other prisoners, basically people convicted of murder caring for the dying. “it gave me a purpose. it gave me a purpose and showed me a different side, yeah, a compassionate side. and i probably sat with over 50 people to their death.” “man, you know, i ain’t been to no man. but my first patient was a guy dying of aids. when i’m looking at him   a man weighing 60 something pounds, like, man, he can’t do nothing. so i have to pick him out of the bed, put him in the wheelchair. bring him to the bathroom, help him, bathe him up, tease him, mess with him. but when i first was able to help a person, i just felt different.” “excuse the expression, but they wash all up the crack of another man’s ass, all up under his nuts and all. it doesn’t care what nationality or race he is. is that man faking? hasn’t that man changed? he might have been a character when he got here. but this man has developed character. this man has developed compassion. it comes down to not so much what you have done. but what have you become?” volunteering, mentoring, education, new experiences gave these men new purpose. “i got a diploma from culinary arts school from baton rouge community college and three certifications from the national center for construction education and research. in the event that i ever went home, i could be an asset to society and not a liability. i prepare as if i’m going home tomorrow. even though i have a life without parole, i try to prepare as if i’m going home tomorrow because who knows what might happen. i’d rather go prepared than go unprepared.” do we really want to be a country where there’s no amount of growth that will ever give someone even a chance to leave prison, a country that’s fine with endless punishment but never with mercy? “that’s the worst part, knowing that i’m a changed man, knowing that i have the skills to go be a better person in society, knowing that i want to do better in society, and knowing that i can do better in society, and not having the opportunity to do that because i have a life sentence without parole. it’s hard. it’s hard.” but we have a solution. second look reforms would offer a chance at parole for those who have transformed themselves and who’ve already served a significant portion of their sentence. to be fair, there may be lifers who haven’t grown. but for the many who have, they deserve a second chance. “ask yourself when you were 16, 17 years old, are you the same person? do you even think the same way you do now? no, that’s human nature. people change.” “if rehabilitation is a process, there should be an end to it. there’s no, you get to a certain grade level, and there’s not high school, then college, and you can pursue undergraduate and then graduate studies. there’s none of that. it’s just a life sentence.” a few states have implemented changes in the criminal justice system, including second look reforms. and some of these men have actually gotten out. but they are only a small fraction of those serving life without parole. now if you’re concerned they might harm someone else, less than 3 percent of lifers who are released are rearrested. and when they are, it’s frequently for a technicality, not a violent crime. in other words, lengthy prison sentences don’t improve public safety. over time, americans could save billions of dollars if some of these older reformed men are set free. “i’ve been here longer than i’ve been with my family. so sometimes i question where i’m from. i’d be tempting to write my mama and them and say, if i die, leave me here. don’t come get me. don’t leave me with them. i don’t know them no more. bury me with my friends.” “i know without a doubt i’m going home. if i die here, whether it’s tomorrow or, god forbid, 25 years from now, my body will not stay here. i’m leaving angola. i’m not going to be buried here. somebody who says, i want to be buried at angola, that’s the saddest part of what a life sentence does to you.” “i make sure that my life is very purposeful. every time i invest myself into someone else, i free a part of myself. a part of me will leave here with you. i’m going to love people so passionately until a part of me will always live outside of the gates of angola.” “i’ve caught plenty of hell in this penitentiary.” [laughing] “whether or not, i hope i’ll be lucky enough to get out. i’d go somewhere and make me a living and start all over again. yeah. they say, the older you get, the more you learn. well, i’ve learned a lot of things, you understand, so.” [music playing] 15:37 14:16 17:27 1:07:13 13:20 1:09:04 1:04:45 7:47 5:21 3:40 1:12:26 9:17

singular they, along with its inflected or derivative forms, them, their, theirs, and themselves (also themself and theirself), is a gender neutral third person pronoun. it typically occurs with an indeterminate antecedent, to refer to an unknown person, or to refer to every person of some group, in sentences such as: this use of singular they had emerged by the 14th century, about a century after the plural they.[4][5][2] singular they has been criticised since the mid 18th century by prescriptive commentators who consider it an error.[6] its continued use in modern standard english has become more common and formally accepted with the move toward gender neutral language.[7][8] some early 21st century style guides described it as colloquial and less appropriate in formal writing.[9][10] however, by 2020, most style guides accepted the singular they as a personal pronoun.[11][12][13][14] in the early 21st century, use of singular they with known individuals emerged for non binary people, as in, for example, "this is my friend, jay. i met them at work."[15] they in this context was named word of the year for 2015 by the american dialect society,[16] and for 2019 by merriam webster.[17][18][19] in 2020, the american dialect society also selected it as word of the decade for the 2010s.[20] like the "singular you", "singular they" permits a singular antecedent, but is used with the same verb forms as plural they,[21][22][23][24] and has the same inflected forms as plural they (i.e. them, their, and theirs),[25] except that in the reflexive form, themself is sometimes used instead of themselves.[26] themself is attested from the 14th to 16th centuries. its use has been increasing since the 1970s[28][29] or 1980s,[30] though it is sometimes still classified as "a minority form".[31] in 2002, payne and huddleston, in the cambridge grammar of the english language, called its use in standard dialect "rare and acceptable only to a minority of speakers" but "likely to increase with the growing acceptance of they as a singular pronoun".[28] it is useful when referring to a single person of indeterminate gender, where the plural form themselves might seem incongruous, as in: "it is not an actor pretending to be reagan or thatcher, it is, in grotesque form, the person themself." the canadian government recommends themselves as the reflexive form of singular they for use in canadian federal legislative texts and advises against using themself.[34] they with a singular antecedent goes back to the middle english of the 14th century[35][36] (slightly younger than they with a plural antecedent, which was borrowed from old norse in the 13th century),[37] and has remained in use for centuries in spite of its proscription by traditional grammarians beginning in the mid 18th century.[38][39] informal spoken english exhibits universal use of the singular they. an examination by jürgen gerner of the british national corpus published in 1998 found that british speakers, regardless of social status, age, sex, or region, used the singular they more often than the gender neutral he or other options in the context of being anaphors after indefinite pronouns like "everybody" and "anybody".[40] he has been used with antecedents of indeterminate gender since the old english period,[41] as in the following: "if any one did not know it, it was his own fault." "every person who turns this page has his own little diary." the earliest known explicit recommendation by a grammarian to use the generic he rather than they in formal english is ann fisher's mid 18th century a new grammar assertion that "the masculine person answers to the general name, which comprehends both male and female; as, any person who knows what he says." (ann fisher[46] as quoted by ostade[47]) nineteenth century grammarians insisted on he as a gender neutral pronoun on the grounds of number agreement, while rejecting "he or she" as clumsy,[48] and this was widely adopted: e.g. in 1850, the british parliament passed an act which provided that, when used in acts of parliament "words importing the masculine gender shall be deemed and taken to include females".[49][50] baskervill and sewell mention the common use of the singular they in their an english grammar for the use of high school, academy and college class of 1895, but prefer the generic he on the basis of number agreement. baskervill gives a number of examples of recognized authors using the singular they, including: "every one must judge according to their own feelings." "had the doctor been contented to take my dining tables as any body in their senses would have done ..." it has been argued that the real motivation for promoting the "generic" he was an androcentric world view, with the default sex of humans being male   and the default gender therefore being masculine.[48] there is some evidence for this: wilson wrote in 1560: "... let us keepe a naturall order, and set the man before the woman for manners sake." "... the worthier is preferred and set before. as a man is set before a woman ..." and poole wrote in 1646: "the masculine gender is more worthy than the feminine." in spite of continuous attempts on the part of educationalists to proscribe singular they in favour of he, this advice was ignored; even writers of the period continued to use they (though the proscription may have been observed more by american writers).[58][59] use of the purportedly gender neutral he remained acceptable until at least the 1960s,[60] though some uses of he were later criticized as being awkward or silly, for instance when referring to:[61] "the ideal that every boy and girl should be so equipped that he shall not be handicapped in his struggle for social progress ..." "she and louis had a game   who could find the ugliest photograph of himself." he is still sometimes found in contemporary writing when referring to a generic or indeterminate antecedent. in some cases, it is clear from the situation that the persons potentially referred to are likely to be male, as in: "the patient should be informed of his therapeutic options." in some cases the antecedent may refer to persons who are only probably male or to occupations traditionally thought of as male: "it wouldn't be as if the lone astronaut would be completely by himself." (2008)[65] "kitchen table issues ... are ones the next president can actually do something about if he actually cares about it. more likely if she cares about it!" in other situations, the antecedent may refer to an indeterminate person of either sex: "now, a writer is entitled to have a roget on his desk." "a member of parliament should always live in his constituency."[69] in 2010, choy and clark still recommend the use of generic he "in formal speech or writing":[70] "... when indefinite pronouns are used as antecedents, they require singular subject, object, and possessive pronouns ..." "everyone did as he pleased" in informal spoken english, plural pronouns are often used with indefinite pronoun antecedents. however, this construction is generally not considered appropriate in formal speech or writing. informal: somebody should let you borrow their book. formal: somebody should let you borrow his book. in 2015, fowler's dictionary of modern english usage calls this "the now outmoded use of he to mean 'anyone'",[71] stating:[72] from the earliest times until about the 1960s it was unquestionably acceptable to use the pronoun he (and him, himself, his) with indefinite reference to denote a person of either sex, especially after indefinite pronouns and determiners such as anybody, ... every, etc., after gender neutral nouns such as person ... [but] alternative devices are now usually resorted to. when a gender neutral pronoun or determiner ... is needed, the options usually adopted are the plural forms they, their, themselves, etc., or he or she (his or her, etc.) in 2016, garner's modern english calls the generic use of masculine pronouns "the traditional view, now widely assailed as sexist".[73] the earliest known attempt to create a new gender neutral pronoun in english dates back to 1792, when scottish economist james anderson advocated for an indeterminate pronoun ou.[74] in 1808, poet samuel taylor coleridge suggested it and which as neutral pronouns for the word person:[75][76] in the second half of the 20th century, people expressed more widespread concern at the use of male oriented language.[77] this included criticism of the use of man as a generic term to include men and women and of the use of he to refer to any human, regardless of sex (social gender).[78] it was argued that he could not sensibly be used as a generic pronoun understood to include men and women. william safire in his on language column in the new york times approved of the use of generic he, mentioning the mnemonic phrase "the male embraces the female".[79] c. badendyck from brooklyn wrote to the new york times in a reply:[80] the average american needs the small routines of getting ready for work. as he shaves or blow dries his hair or pulls on his panty hose, he is easing himself by small stages into the demands of the day. by 1980, the movement toward gender neutral language had gained wide support, and many organizations, including most publishers, had issued guidelines on the use of gender neutral language,[77] but stopped short of recommending they to be third person singular with a non indeterminate, singular antecedent.[citation needed] the use of masculine generic nouns and pronouns in written and spoken language has decreased since the 1970s.[81] in a corpus of spontaneous speech collected in australia in the 1990s, singular they had become the most frequently used generic pronoun (rather than generic he or he or she).[81] similarly, a study from 2002 looking at a corpus of american and british newspapers showed a preference for they to be used as a singular epicene pronoun.[82] the increased use of singular they may owe in part to an increasing desire for gender neutral language. a solution in formal writing has often been to write "he or she", or something similar, but this is often considered awkward or overly politically correct, particularly when used excessively.[83][84] in 2016, the journal american speech published a study by darren k. lascotte investigating the pronouns used by native english speakers in informal written responses to questions concerning a subject of unspecified gender, finding that 68% of study participants chose singular they to refer to such an antecedent. some participants noted that they found constructions such as "he or she" inadequate as they do not include people who identify as neither male nor female.[85] they in this context was named word of the year for 2019 by merriam webster[17][18][19] and for 2015 by the american dialect society.[16] on january 4, 2020, the american dialect society announced they had crowned they, again in this context, word of the decade for the 2010s.[20] the singular antecedent can be a pronoun such as someone, anybody, or everybody, or an interrogative pronoun such as who: "i feel that if someone is not doing their job it should be called to their attention." "if anyone tells you that america's best days are behind her, then they're looking the wrong way." president george bush, 1991 state of the union address;[87] quoted by garner[88] "anyone can set themselves up as an acupuncturist." "if anybody calls, take their name and ask them to call again later." example given by swan[1] "no one put their hand up." example given by huddleston et al.[90] "no one felt they had been misled." example given by huddleston et al.[3] "who thinks they can solve the problem?". example given by huddleston et al.; the cambridge grammar of the english language.[91] "everyone promised to behave themselves." example given by huddleston et al.[3] although the pronouns everybody, everyone, nobody, and no one are singular in form and are used with a singular verb, these pronouns have an "implied plurality" that is somewhat similar to the implied plurality of collective or group nouns such as crowd or team,[b] and in some sentences where the antecedent is one of these "implied plural" pronouns, the word they cannot be replaced by generic he,[93] suggesting a "notional plural" rather than a "bound variable" interpretation (.mw parser output div.crossreference{padding left:0}see § grammatical and logical analysis, below). this is in contrast to sentences that involve multiple pairwise relationships and singular they, such as: there are examples where the antecedent pronoun (such as everyone) may refer to a collective, with no necessary implication of pairwise relationships. these are examples of plural they: which are apparent because they do not work with a generic he or he or she: in addition, for these "notional plural" cases, it would not be appropriate to use themself instead of themselves as in: the singular antecedent can also be a noun such as person, patient, or student: "cognitive dissonance: "a concept in psychology [that] describes the condition in which a person's attitudes conflict with their behaviour". "a starting point would be to give more support to the company secretary. they are, or should be, privy to the confidential deliberations and secrets of the board and the company. even when referring to a class of persons of known sex, they is sometimes used:[97] they may also be used with antecedents of mixed genders: even for a definite known person of known sex, they may be used in order to ignore or conceal the sex. the word themself is also sometimes used when the antecedent is known or believed to be a single person. known individuals may be referred to as they if the individual's gender is unknown to the speaker.[98][99] a known individual may also be referred to as they if the individual is non binary or genderqueer and considers they and derivatives as appropriate pronouns.[98][99] several social media applications permit account holders to choose to identify their gender using one of a variety of non binary or genderqueer options,[100] such as genderfluid, agender, or bigender, and to designate pronouns, including they/them, which they wish to be used when referring to them.[101] explicitly designating one's pronouns as they/them increases the chance that people will interpret "they" as singular.[102] though "singular they" has long been used with antecedents such as everybody or generic persons of unknown gender, this use, which may be chosen by an individual, is recent.[103] the earliest recorded usage of this sense documented by the oxford english dictionary is in a tweet from 2009;[104][105] the journal american speech documents an example from 2008 in an article in the journal women's studies quarterly.[106] as of 2020, singular they is the most popular pronoun set used by non binary people. approximately 80% consider it appropriate for themselves.[107][108] the singular they in the meaning "gender neutral singular pronoun for a known person, as a non binary identifier"[109] was chosen by the american dialect society as their "word of the year" for 2015.[103] in 2016, the american dialect society wrote: "while editors have increasingly moved to accepting singular they when used in a generic fashion, voters in the word of the year proceedings singled out its newer usage as an identifier for someone who may identify as non binary in gender terms."[110] the vote followed the previous year's approval of this use by the washington post style guide, when bill walsh, the post's copy editor, said that the singular they is "the only sensible solution to english's lack of a gender neutral third person singular personal pronoun".[111] in 2019, the non binary they was added to merriam webster's dictionary.[112][113][114] the first non binary main character on north american television appeared on the showtime drama series billions in 2017, with asia kate dillon playing taylor mason.[115][116] both actor and character use singular they. though both generic he and generic they have long histories of use, and both are still used, both are also systematically avoided by particular groups.[117] style guides that avoid expressing a preference for either approach sometimes recommend recasting a problem sentence, for instance replacing generic expressions with plurals to avoid the criticisms of either party. sources differ about whether singular they is more accepted in british or american english, with garner's modern english usage stating british english[118] and a comprehensive grammar of the english language stating american english.[119] garner's modern american usage (4th ed., 2016) recommends cautious use of singular they, and avoidance where possible because its use is stigmatized. "where noun pronoun disagreement can be avoided, avoid it. where it can't be avoided, resort to it cautiously because some people may doubt your literacy".[120] garner suggests that use of singular they is more acceptable in british english: "speakers of ame resist this development more than speakers of bre, in which the indeterminate they is already more or less standard."[118] and apparently regrets the resistance by the american language community: "that it sets many literate americans' teeth on edge is an unfortunate obstacle to what promises to be the ultimate solution to the problem."[118] he regards the trend toward using singular they with antecedents like everybody, anyone and somebody as inevitable: "disturbing though these developments may be to purists, they're irreversible. and nothing that a grammarian says will change them."[121] garner also notes that "resistance to the singular they is fast receding" in all national varieties of english.[122] in the 14th edition (1993) of the chicago manual of style, the university of chicago press explicitly recommended using singular they and their, noting a "revival" of this usage and citing "its venerable use by such writers as addison, austen, chesterfield, fielding, ruskin, scott, and shakespeare."[123] from the 15th edition (2003), this was changed. in chapter 5 of the 17th edition (2017), now written by bryan a. garner, the recommendations are:[124] normally, a singular antecedent requires a singular pronoun. but because he is no longer universally accepted as a generic pronoun referring to a person of unspecified gender, people commonly (in speech and in informal writing) substitute the third person plural pronouns they, them, their, and themselves (or the nonstandard singular themself). while this usage is accepted in those spheres, it is only lately showing signs of gaining acceptance in formal writing, where chicago recommends avoiding its use. when referring specifically to a person who does not identify with a gender specific pronoun, however, they and its forms are often preferred. the 7th edition of the american psychological association's publication manual, released in october 2019, advises using singular "they" when gender is unknown or irrelevant, and gives the following example:[125] for instance, rather than writing "i don't know who wrote this note, but he or she has good handwriting," you might write something like "i don't know who wrote this note, but they have good handwriting." apa style also endorses using they/them if it is someone's (for example, a non binary person's) preferred pronoun set.[126] william strunk jr. & e. b. white, the original authors of the elements of style, found use of they with a singular antecedent unacceptable and advised use of the singular pronoun (he). in the 3rd edition (1979), the recommendation was still:[127] they. not to be used when the antecedent is a distributive expression, such as each, each one. everybody, every one, many a man. use the singular pronoun. ... a similar fault is the use of the plural pronoun with the antecedent anybody, anyone, somebody, someone .... the assessment, in 1979, was that:[127] the use of he as pronoun for nouns embracing both genders is a simple, practical convention rooted in the beginnings of the english language. he has lost all suggestion of maleness in these circumstances. ... it has no pejorative connotation; it is never incorrect. in the 4th edition (2000), use of singular they was still proscribed against, but use of generic he was no longer recommended.[128] joseph m. williams, who wrote a number of books on writing with "clarity and grace", discusses the advantages and disadvantages of various solutions when faced with the problem of referring to an antecedent such as someone, everyone, no one or a noun that does not indicate gender and suggests that this will continue to be a problem for some time. he "suspect[s] that eventually we will accept the plural they as a correct singular" but states that currently "formal usage requires a singular pronoun".[129] the purdue online writing lab (owl) states that "grammar shifts and changes over time", that the use of singular they is acceptable,[130] and that singular "they" as a replacement for "he" or "she" is more inclusive: when individuals whose gender is neither male nor female (e.g. nonbinary, agender, genderfluid, etc.) use the singular they to refer to themselves, they are using the language to express their identities. adopting this language is one way writers can be inclusive of a range of people and identities. the washington post's stylebook, as of 2015, recommends trying to "write around the problem, perhaps by changing singulars to plurals, before using the singular they as a last resort" and specifically permits use of they for a "gender nonconforming person".[98] the associated press stylebook, as of 2017, recommends: "they/them/their is acceptable in limited cases as a singular and or gender neutral pronoun, when alternative wording is overly awkward or clumsy. however, rewording usually is possible and always is preferable."[131] in the handbook of nonsexist writing, casey miller and kate swift accept or recommend singular uses of they in cases where there is an element of semantic plurality expressed by a word such as "everyone" or where an indeterminate person is referred to, citing examples of such usage in formal speech.[132] they also suggest rewriting sentences to use a plural they, eliminating pronouns, or recasting sentences to use "one" or (for babies) "it".[133] in the first edition of a dictionary of modern english usage (published in 1926) use of the generic he is recommended.[134] it is stated that singular they is disapproved of by grammarians. numerous examples of its use by eminent writers in the past are given, but it is stated that "few good modern writers would flout [grammarians] so conspicuously as fielding and thackeray", whose sentences are described as having an "old fashioned sound".[135] the second edition, fowler's modern english usage (edited by sir ernest gowers and published in 1965) continues to recommend use of the generic he; use of the singular they is called "the popular solution", which "sets the literary man's teeth on edge".[136] it is stated that singular they is still disapproved of by grammarians but common in colloquial speech.[137] according to the third edition, the new fowler's modern english usage (edited by robert burchfield and published in 1996) singular they has not only been widely used by good writers for centuries, but is now generally accepted, except by some conservative grammarians, including the fowler of 1926, who, it is argued, ignored the evidence: over the centuries, writers of standing have used they, their, and them with anaphoric reference to a singular noun or pronoun, and the practice has continued in the 20c. to the point that, traditional grammarians aside, such constructions are hardly noticed any more or are not widely felt to lie in a prohibited zone. fowler (1926) disliked the practice ... and gave a number of unattributed "faulty' examples ... the evidence presented in the oed points in another direction altogether.[138] the complete plain words was originally written in 1948 by ernest gowers, a civil servant, in an attempt by the british civil service to improve "official english". a second edition, edited by sir bruce fraser, was published in 1973. it refers to they or them as the "equivalent of a singular pronoun of common sex" as "common in speech and not unknown in serious writing " but "stigmatized by grammarians as usage grammatically indefensible. the book's advice for "official writers" (civil servants) is to avoid its use and not to be tempted by its "greater convenience", though "necessity may eventually force it into the category of accepted idiom".[139] a new edition of plain words, revised and updated by gowers's great granddaughter, rebecca gowers, was published in 2014. it notes that singular they and them have become much more widespread since gowers' original comments, but still finds it "safer" to treat a sentence like 'the reader may toss their book aside' as incorrect "in formal english", while rejecting even more strongly sentences like the times style and usage guide (first published in 2003 by the times of london) recommends avoiding sentences like by using a plural construction: the cambridge guide to english usage (2004, cambridge university press) finds singular they "unremarkable": for those listening or reading, it has become unremarkable   an element of common usage.[141] it expresses several preferences. the economist style guide refers to the use of they in sentences like as "scrambled syntax that people adopt because they cannot bring themselves to use a singular pronoun".[142] new hart's rules (oxford university press, 2012) is aimed at those engaged in copy editing, and the emphasis is on the formal elements of presentation including punctuation and typeface, rather than on linguistic style, although   like the chicago manual of style   it makes occasional forays into matters of usage. it advises against use of the purportedly gender neutral he, and suggests cautious use of they where he or she presents problems. ... it is now regarded ... as old fashioned or sexist to use he in reference to a person of unspecified sex, as in every child needs to know that he is loved. the alternative he or she is often preferred, and in formal contexts probably the best solution, but can become tiresome or long winded when used frequently. use of they in this sense (everyone needs to feel that they matter) is becoming generally accepted both in speech and in writing, especially where it occurs after an indefinite pronoun such as everyone or someone, but should not be imposed by an editor if an author has used he or she consistently.[143] the 2011 edition of the new international version bible uses singular they instead of the traditional he when translating pronouns that apply to both genders in the original greek or hebrew. this decision was based on research by a commission that studied modern english usage and determined that singular they (them/their) was by far the most common way that english language speakers and writers today refer back to singular antecedents such as whoever, anyone, somebody, a person, no one, and the like."[144] the british edition of the handbook of nonsexist writing, modified in some respects from the original us edition to conform to differences in culture and vocabulary, preserved the same recommendations, allowing singular they with semantically plural terms like "everyone" and indeterminate ones like "person", but recommending a rewrite to avoid.[133] the australian federation press style guide for use in preparation of book manuscripts recommends "gender neutral language should be used", stating that use of they and their as singular pronouns is acceptable.[145] the cambridge grammar of the english language discusses the prescriptivist argument that they is a plural pronoun and that the use of they with a singular "antecedent" therefore violates the rule of agreement between antecedent and pronoun, but takes the view that they, though primarily plural, can also be singular in a secondary extended sense, comparable to the purportedly extended sense of he to include female gender.[28] use of singular they is stated to be "particularly common", even "stylistically neutral" with antecedents such as everyone, someone, and no one, but more restricted when referring to common nouns as antecedents, as in use of the pronoun themself is described as being "rare" and "acceptable only to a minority of speakers", while use of the morphologically plural themselves is considered problematic when referring to someone rather than everyone (since only the latter implies a plural set).[28] there are also issues of grammatical acceptability when reflexive pronouns refer to singular noun phrases joined by or, the following all being problematic: on the motivation for using singular they, a student's introduction to english grammar states:[146] this avoidance of he can't be dismissed just as a matter of political correctness. the real problem with using he is that it unquestionably colours the interpretation, sometimes inappropriately ... he doesn't have a genuinely sex neutral sense. the alternative he or she can be "far too cumbersome", as in: or even "flatly ungrammatical", as in "among younger speakers", use of singular they even with definite noun phrase antecedents finds increasing acceptance, "sidestepping any presumption about the sex of the person referred to", as in: "the person i was with said they hated the film." example given by huddleston et al.[146] according to a comprehensive grammar of the english language (1985):[119] the pronoun they is commonly used as a 3rd person singular pronoun that is neutral between masculine and feminine ... at one time restricted to informal usage. it is now increasingly accepted in formal usage, especially in [american english]. according to the little, brown handbook, most experts   and some teachers and employers   find use of singular they unacceptable: although some experts accept they, them, and their with singular indefinite words, most do not, and many teachers and employers regard the plural as incorrect. to be safe, work for agreement between singular indefinite words and the pronouns that refer to them .... it recommends using he or she or avoiding the problem by rewriting the sentence to use a plural or omit the pronoun.[147] according to the american heritage book of english usage and its usage panel of selected writers, journalism professors, linguists, and other experts, many americans avoid use of they to refer to a singular antecedent out of respect for a "traditional" grammatical rule, despite use of singular they by modern writers of note and mainstream publications:[148] most of the usage panel rejects the use of they with singular antecedents as ungrammatical, even in informal speech. eighty two percent find the sentence the typical student in the program takes about six years to complete their course work unacceptable ... panel members seem to make a distinction between singular nouns, such as the typical student and a person, and pronouns that are grammatically singular but semantically plural, such as anyone, everyone and no one. sixty four percent of panel members accept the sentence no one is willing to work for those wages anymore, are they? notional agreement is the idea that some uses of they might refer to a grammatically singular antecedent seen as semantically plural: "'tis meet that some more audience than a mother, since nature makes them partial, should o'erhear the speech." "no man goes to battle to be killed." ... "but they do get killed." according to notional agreement, in the shakespeare quotation a mother is syntactically singular, but stands for all mothers;[61] and in the shaw quotation no man is syntactically singular (taking the singular form goes), but is semantically plural (all go [to kill] not to be killed), hence idiomatically requiring they.[150] such use, which goes back a long way, includes examples where the sex is known, as in the above examples.[151] distributive constructions apply a single idea to multiple members of a group. they are typically marked in english by words like each, every and any. the simplest examples are applied to groups of two, and use words like either and or   "would you like tea or coffee?". since distributive constructions apply an idea relevant to each individual in the group, rather than to the group as a whole, they are most often conceived of as singular, and a singular pronoun is used: "england expects that every man will do his duty." "every dog hath his day." however, many languages, including english, show ambivalence in this regard. because distribution also requires a group with more than one member, plural forms are sometimes used.[c][example needed] the singular they, which uses the same verb form that plurals do, is typically used to refer to an indeterminate antecedent, for example: in some sentences, typically those including words like every or any, the morphologically singular antecedent does not refer to a single entity but is "anaphorically linked" to the associated pronoun to indicate a set of pairwise relationships, as in the sentence:[153] linguists like steven pinker and rodney huddleston explain sentences like this (and others) in terms of bound variables, a term borrowed from logic. pinker prefers the terms quantifier and bound variable to antecedent and pronoun.[154] he suggests that pronouns used as "variables" in this way are more appropriately regarded as homonyms of the equivalent referential pronouns.[155] the following shows different types of anaphoric reference, using various pronouns, including they: a study of whether "singular they" is more "difficult" to understand than gendered pronouns found that "singular they is a cognitively efficient substitute for generic he or she, particularly when the antecedent is nonreferential" (e.g. anybody, a nurse, or a truck driver) rather than referring to a specific person (e.g. a runner i knew or my nurse). clauses with singular they were read "just as quickly as clauses containing a gendered pronoun that matched the stereotype of the antecedent" (e.g. she for a nurse and he for a truck driver) and "much more quickly than clauses containing a gendered pronoun that went against the gender stereotype of the antecedent".[156] on the other hand, when the pronoun they was used to refer to known individuals ("referential antecedents, for which the gender was presumably known", e.g. my nurse, that truck driver, a runner i knew), reading was slowed when compared with use of a gendered pronoun consistent with the "stereotypic gender" (e.g. he for a specific truck driver).[156] the study concluded that "the increased use of singular they is not problematic for the majority of readers".[156] a 2024 study by arnold, venkatesh, and vig stated that two thirds of people used an incorrect pronoun at least once in speaking about someone who used singular they, versus never when speaking about someone who used he or she, suggesting that singular they caused some difficulty, but the rate of errors was low (9%). they wrote that whereas people may repeat a name to avoid using the pronoun they in writing, in speech people used singular they at least as frequently as binary pronouns, "suggesting that any difficulty does not result in pronoun avoidance" in speech.[157] the singular and plural use of they can be compared with the pronoun you, which had been both a plural and polite singular, but by the 18th century replaced thou for singular referents.[141] for "you", the singular reflexive pronoun ("yourself") is different from its plural reflexive pronoun ("yourselves"); with "they" one can hear either "themself" or "themselves" for the singular reflexive pronoun. singular "they" has also been compared to nosism (such as the "royal we"), when a single person uses first person plural in place of first person singular pronouns.[158] similar to singular "you", its singular reflexive pronoun ("ourself") is different from the plural reflexive pronoun ("ourselves"). while the pronoun set derived from it is primarily used for inanimate objects, it is frequently used in an impersonal context when someone's identity is unknown or established on a provisional basis, e.g. "who is it?" or "with this new haircut, no one knows it is me."[159] it is also used for infants of unspecified gender but may be considered dehumanizing and is therefore more likely in a clinical context. otherwise, in more personal contexts, the use of it to refer to a person might indicate antipathy or other negative emotions.[160] it can also be used for non human animals of unspecified sex, though they is common for pets and other domesticated animals of unspecified sex, especially when referred to by a proper name[160] (e.g. rags, snuggles). normally, birds and mammals with a known sex are referred to by their respective male or female pronoun (he and she; him and her). sources of original examples

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influenced by genetic selection pressure on tlr2 and tlr9 genes. mol immunol. 2014 nov 22. pii: s0161 5890(14)00313 7. doi: 10.1016/j.molimm.2014.11.005. huynen mmte, martens p, hilderlink hbm. the health impacts of globalisation: a conceptual framework. global health. 2005;1: 14. available from: http://www.globalizationandhealth.com/content/1/1/14 bates b. bargaining for life: a social history of tuberculosis. 1st ed. philadelphia: university of pennsylvania press; 1992. krick t, shub da, verstraete n, ferreiro du, alonso lg, shub m, et al. amino acid metabolism conflicts with protein diversity. arxiv:1403.3301v1 [preprint]. 2014 [cited 2014 march 17]. available from: https://128.84.21.199/abs/1403.3301v1​ kording kp, mensh b. ten simple rules for structuring papers. biorxiv [preprint]. 2016 biorxiv 088278 [posted 2016 nov 28; revised 2016 dec 14; revised 2016 dec 15; cited 2017 feb 9]: [12 p.]. available from: https://www.biorxiv.org/content/10.1101/088278v5 doi: 10.1101/088278 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the interview the interview credit...devin oktar yalkin for the new york times supported by by david marchese unexpected, even uncanny, connections sometimes arise in this job. an interviewee might, for example, raise an idea that chimes with something i’ve long been thinking about. or i’ll find while doing research that someone’s work illuminates a problem i’d been dealing with. two such surprises occurred with this week’s subject, the academy award winning actress tilda swinton. both shaped my feeling about the ensuing conversation, though in very different ways. the first: in a book of sketches and musings by the british writer john berger called “bento’s sketchbook,” one drawing has always mesmerized me. it’s of an androgynous face with almond shaped, almost alien eyes, and it exudes a deeply human compassion. that sketch is labeled, simply, “tilda,” and i hadn’t much thought about upon whom it was based. until, that is, when in preparation for my interview with swinton, i watched a documentary she co directed about berger. in it, she mentions “bento’s sketchbook”   and a lightbulb went on. i’d long admired that sketch and swinton’s daring, shape shifting acting   in her avant garde films with her mentor and friend derek jarman, her indie collaborations with directors like bong joon ho and wes anderson and her hollywood triumphs like “michael clayton” and the “chronicles of narnia” trilogy   but i’d never put together that i’d been entranced by the same person, the same presence, the whole time. i couldn’t help taking that as a good omen for the interview. the second connection was harder to interpret. readers of this column may remember that my last q&a was with a doctor about medical aid in dying   a subject with which i’ve had recent personal experience. swinton’s upcoming film, “the room next door,” directed by the great pedro almodóvar and opening in select theaters on dec. 20, is about   and i swear i didn’t know this ahead of time   a distressingly similar topic. in the movie, swinton plays a woman named martha, who asks her friend ingrid, played by julianne moore, to support her decision to die by suicide after becoming terminally ill. i would have felt disingenuous not to be open about this coincidence with swinton, but i also wasn’t exactly eager to explore it. she, as it turns out, felt otherwise. “the room next door” is based on a novel by sigrid nunez, “what are you going through,” which takes its title from a quote by the french philosopher simone weil: “the love of our neighbor in all its fullness simply means being able to say to him, what are you going through?” so what are you going through? i’m enjoying right now the attention to that question, and the fact that our film puts that question into the air. the idea of bearing witness, and the question of what is friendship, but even more than friendship, what is it to coexist? what is it to not look away? i think of it actually as a political film. i have questions about that, but i want to preface them by sharing what i hope is a morbidly humorous anecdote. sounds good!

the times was founded as the conservative new york daily times in 1851, and came to national recognition in the 1870s with its aggressive coverage of corrupt politician william m. tweed. following the panic of 1893, chattanooga times publisher adolph ochs gained a controlling interest in the company. in 1935, ochs was succeeded by his son in law, arthur hays sulzberger, who began a push into european news. sulzberger's son in law arthur ochs became publisher in 1963, adapting to a changing newspaper industry and introducing radical changes. the new york times was involved in the landmark 1964 u.s. supreme court case new york times co. v. sullivan, which restricted the ability of public officials to sue the media for defamation. in 1971, the new york times published the pentagon papers, an internal department of defense document detailing the united states's historical involvement in the vietnam war, despite pushback from then president richard nixon. in the landmark decision new york times co. v. united states (1971), the supreme court ruled that the first amendment guaranteed the right to publish the pentagon papers. in the 1980s, the times began a two decade progression to digital technology and launched nytimes.com in 1996. in the 21st century, the new york times has shifted its publication online amid the global decline of newspapers. the times has expanded to several other publications, including the new york times magazine, the new york times international edition, and the new york times book review. in addition, the paper has produced several television series, podcasts   including the daily   and games through the new york times games. the new york times has been involved in several controversies in its history. the times maintains several regional bureaus staffed with journalists across six continents, and has received 137 pulitzer prizes as of 2023, the most of any publication, among other accolades. the new york times was established in 1851 by new york tribune journalists henry jarvis raymond and george jones.[4] the times experienced significant circulation, particularly among conservatives; new york tribune publisher horace greeley praised the new york daily times.[5] during the american civil war, times correspondents gathered information directly from confederate states.[6] in 1869, jones inherited the paper from raymond,[7] who had changed its name to the new york times.[8] under jones, the times began to publish a series of articles criticizing tammany hall political boss william m. tweed, despite vehement opposition from other new york newspapers.[9] in 1871, the new york times published tammany hall's accounting books; tweed was tried in 1873 and sentenced to twelve years in prison. the times earned national recognition for its coverage of tweed.[10] in 1891, jones died, creating a management imbroglio in which his children had insufficient business acumen to inherit the company and his will prevented an acquisition of the times.[11] editor in chief charles ransom miller, editorial editor edward cary, and correspondent george f. spinney established a company to manage the new york times,[12] but faced financial difficulties during the panic of 1893.[13] in august 1896, chattanooga times publisher adolph ochs acquired the new york times, implementing significant alterations to the newspaper's structure. ochs established the times as a merchant's newspaper and removed the hyphen from the newspaper's name.[14] in 1905, the new york times opened times tower, marking expansion.[15] the times experienced a political realignment in the 1910s amid several disagreements within the republican party.[16] the new york times reported on the sinking of the titanic, as other newspapers were cautious about bulletins circulated by the associated press.[17] through managing editor carr van anda, the times focused on scientific advancements, reporting on albert einstein's then unknown theory of general relativity and becoming involved in the discovery of the tomb of tutankhamun.[18] in april 1935, ochs died, leaving his son in law arthur hays sulzberger as publisher.[19] the great depression forced sulzberger to reduce the new york times's operations,[20] and developments in the new york newspaper landscape resulted in the formation of larger newspapers, such as the new york herald tribune and the new york world telegram.[21] in contrast to ochs, sulzberger encouraged wirephotography.[22] the new york times extensively covered world war ii through large headlines,[23] reporting on exclusive stories such as the yugoslav coup d'état.[24] amid the war, sulzberger began expanding the times's operations further, acquiring wqxr fm in 1944   the first non times investment since the jones era   and established a fashion show in times hall. despite reductions as a result of conscription, the new york times retained the largest journalism staff of any newspaper.[25] the times's print edition became available internationally during the war through the army & air force exchange service; the new york times overseas weekly later became available in japan through the asahi shimbun and in germany through the frankfurter zeitung. the international edition would develop into a separate newspaper.[26] journalist william l. laurence publicized the atomic bomb race between the united states and germany, resulting in the federal bureau of investigation seizing copies of the times. the united states government recruited laurence to document the manhattan project in april 1945.[27] laurence became the only witness of the manhattan project, a detail realized by employees of the new york times following the atomic bombing of hiroshima.[28] following world war ii, the new york times continued to expand.[29] the times was subject to investigations from the senate internal security subcommittee, a mccarthyist subcommittee that investigated purported communism from within press institutions. arthur hays sulzberger's decision to dismiss a copyreader who had pleaded the fifth amendment drew ire from within the times and from external organizations.[30] in april 1961, sulzberger resigned, appointing his son in law, the new york times company president orvil dryfoos.[31] under dryfoos, the new york times established a newspaper based in los angeles.[32] in 1962, the implementation of automated printing presses in response to increasing costs mounted fears over technological unemployment. the new york typographical union staged a strike in december, altering the media consumption of new yorkers. the strike left new york with three remaining newspapers   the times, the daily news, and the new york post   by its conclusion in march 1963.[33] in may, dryfoos died of a heart ailment.[34] following weeks of ambiguity, arthur ochs sulzberger became the new york times's publisher.[35] technological advancements leveraged by newspapers such as the los angeles times and improvements in coverage from the washington post and the wall street journal necessitated adaptations to nascent computing.[36] the new york times published "heed their rising voices" in 1960, a full page advertisement purchased by supporters of martin luther king jr. criticizing law enforcement in montgomery, alabama for their response to the civil rights movement. montgomery public safety commissioner l. b. sullivan sued the times for defamation. in new york times co. v. sullivan (1964), the u.s. supreme court ruled that the verdict in alabama county court and the supreme court of alabama violated the first amendment.[37] the decision is considered to be landmark.[38] after financial losses, the new york times ended its international edition, acquiring a stake in the paris herald tribune, forming the international herald tribune.[39] the times initially published the pentagon papers, facing opposition from then president richard nixon. the supreme court ruled in the new york times's favor in new york times co. v. united states (1971), allowing the times and the washington post to publish the papers.[40] the new york times remained cautious in its initial coverage of the watergate scandal.[41] as congress began investigating the scandal, the times furthered its coverage,[42] publishing details on the huston plan, alleged wiretapping of reporters and officials,[43] and testimony from james w. mccord jr. that the committee for the re election of the president paid the conspirators off.[44] the exodus of readers to suburban new york newspapers, such as newsday and gannett papers, adversely affected the new york times's circulation.[45] contemporary newspapers balked at additional sections; time devoted a cover for its criticism and new york wrote that the times was engaging in "middle class self absorption".[46] the new york times, the daily news, and the new york post were the subject of a strike in 1978,[47] allowing emerging newspapers to leverage halted coverage.[48] the times deliberately avoided coverage of the aids epidemic, running its first front page article in may 1983. max frankel's editorial coverage of the epidemic, with mentions of anal intercourse, contrasted with then executive editor a. m. rosenthal's puritan approach, intentionally avoiding descriptions of the luridity of gay venues.[49] following years of waning interest in the new york times, sulzberger resigned in january 1992, appointing his son, arthur ochs sulzberger jr., as publisher.[50] the internet represented a generational shift within the times; sulzberger, who negotiated the new york times company's acquisition of the boston globe in 1993, derided the internet, while his son expressed antithetical views. @times appeared on america online's website in may 1994 as an extension of the new york times, featuring news articles, film reviews, sports news, and business articles.[51] despite opposition, several employees of the times had begun to access the internet.[52] the online success of publications that traditionally co existed with the times   such as america online, yahoo, and cnn   and the expansion of websites such as monster.com and craigslist that threatened the new york times's classified advertisement model increased efforts to develop a website.[53] nytimes.com debuted on january 19 and was formally announced three days later.[54] the times published domestic terrorist ted kaczynski's essay industrial society and its future in 1995, contributing to his arrest after his brother david recognized the essay's penmanship.[55] following the establishment of nytimes.com, the new york times retained its journalistic hesitancy under executive editor joseph lelyveld, refusing to publish an article reporting on the clinton lewinsky scandal from drudge report. nytimes.com editors conflicted with print editors on several occasions, including wrongfully naming security guard richard jewell as the suspect in the centennial olympic park bombing and covering the death of diana, princess of wales in greater detail than the print edition.[56] the new york times electronic media company was adversely affected by the dot com crash.[57] the times extensively covered the september 11 attacks. the following day's print issue contained sixty six articles,[58] the work of over three hundred dispatched reporters.[59] journalist judith miller was the recipient of a package containing a white powder during the 2001 anthrax attacks, furthering anxiety within the new york times.[60] in september 2002, miller and military correspondent michael r. gordon wrote an article for the times claiming that iraq had purchased aluminum tubes. the article was cited by then president george w. bush to claim that iraq was constructing weapons of mass destruction; the theoretical use of aluminum tubes to produce nuclear material was speculation.[61] in march 2003, the united states invaded iraq, beginning the iraq war.[62] the new york times attracted controversy after thirty six articles[63] from journalist jayson blair were discovered to be plagiarized.[64] criticism over then executive editor howell raines and then managing editor gerald m. boyd mounted following the scandal, culminating in a town hall in which a deputy editor criticized raines for failing to question blair's sources in article he wrote on the d.c. sniper attacks.[65] in june 2003, raines and boyd resigned.[66] arthur ochs sulzberger jr. appointed bill keller as executive editor.[67] miller continued to report on the iraq war as a journalistic embed covering the country's weapons of mass destruction program. keller and then washington bureau chief jill abramson unsuccessfully attempted to subside criticism. conservative media criticized the times over its coverage of missing explosives from the al qa'qaa weapons facility.[68] an article in december 2005 disclosing warrantless surveillance by the national security agency contributed to further criticism from the george w. bush administration and the senate's refusal to renew the patriot act.[69] in the plame affair, a central intelligence agency inquiry found that miller had become aware of valerie plame's identity through then vice president dick cheney's chief of staff scooter libby, resulting in miller's resignation.[70] during the great recession, the new york times suffered significant fiscal difficulties as a consequence of the subprime mortgage crisis and a decline in classified advertising.[71] exacerbated by rupert murdoch's revitalization of the wall street journal through his acquisition of dow jones & company, the new york times company began enacting measures to reduce the newsroom budget. the company was forced to borrow $250 million (equivalent to $353.79 million in 2023) from mexican billionaire carlos slim and fired over one hundred employees by 2010.[72] nytimes.com's coverage of the eliot spitzer prostitution scandal, resulting in the resignation of then new york governor eliot spitzer, furthered the legitimacy of the website as a journalistic medium.[73] the times's economic downturn renewed discussions of an online paywall;[74] the new york times implemented a paywall in march 2011.[75] abramson succeeded keller,[76] continuing her characteristic investigations into corporate and government malfeasance into the times's coverage.[77] following conflicts with newly appointed chief executive mark thompson's ambitions,[78] abramson was dismissed by sulzberger jr., who named dean baquet as her replacement.[79] leading up to the 2016 presidential election, the new york times elevated the hillary clinton email controversy[80] into the single most important issue during the election campaign.[81][82][83] donald trump's upset victory contributed to an increase in subscriptions to the times.[84] the new york times experienced unprecedented indignation from trump, who referred to publications such as the times as "enemies of the people" at the conservative political action conference and tweeted his disdain for the newspaper and cnn.[85] in october 2017, the new york times published an article by journalists jodi kantor and megan twohey alleging that dozens of women had accused film producer and the weinstein company co chairman harvey weinstein of sexual misconduct.[86] the investigation resulted in weinstein's resignation and conviction,[87] precipitated the weinstein effect,[88] and served as a catalyst for the #metoo movement.[89] the new york times company vacated the public editor position[90] and eliminated the copy desk in november.[91] sulzberger jr. announced his resignation in december 2017, appointing his son, a. g. sulzberger, as publisher.[92] trump's relationship   equally diplomatic and negative   marked sulzberger's tenure.[93] in september 2018, the new york times published "i am part of the resistance inside the trump administration", an anonymous essay by a self described trump administration official later revealed to be department of homeland security chief of staff miles taylor.[94] the animosity   which extended to nearly three hundred instances of trump disparaging the times by may 2019[95]   culminated in trump ordering federal agencies to cancel their subscriptions to the new york times and the washington post in october 2019.[96] trump's tax returns have been the subject of three separate investigations.[c] during the covid 19 pandemic, the times began implementing data services and graphs.[100] on may 23, 2020, the new york times's front page solely featured u.s. deaths near 100,000, an incalculable loss, a subset of the 100,000 people in the united states who died of covid 19, the first time that the times's front page lacked images since they were introduced.[101] since 2020, the new york times has focused on broader diversification, developing online games and producing television series.[102] the new york times company acquired the athletic in january 2022.[103] since 1896, the new york times has been published by the ochs sulzberger family, having previously been published by henry jarvis raymond until 1869[104] and by george jones until 1896.[105] adolph ochs published the times until his death in 1935,[106] when he was succeeded by his son in law, arthur hays sulzberger. sulzberger was publisher until 1961[107] and was succeeded by orvil dryfoos, his son in law, who served in the position until his death in 1963.[108] arthur ochs sulzberger succeeded dryfoos until his resignation in 1992.[109] his son, arthur ochs sulzberger jr., served as publisher until 2018. the new york times's current publisher is a. g. sulzberger, sulzberger jr.'s son.[92] as of 2023, the times's executive editor is joseph kahn[110] and the paper's managing editors are marc lacey and carolyn ryan, having been appointed in june 2022.[111] the new york times's deputy managing editors are sam dolnick,[112] monica drake,[113] and steve duenes,[114] and the paper's assistant managing editors are matthew ericson,[115] jonathan galinsky, hannah poferl, sam sifton, karron skog,[116] and michael slackman.[117] the new york times is owned by the new york times company, a publicly traded company. the new york times company, in addition to the times, owns wirecutter, the athletic, the new york times cooking, and the new york times games, and acquired serial productions and audm. the new york times company holds undisclosed minority investments in multiple other businesses, and formerly owned the boston globe and several radio and television stations.[118] the new york times company is majority owned by the ochs sulzberger family through elevated shares in the company's dual class stock structure held largely in a trust, in effect since the 1950s;[119] as of 2022, the family holds ninety five percent of the new york times company's class b shares, allowing it to elect seventy percent of the company's board of directors.[120] class a shareholders have restrictive voting rights.[121] as of 2023, the new york times company's chief executive is meredith kopit levien, the company's former chief operating officer who was appointed in september 2020.[122] as of march 2023, the new york times company employs 5,800 individuals,[102] including 1,700 journalists according to deputy managing editor sam dolnick.[123] journalists for the new york times may not run for public office, provide financial support to political candidates or causes, endorse candidates, or demonstrate public support for causes or movements.[124] journalists are subject to the guidelines established in "ethical journalism" and "guidelines on integrity".[125] according to the former, times journalists must abstain from using sources with a personal relationship to them and must not accept reimbursements or inducements from individuals who may be written about in the new york times, with exceptions for gifts of nominal value.[126] the latter requires attribution and exact quotations, though exceptions are made for linguistic anomalies. staff writers are expected to ensure the veracity of all written claims, but may delegate researching obscure facts to the research desk.[127] in march 2021, the times established a committee to avoid journalistic conflicts of interest with work written for the new york times, following columnist david brooks's resignation from the aspen institute for his undisclosed work on the initiative weave.[128] the new york times editorial board was established in 1896 by adolph ochs. with the opinion department, the editorial board is independent of the newsroom.[168] then editor in chief charles ransom miller served as opinion editor from 1883 until his death in 1922.[169] rollo ogden succeeded miller until his death in 1937.[170] from 1937 to 1938, john huston finley served as opinion editor; in a prearranged plan, charles merz succeeded finley.[171] merz served in the position until his retirement in 1961.[172] john bertram oakes served as opinion editor from 1961 to 1976, when then publisher arthur ochs sulzberger appointed max frankel.[173] frankel served in the position until 1986, when he was appointed as executive editor.[174] jack rosenthal was the opinion editor from 1986 to 1993.[175] howell raines succeeded rosenthal until 2001, when he was made executive editor.[176] gail collins succeeded raines until her resignation in 2006.[177] from 2007 to 2016, andrew rosenthal was the opinion editor.[178] james bennet succeeded rosenthal until his resignation in 2020.[179] as of july 2024[update], the editorial board comprises thirteen opinion writers.[180] the new york times's opinion editor is kathleen kingsbury[181] and the deputy opinion editor is patrick healy.[116] the new york times's editorial board was initially opposed to liberal beliefs, opposing women's suffrage in 1900 and 1914. the editorial board began to espouse progressive beliefs during oakes' tenure, conflicting with the ochs sulzberger family, of which oakes was a member as adolph ochs's nephew; in 1976, oakes publicly disagreed with sulzberger's endorsement of daniel patrick moynihan over bella abzug in the 1976 senate democratic primaries in a letter sent from martha's vineyard. under rosenthal, the editorial board took positions supporting assault weapons legislation and the legalization of marijuana, but publicly criticized the obama administration over its portrayal of terrorism.[178] in presidential elections, the new york times has endorsed a total of twelve republican candidates and thirty two democratic candidates, and has endorsed the democrat in every election since 1960.[182][183][j] with the exception of wendell willkie, republicans endorsed by the times have won the presidency. in 2016, the editorial board issued an anti endorsement against donald trump for the first time in its history.[184] in february 2020, the editorial board reduced its presence from several editorials each day to occasional editorials for events deemed particularly significant. since august 2024, the board no longer endorses candidates in local or congressional races in new york.[185] since 1940, editorial, media, and technology workers of the new york times have been represented by the new york times guild. the times guild, along with the times tech guild, are represented by the newsguild cwa.[186] in 1940, arthur hays sulzberger was called upon by the national labor relations board amid accusations that he had discouraged guild membership in the times. over the next few years, the guild would ratify several contracts, expanding to editorial and news staff in 1942 and maintenance workers in 1943.[187] the new york times guild has walked out several times in its history, including for six and a half hours in 1981[188] and in 2017, when copy editors and reporters walked out at lunchtime in response to the elimination of the copy desk.[189] on december 7, 2022, the union held a one day strike,[190] the first interruption to the new york times since 1978.[191] the new york times guild reached an agreement in may 2023 to increase minimum salaries for employees and a retroactive bonus.[192] the times tech guild is the largest technology union with collective bargaining rights in the united states.[193] the guild held a second strike beginning on november 4, 2024, threatening the times's coverage of the 2024 united states presidential election.[194] in october 2001, the new york times began publishing dealbook, a financial newsletter edited by andrew ross sorkin. the times had intended to publish the newsletter in september, but delayed its debut following the september 11 attacks.[200] a website for dealbook was established in march 2006.[201] the new york times began shifting towards dealbook as part of the newspaper's financial coverage in november 2010 with a renewed website and a presence in the times's print edition.[202] in 2011, the times began hosting the dealbook summit, an annual conference hosted by sorkin.[203] during the covid 19 pandemic, the new york times hosted the dealbook online summit in 2020[204] and 2021.[205] the 2022 dealbook summit featured   among other speakers   former vice president mike pence and israeli prime minister benjamin netanyahu,[206] culminating in an interview with former ftx chief executive sam bankman fried; ftx had filed for bankruptcy several weeks prior.[207] the 2023 dealbook summit's speakers included vice president kamala harris, israeli president isaac herzog, and businessman elon musk.[203] in june 2010, the new york times licensed the political blog fivethirtyeight in a three year agreement.[208] the blog, written by nate silver, had garnered attention during the 2008 presidential election for predicting the elections in forty nine of fifty states. fivethirtyeight appeared on nytimes.com in august.[209] according to silver, several offers were made for the blog; silver wrote that a merger of unequals must allow for editorial sovereignty and resources from the acquirer, comparing himself to groucho marx.[210] according to the new republic, fivethirtyeight drew as much as a fifth of the traffic to nytimes.com during the 2012 presidential election.[211] in july 2013, fivethirtyeight was sold to espn.[212] in an article following silver's exit, public editor margaret sullivan wrote that he was disruptive to the times's culture for his perspective on probability based predictions and scorn for polling   having stated that punditry is "fundamentally useless", comparing him to billy beane, who implemented sabermetrics in baseball. according to sullivan, his work was criticized by several notable political journalists.[213] the new republic obtained a memo in november 2013 revealing then washington bureau chief david leonhardt's ambitions to establish a data driven newsletter with presidential historian michael beschloss, graphic designer amanda cox, economist justin wolfers, and the new republic journalist nate cohn.[214] by march, leonhardt had amassed fifteen employees from within the new york times; the newsletter's staff included individuals who had created the times's dialect quiz, fourth down analyzer, and a calculator for determining buying or renting a home.[215] the upshot debuted in april 2014.[216] fast company reviewed an article about illinois secure choice   a state funded retirement saving system   as "neither a terse news item, nor a formal financial advice column, nor a politically charged response to economic policy", citing its informal and neutral tone.[217] the upshot developed "the needle" for the 2016 presidential election and 2020 presidential elections, a thermometer dial displaying the probability of a candidate winning.[218] in january 2016, cox was named editor of the upshot.[219] kevin quealy was named editor in june 2022.[220] according to an internal readership poll conducted by the new york times in 2019, eighty four percent of readers identified as liberal.[221] in february 1942, the new york times crossword debuted in the new york times magazine; according to richard shepard, the attack on pearl harbor in december 1941 convinced then publisher arthur hays sulzberger of the necessity of a crossword.[222] the new york times has published recipes since the 1850s and has had a separate food section since the 1940s.[223] in 1961, restaurant critic craig claiborne published the new york times cookbook,[224] an unauthorized cookbook that drew from the times's recipes.[225] since 2010, former food editor amanda hesser has published the essential new york times cookbook, a compendium of recipes from the new york times.[226] the innovation report in 2014 revealed that the times had attempted to establish a cooking website since 1998, but faced difficulties with the absence of a defined data structure.[227] in september 2014, the new york times introduced nyt cooking, an application and website.[228] edited by food editor sam sifton,[225] the times's cooking website features 21,000 recipes as of 2022.[229] nyt cooking features videos as part of an effort by sifton to hire two former tasty employees from buzzfeed.[225] in august 2023, nyt cooking added personalized recommendations through the cosine similarity of text embeddings of recipe titles.[230] the website also features no recipe recipes, a concept proposed by sifton.[231] the new york times archives its articles in a basement annex beneath its building known as "the morgue", a venture started by managing editor carr van anda in 1907. the morgue comprises news clippings, a pictures library, and the times's book and periodicals library. as of 2014, it is the largest library of any media company, dating back to 1851.[237] in november 2018, the new york times partnered with google to digitize the archival library.[238] additionally, the new york times has maintained a virtual microfilm reader known as timesmachine since 2014. the service launched with archives from 1851 to 1980; in 2016, timesmachine expanded to include archives from 1981 to 2002. the times built a pipeline to take in tiff images, article metadata in xml and an ini file of cartesian geometry describing the boundaries of the page, and convert it into a png of image tiles and json containing the information in the xml and ini files. the image tiles are generated using gdal and displayed using leaflet, using data from a content delivery network. the times ran optical character recognition on the articles using tesseract and shingled and fuzzy string matched the result.[239] the new york times uses a proprietary[240] content management system known as scoop for its online content and the microsoft word based content management system cci for its print content. scoop was developed in 2008 to serve as a secondary content management system for editors working in cci to publish their content on the times's website; as part of the new york times's online endeavors, editors now write their content in scoop and send their work to cci for print publication. since its introduction, scoop has superseded several processes within the times, including print edition planning and collaboration, and features tools such as multimedia integration, notifications, content tagging, and drafts. the new york times uses private articles for high profile opinion pieces, such as those written by russian president vladimir putin and actress angelina jolie, and for high level investigations.[241] in january 2012, the times released integrated content editor (ice), a revision tracking tool for wordpress and tinymce. ice is integrated within the times's workflow by providing a unified text editor for print and online editors, reducing the divide between print and online operations.[242] by 2017,[243] the new york times began developing a new authoring tool to its content management system known as oak, in an attempt to further the times's visual efforts in articles and reduce the discrepancy between the mediums in print and online articles.[244] the system reduces the input of editors and supports additional visual mediums in an editor that resembles the appearance of the article.[243] oak is based on prosemirror, a javascript rich text editor toolkit, and retains the revision tracking and commenting functionalities of the new york times's previous systems. additionally, oak supports predefined article headers.[245] in 2019, oak was updated to support collaborative editing using firebase to update editors's cursor status. several google cloud functions and google cloud tasks allow articles to be previewed as they will be printed, and the times's primary mysql database is regularly updated to update editors on the article status.[246] since 1895, the new york times has maintained a manual of style in several forms. the new york times manual of style and usage was published on the times's intranet in 1999.[247] the new york times uses honorifics when referring to individuals. with the ap stylebook's removal of honorifics in 2000 and the wall street journal's omission of courtesy titles in may 2023, the times is the only national newspaper that continues to use honorifics. according to former copy editor merrill perlman, the new york times continues to use honorifics as a "sign of civility".[248] the times's use of courtesy titles led to an apocryphal rumor that the paper had referred to singer meat loaf as "mr. loaf".[249] several exceptions have been made; the former sports section and the new york times book review do not use honorifics.[250] a leaked memo following the killing of osama bin laden in may 2011 revealed that editors were given a last minute instruction to omit the honorific from osama bin laden's name, consistent with deceased figures of historic significance, such as adolf hitler, napoleon, and vladimir lenin.[251] the new york times uses academic and military titles for individuals prominently serving in that position.[252] in 1986, the times began to use ms.,[250] and introduced the gender neutral title mx. in 2015.[253] the new york times uses initials when a subject has expressed a preference, such as donald trump.[254] the new york times maintains a strict but not absolute obscenity policy, including phrases. in a review of the canadian hardcore punk band fucked up, music critic kelefa sanneh wrote that the band's name   entirely rendered in asterisks   would not be printed in the times "unless an american president, or someone similar, says it by mistake";[255] the new york times did not repeat then vice president dick cheney's use of "fuck" against then senator patrick leahy in 2004[256] or then vice president joe biden's remarks that the passage of the affordable care act in 2010 was a "big fucking deal".[257] the times's profanity policy has been tested by former president donald trump. the new york times published trump's access hollywood tape in october 2016, containing the words "fuck", "pussy", "bitch", and "tits", the first time the publication had published an expletive on its front page,[258] and repeated an explicit phrase for fellatio stated by then white house communications director anthony scaramucci in july 2017.[259] the new york times omitted trump's use of the phrase "shithole countries" from its headline in favor of "vulgar language" in january 2018.[260] the times banned certain words, such as "bitch", "whore", and "sluts", from wordle in 2022.[261] journalists for the new york times do not write their own headlines, but rather copy editors who specifically write headlines. the times's guidelines insist headline editors get to the main point of an article but avoid giving away endings, if present. other guidelines include using slang "sparingly", avoiding tabloid headlines, not ending a line on a preposition, article, or adjective, and chiefly, not to pun. the new york times manual of style and usage states that wordplay, such as "rubber industry bounces back", is to be tested on a colleague as a canary is to be tested in a coal mine; "when no song bursts forth, start rewriting".[262] the new york times has amended headlines due to controversy. in 2019, following two back to back mass shootings in el paso and dayton, the times used the headline, "trump urges unity vs. racism", to describe then president donald trump's words after the shootings. after criticism from fivethirtyeight founder nate silver, the headline was changed to, "assailing hate but not guns".[263] online, the new york times's headlines do not face the same length restrictions as headlines that appear in print; print headlines must fit within a column, often six words. additionally, headlines must "break" properly, containing a complete thought on each line without splitting up prepositions and adverbs. writers may edit a headline to fit an article more aptly if further developments occur. the times uses a/b testing for articles on the front page, placing two headlines against each other. at the end of the test, the headlines that receives more traffic is chosen.[264] the alteration of a headline regarding intercepted russian data used in the mueller special counsel investigation was noted by trump in a march 2017 interview with time, in which he claimed that the headline used the word "wiretapped" in the print version of the paper on january 20, while the digital article on january 19 omitted the word. the headline was intentionally changed in the print version to use "wiretapped" in order to fit within the print guidelines.[265] the nameplate of the new york times has been unaltered since 1967. in creating the initial nameplate, henry jarvis raymond sought to model the london times, which used a blackletter style called textura, popularized following the fall of the western roman empire and regional variations of alcuin's script, as well as a period. with the change to the new york times on september 14, 1857, the nameplate followed. under george jones, the terminals of the "n", "r", and "s" were intentionally exaggerated into swashes. the nameplate in the january 15, 1894, issue trimmed the terminals once more, smoothed the edges, and turned the stem supporting the "t" into an ornament. the hyphen was dropped on december 1, 1896, after adolph ochs purchased the paper. the descender of the "h" was shortened on december 30, 1914. the largest change to the nameplate was introduced on february 21, 1967, when type designer ed benguiat redesigned the logo, most prominently turning the arrow ornament into a diamond. notoriously, the new logo dropped the period that remained with the times up until that point; one reader compared the omission of the period to "performing plastic surgery on helen of troy." picture editor john radosta worked with a new york university professor to determine that dropping the period saved the paper us$41.28 (equivalent to $377.21 in 2023).[266] as of december 2023, the new york times has printed sixty thousand issues, a statistic represented in the paper's masthead to the right of the volume number, the times's years in publication written in roman numerals.[267] the volume and issues are separated by four dots representing the edition number of that issue; on the day of the 2000 presidential election, the times was revised four separate times, necessitating the use of an em dash in place of an ellipsis.[268] the em dash issue was printed hundreds times over before being replaced by the one dot issue. despite efforts by newsroom employees to recycle copies sent to the new york times's office, several copies were kept, including one put on display at the museum at the times.[269] from february 7, 1898, to december 31, 1999, the times's issue number was incorrect by five hundred issues, an error suspected by the atlantic to be the result of a careless front page type editor. the misreporting was noticed by news editor aaron donovan, who was calculating the number of issues in a spreadsheet and noticed the discrepancy. the new york times celebrated fifty thousand issues on march 14, 1995, an observance that should have occurred on july 26, 1996.[270] the new york times has reduced the physical size of its print edition while retaining its broadsheet format. the new york daily times debuted at 18 inches (460 mm) across. by the 1950s, the times was being printed at 16 inches (410 mm) across. in 1953, an increase in paper costs to us$10 (equivalent to $113.88 in 2023) a ton increased newsprint costs to us$21.7 million (equivalent to $308,616,417.91 in 2023) on december 28, 1953, the pages were reduced to 15.5 inches (390 mm). on february 14, 1955, a further reduction to 15 inches (380 mm) occurred, followed by 14.5 and 13.5 inches (370 and 340 mm). on august 6, 2007, the largest cut occurred when the pages were reduced to 12 inches (300 mm),[k] a decision that other broadsheets had previously considered. then executive editor bill keller stated that a narrower paper would be more beneficial to the reader but acknowledged a net loss in article space of five percent.[271] in 1985, the new york times company established a minority stake in a us$21.7 million (equivalent to $308,616,417.91 in 2023) newsprint plant in clermont, quebec through donahue malbaie.[272] the company sold its equity interest in donahue malbaie in 2017.[273] the new york times often uses large, bolded headlines for major events. for the print version of the times, these headlines are written by one copy editor, reviewed by two other copy editors, approved by the masthead editors, and polished by other print editors. the process is completed before 8 p.m., but it may be repeated if further development occur, as did take place during the 2020 presidential election. on the day joe biden was declared the winner, the new york times utilized a "hammer headline" reading, "biden beats trump", in all caps and bolded. a dozen journalists discussed several potential headlines, such as "it's biden" or "biden's moment", and prepared for a donald trump victory, in which they would use "trump prevails".[274] during trump's first impeachment, the times drafted the hammer headline, "trump impeached". the new york times altered the ligatures between the e and the a, as not doing so would leave a noticeable gap due to the stem of the a sloping away from the e. the times reused the tight kerning for "biden beats trump" and trump's second impeachment, which simply read, "impeached".[275] in cases where two major events occur on the same day or immediately after each other, the new york times has used a "paddle wheel" headline, where both headlines are used but split by a line. the term dates back to august 8, 1959, when it was revealed that the united states was monitoring soviet missile firings and when explorer 6   shaped like a paddle wheel   launched. since then, the paddle wheel has been used several times, including on january 21, 1981, when ronald reagan was sworn in minutes before iran released fifty two american hostages, ending the iran hostage crisis. at the time, most newspapers favored the end of the hostage crisis, but the times placed the inauguration above the crisis. since 1981, the paddle wheel has been used twice; on july 26, 2000, when the 2000 camp david summit ended without an agreement and when bush announced that dick cheney would be his running mate, and on june 24, 2016, when the united kingdom european union membership referendum passed, beginning brexit, and when the supreme court deadlocked in united states v. texas.[276] the new york times has run editorials from its editorial board on the front page twice. on june 13, 1920, the times ran an editorial opposing warren g. harding, who was nominated during that year's republican party presidential primaries.[277] amid growing acceptance to run editorials on the front pages[278] from publications such as the detroit free press, the patriot news, the arizona republic, and the indianapolis star, the new york times ran an editorial on its front page on december 5, 2015, following a terrorist attack in san bernardino, california, in which fourteen people were killed.[279] the editorial advocates for the prohibition of "slightly modified combat rifles" used in the san bernardino shooting and "certain kinds of ammunition".[277] conservative figures, including texas senator ted cruz, the weekly standard editor bill kristol, fox & friends co anchor steve doocy, and then new jersey governor chris christie criticized the times. talk radio host erick erickson acquired an issue of the new york times to fire several rounds into the paper, posting a picture online.[280] since 1997,[281] the new york times's primary distribution center is located in college point, queens. the facility is 300,000 sq ft (28,000 m2) and employs 170 people as of 2017. the college point distribution center prints 300,000 to 800,000 newspapers daily. on most occasions, presses start before 11 p.m. and finish before 3 a.m. a robotic crane grabs a roll of newsprint and several rollers ensure ink can be printed on paper. the final newspapers are wrapped in plastic and shipped out.[282] as of 2018, the college point facility accounted for 41 percent of production. other copies are printed at 26 other publications, such as the atlanta journal constitution, the dallas morning news, the santa fe new mexican, and the courier journal. with the decline of newspapers, particularly regional publications, the times must travel further; for example, newspapers for hawaii are flown from san francisco on united airlines, and sunday papers are flown from los angeles on hawaiian airlines. computer glitches, mechanical issues, and weather phenomena affect circulation but do not stop the paper from reaching customers.[283] the college point facility prints over two dozen other papers, including the wall street journal and usa today.[284] the new york times has halted its printing process several times to account for major developments. the first printing stoppage occurred on march 31, 1968, when then president lyndon b. johnson announced that he would not seek a second term. other press stoppages include may 19, 1994, for the death of former first lady jacqueline kennedy onassis, and july 17, 1996, for trans world airlines flight 800. the 2000 presidential election necessitated two press stoppages. al gore appeared to concede on november 8, forcing then executive editor joseph lelyveld to stop the times's presses to print a new headline, "bush appears to defeat gore", with a story that stated george w. bush was elected president. however, gore held off his concession speech over doubts over florida. lelyveld reran the headline, "bush and gore vie for an edge". since 2000, three printing stoppages have been issued for the death of william rehnquist on september 3, 2005, for the killing of osama bin laden on may 1, 2011, and for the passage of the marriage equality act in the new york state assembly and subsequent signage by then governor andrew cuomo on june 24, 2011.[285] the new york times website is hosted at nytimes.com. it has undergone several major redesigns and infrastructure developments since its debut. in april 2006, the new york times redesigned its website with an emphasis on multimedia.[286] in preparation for super tuesday in february 2008, the times developed a live election system using the associated press's file transfer protocol (ftp) service and a ruby on rails application; nytimes.com experienced its largest traffic on super tuesday and the day after.[287] the nytimes application debuted with the introduction of the app store on july 10, 2008. engadget's scott mcnulty wrote critically of the app, negatively comparing it to the new york times's mobile website.[288] an ipad version with select articles was released on april 3, 2010, with the release of the first generation ipad.[289] in october, the new york times expanded nyt editors' choice to include the paper's full articles. nyt for ipad was free until 2011.[290] the times applications on iphone and ipad began offering in app subscriptions in july 2011.[291] the times released a web application for ipad   featuring a format summarizing trending headlines on twitter[292]   and a windows 8 application in october 2012.[293] efforts to ensure profitability through an online magazine and a "need to know" subscription emerged in adweek in july 2013.[294] in march 2014, the new york times announced three applications   nyt now, an application that offers pertinent news in a blog format, and two unnamed applications, later known as nyt opinion[295] and nyt cooking[227]   to diversify its product laterals.[296] the daily is the modern front page of the new york times. the new york times manages several podcasts, including multiple podcasts with serial productions. the times's longest running podcast is the book review podcast,[298] debuting as inside the new york times book review in april 2006.[299] the new york times's defining podcast is the daily,[297] a daily news podcast hosted by michael barbaro and, since march 2022, sabrina tavernise.[300] the podcast debuted on february 1, 2017.[301] the new york times has used video games as part of its journalistic efforts, among the first publications to do so,[304] contributing to an increase in internet traffic;[305] the publication has also developed its own video games. in 2014, the new york times magazine introduced spelling bee, a word game in which players guess words from a set of letters in a honeycomb and are awarded points for the length of the word and receive extra points if the word is a pangram.[306] the game was proposed by will shortz, created by frank longo, and has been maintained by sam ezersky. in may 2018, spelling bee was published on nytimes.com, furthering its popularity.[307] in february 2019, the times introduced letter boxed, in which players form words from letters placed on the edges of a square box,[308] followed in june 2019 by tiles, a matching game in which players form sequences of tile pairings, and vertex, in which players connect vertices to assemble an image.[309] in july 2023, the new york times introduced connections, in which players identify groups of words that are connected by a common property.[310] in april, the times introduced digits, a game that required using operations on different values to reach a set number; digits was shut down in august.[311] in march 2024, the new york times released strands, a themed word search.[312] in january 2022, the new york times company acquired wordle, a word game developed by josh wardle in 2021, at a valuation in the "low seven figures".[313] the acquisition was proposed by david perpich, a member of the sulzberger family who proposed the purchase to knight[314] over slack after reading about the game.[315] the washington post purportedly considered acquiring wordle, according to vanity fair.[314] at the 2022 game developers conference, wardle stated that he was overwhelmed by the volume of wordle facsimiles and overzealous monetization practices in other games.[316] concerns over the new york times monetizing wordle by implementing a paywall mounted;[317] wordle is a client side browser game and can be played offline by downloading its webpage.[318] wordle moved to the times's servers and website in february.[319] the game was added to the nyt games application in august,[320] necessitating it be rewritten in the javascript library react.[321] in november, the new york times announced that tracy bennett would be the wordle's editor.[322] the new york times magazine and the boston globe magazine are the only weekly sunday magazines following the washington post magazine's cancellation in december 2022.[323] in february 2016, the new york times introduced a spanish website, the new york times en español.[324] the website, intended to be read on mobile devices, would contain translated articles from the times and reporting from journalists based in mexico city.[325] the times en español's style editor is paulina chavira, who has advocated for pluralistic spanish to accommodate the variety of nationalities in the newsroom's journalists and wrote a stylebook for the new york times en español[326] articles the times intends to publish in spanish are sent to a translation agency and adapted for spanish writing conventions; the present progressive tense may be used for forthcoming events in english, but other tenses are preferable in spanish. the times en español consults the real academia española and fundéu and frequently modifies the use of diacritics   such as using an acute accent for the cártel de sinaloa but not the cartel de medellín   and using the gender neutral pronoun elle.[327] headlines in the new york times en español are not capitalized. the times en español publishes el times, a newsletter led by elda cantú intended for all spanish speakers.[328] in september 2019, the new york times ended the new york times en español's separate operations.[329] a study published in the translator in 2023 found that the times en español engaged in tabloidization.[330] in june 2012, the new york times introduced a chinese website, 纽约时报中文, in response to chinese editions created by the wall street journal and the financial times. conscious to censorship, the times established servers outside of china and affirmed that the website would uphold the paper's journalistic standards; the government of china had previously blocked articles from nytimes.com through the great firewall,[331] and the website was blocked in china until august 2001 after then general secretary jiang zemin met with journalists from the new york times.[332] then foreign editor joseph kahn assisted in the establishment of cn.nytimes.com, an effort that contributed to his appointment as executive editor in april 2022.[333] in october, 纽约时报中文 published an article detailing the wealth of then premier wen jiabao's family. in response, the government of china blocked access to nytimes.com and cn.nytimes.com and references to the times and wen were censored on microblogging service sina weibo.[332] in march 2015, a mirror of 纽约时报中文 and the website for greatfire were the targets for a government sanctioned distributed denial of service attack on github in march 2015, disabling access to the service for several days.[334] chinese authorities requested the removal of the new york times's news applications from the app store in december 2016.[335] as of 2023, the new york times has received 137 pulitzer prizes,[336] the most of any publication.[337] the new york times is considered a newspaper of record in the united states.[l] the times is the largest metropolitan newspaper in the united states;[341] as of 2022, the new york times is the second largest newspaper by print circulation in the united states behind the wall street journal.[196] a study published in science, technology, & human values in 2013 found that the new york times received more citations in academic journals than the american sociological review, research policy, or the harvard law review.[342] with sixteen million unique records, the times is the third most referenced source in common crawl, a collection of online material used in datasets such as gpt 3, behind wikipedia and a united states patent database.[343] the new yorker's max norman wrote in march 2023 that the times has shaped mainstream english usage.[344] in a january 2018 article for the washington post, margaret sullivan stated that the new york times affects the "whole media and political ecosystem".[345] the new york times's nascent success has led to concerns over media consolidation, particularly amid the decline of newspapers. in 2006, economists lisa george and joel waldfogel examined the consequences of the times's national distribution strategy and audience with circulation of local newspapers, finding that local circulation decreased among college educated readers.[346] the effect of the new york times in this manner was observed in the forum of fargo moorhead, the newspaper of record for fargo, north dakota.[347] axios founder jim vandehei opined that the times is "going to basically be a monopoly" in an opinion piece written by then media columnist and former buzzfeed news editor in chief ben smith; in the article, smith cites the strength of the new york times's journalistic workforce, broadening content, and the expropriation of gawker editor in chief choire sicha, recode editor in chief kara swisher, and quartz editor in chief kevin delaney. smith compared the times to the new york yankees during their 1927 season containing murderers' row.[348] the new york times has received criticism for its coverage of the israel hamas war,[349] and the paper has been accused of holding both an anti palestinian[350] and an anti israeli[351] bias. in april 2024, the intercept reported that an internal memorandum from november 2023 instructed journalists to reduce using the terms "genocide" and "ethnic cleansing" and to avoid using the phrase "occupied territory" in the context of palestinian land, "palestine" except in rare circumstances, and the term "refugee camps" to describe areas of gaza despite recognition from the united nations. a spokesperson from the times stated that issuing guidance was standard practice. an analysis by the intercept noted that the new york times described israeli deaths as a massacre nearly sixty times, but had only described palestinian deaths as a massacre once.[352] in december 2023, the new york times published an investigation titled "'screams without words': how hamas weaponized sexual violence on oct. 7", alleging that hamas weaponized sexual and gender based violence during its armed incursion on israel.[353] the investigation was the subject of an article from the intercept questioning the journalistic acumen of anat schwartz, a filmmaker involved in the inquiry who had no prior reporting experience and agreed with a post stating israel should "violate any norm, on the way to victory", doubting the veracity of the opening claim that gal abdush was raped in a timespan disputed by her family, and alleging that the times was pressured by the committee for accuracy in middle east reporting in america.[354] the new york times initiated an inquiry that received criticism from newsguild of new york president susan decarava for purported racial targeting;[355] the times's investigation concluded in ambiguity, but found that journalistic material was handled improperly.[356] the new york times has received criticism regarding its coverage of transgender people. when it published an opinion piece by weill cornell medicine professor richard a. friedman called "how changeable is gender?" in august 2015,[357] vox's german lopez criticized friedman as suggesting that parents and doctors might be right in letting children suffer from severe dysphoria in case something changes down the line, and as implying that conversion therapy may work for transgender children.[358] in february 2023, nearly one thousand[359] current and former times writers and contributors wrote an open letter addressed to standards editor philip b. corbett, criticizing the paper's coverage of transgender, non⁠ ⁠binary, and gender nonconforming people; some of the times' articles have been cited in state legislatures attempting to justify criminalizing gender affirming care.[360] contributors wrote in the open letter that "the times has in recent years treated gender diversity with an eerily familiar mix of pseudoscience and euphemistic, charged language, while publishing reporting on trans children that omits relevant information about its sources."[m] 1234567 nbc newswall street journalpoliticomsnbc/cnbc/telemundobloomberg governmentwashington examinerboston globe/washington blade fox newscbs news radioap radio/pbsvoatimeyahoo newsdaily caller/ewtn cbs newsbloomberg newsmcclatchyny post/thegriowashington timessalem radio/cbncheddar news/hearst tv apnprforeign poolthe hillregionalsnewsmaxgray tv/spectrum news abc newswashington postagence france pressefox business/fox news radiocsm/roll callal jazeeranexstar/scripps news reutersny timesla timesunivision/aurnrealclearpoliticsdaily beast/dallas morning newsbbc/newsweek cnnusa todayabc news radiodaily mailnational journalhuffpostfinancial times/the guardian

abstract. amazon is the titan of twenty first century commerce. in addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. although amazon has clocked staggering growth, it generates meager profits, choosing to price below cost and expand widely instead. through this strategy, the company has positioned itself at the center of e commerce and now serves as essential infrastructure for a host of other businesses that depend upon it. elements of the firm’s structure and conduct pose anticompetitive concerns yet it has escaped antitrust scrutiny. this note argues that the current framework in antitrust specifically its pegging competition to “consumer welfare,” defined as short term price effects is unequipped to capture the architecture of market power in the modern economy. we cannot cognize the potential harms to competition posed by amazon’s dominance if we measure competition primarily through price and output. specifically, current doctrine underappreciates the risk of predatory pricing and how integration across distinct business lines may prove anticompetitive. these concerns are heightened in the context of online platforms for two reasons. first, the economics of platform markets create incentives for a company to pursue growth over profits, a strategy that investors have rewarded. under these conditions, predatory pricing becomes highly rational even as existing doctrine treats it as irrational and therefore implausible. second, because online platforms serve as critical intermediaries, integrating across business lines positions these platforms to control the essential infrastructure on which their rivals depend. this dual role also enables a platform to exploit information collected on companies using its services to undermine them as competitors. this note maps out facets of amazon’s dominance. doing so enables us to make sense of its business strategy, illuminates anticompetitive aspects of amazon’s structure and conduct, and underscores deficiencies in current doctrine. the note closes by considering two potential regimes for addressing amazon’s power: restoring traditional antitrust and competition policy principles or applying common carrier obligations and duties. author. i am deeply grateful to david singh grewal for encouraging me to pursue this project and to barry c. lynn for introducing me to these issues in the first place. for thoughtful feedback at various stages of this project, i am also grateful to christopher r. leslie, daniel markovits, stacy mitchell, frank pasquale, george priest, maurice stucke, and sandeep vaheesan. lastly, many thanks to juliana brint, urja mittal, and the yale law journal staff for insightful comments and careful editing. all errors are my own. “even as amazon became one of the largest retailers in the country, it never seemed interested in charging enough to make a profit. customers celebrated and the competition languished.”  the new york times1 “[o]ne of mr. rockefeller’s most impressive characteristics is patience.”  ida tarbell, a history of the standard oil company2 in amazon’s early years, a running joke among wall street analysts was that ceo jeff bezos was building a house of cards. entering its sixth year in 2000, the company had yet to crack a profit and was mounting millions of dollars in continuous losses, each quarter’s larger than the last. nevertheless, a segment of shareholders believed that by dumping money into advertising and steep discounts, amazon was making a sound investment that would yield returns once e commerce took off. each quarter the company would report losses, and its stock price would rise. one news site captured the split sentiment by asking, “amazon: ponzi scheme or wal mart of the web?”3 sixteen years on, nobody seriously doubts that amazon is anything but the titan of twenty firstcentury commerce. in 2015, it earned $107 billion in revenue,4 and, as of 2013, it sold more than its next twelve online competitors combined.5 by some estimates, amazon now captures 46% of online shopping, with its share growing faster than the sector as a whole.6 in addition to being a retailer, it is a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading provider of cloud server space and computing power. although amazon has clocked staggering growth reporting double digit increases in net sales yearly it reports meager profits, choosing to invest aggressively instead. the company listed consistent losses for the first seven years it was in business, with debts of $2 billion.7 while it exits the red more regularly now,8 negative returns are still common. the company reported losses in two of the last five years, for example, and its highest yearly net income was still less than 1% of its net sales.9 despite the company’s history of thin returns, investors have zealously backed it: amazon’s shares trade at over 900 times diluted earnings, making it the most expensive stock in the standard & poor’s 500.10 as one reporter marveled, “the company barely ekes out a profit, spends a fortune on expansion and free shipping and is famously opaque about its business operations. yet investors . . . pour into the stock.”11 another commented that amazon is in “a class of its own when it comes to valuation.”12 reporters and financial analysts continue to speculate about when and how amazon’s deep investments and steep losses will pay off.13 customers, meanwhile, universally seem to love the company. close to half of all online buyers go directly to amazon first to search for products,14 and in 2016, the reputation institute named the firm the “most reputable company in america” for the third year running.15 in recent years, journalists have exposed the aggressive business tactics amazon employs. for instance amazon named one campaign “the gazelle project,” a strategy whereby amazon would approach small publishers “the way a cheetah would a sickly gazelle.”16 this, as well as other reporting,17 drew widespread attention,18 perhaps because it offered a glimpse at the potential social costs of amazon’s dominance. the firm’s highly public dispute with hachette in 2014 in which amazon delisted the publisher’s books from its website during business negotiations similarly generated extensive press scrutiny and dialogue.19 more generally, there is growing public awareness that amazon has established itself as an essential part of the internet economy,20 and a gnawing sense that its dominance its sheer scale and breadth may pose hazards.21 but when pressed on why, critics often fumble to explain how a company that has so clearly delivered enormous benefits to consumers not to mention revolutionized e commerce in general could, at the end of the day, threaten our markets. trying to make sense of the contradiction, one journalist noted that the critics’ argument seems to be that “even though amazon’s activities tend to reduce book prices, which is considered good for consumers, they ultimately hurt consumers.”22 in some ways, the story of amazon’s sustained and growing dominance is also the story of changes in our antitrust laws. due to a change in legal thinking and practice in the 1970s and 1980s, antitrust law now assesses competition largely with an eye to the short term interests of consumers, not producers or the health of the market as a whole; antitrust doctrine views low consumer prices, alone, to be evidence of sound competition. by this measure, amazon has excelled; it has evaded government scrutiny in part through fervently devoting its business strategy and rhetoric to reducing prices for consumers. amazon’s closest encounter with antitrust authorities was when the justice department sued other companies for teaming up against amazon.23 it is as if bezos charted the company’s growth by first drawing a map of antitrust laws, and then devising routes to smoothly bypass them. with its missionary zeal for consumers, amazon has marched toward monopoly by singing the tune of contemporary antitrust. this note maps out facets of amazon’s power. in particular, it traces the sources of amazon’s growth and analyzes the potential effects of its dominance. doing so enables us to make sense of the company’s business strategy and illuminates anticompetitive aspects of its structure and conduct. this analysis reveals that the current framework in antitrust specifically its equating competition with “consumer welfare,” typically measured through short term effects on price and output24 fails to capture the architecture of market power in the twenty first century marketplace. in other words, the potential harms to competition posed by amazon’s dominance are not cognizable if we assess competition primarily through price and output. focusing on these metrics instead blinds us to the potential hazards. my argument is that gauging real competition in the twenty first century marketplace especially in the case of online platforms requires analyzing the underlying structure and dynamics of markets. rather than pegging competition to a narrow set of outcomes, this approach would examine the competitive process itself. animating this framework is the idea that a company’s power and the potential anticompetitive nature of that power cannot be fully understood without looking to the structure of a business and the structural role it plays in markets. applying this idea involves, for example, assessing whether a company’s structure creates certain anticompetitive conflicts of interest; whether it can cross leverage market advantages across distinct lines of business; and whether the structure of the market incentivizes and permits predatory conduct. this is the approach i adopt in this note. i begin by exploring and challenging modern antitrust law’s treatment of market structure. part i gives an overview of the shift in antitrust away from economic structuralism in favor of price theory and identifies how this departure has played out in two areas of enforcement: predatory pricing and vertical integration. part ii questions this narrow focus on consumer welfare as largely measured by prices, arguing that assessing structure is vital to protect important antitrust values. the note then uses the lens of market structure to reveal anticompetitive aspects of amazon’s strategy and conduct. part iii documents amazon’s history of aggressive investing and loss leading, its company strategy, and its integration across many lines of business. part iv identifies two instances in which amazon has built elements of its business through sustained losses, crippling its rivals, and two instances in which amazon’s activity across multiple business lines poses anticompetitive threats in ways that the current framework fails to register. the note then assesses how antitrust law can address the challenges raised by online platforms like amazon. part v considers what capital markets suggest about the economics of amazon and other internet platforms. part vi offers two approaches for addressing the power of dominant platforms: (1) limiting their dominance through restoring traditional antitrust and competition policy principles and (2) regulating their dominance by applying common carrier obligations and duties. one of the most significant changes in antitrust law and interpretation over the last century has been the move away from economic structuralism. in this part, i trace this history by sketching out how a structure based view of competition has been replaced by price theory and exploring how this shift has played out through changes in doctrine and enforcement. broadly, economic structuralism rests on the idea that concentrated market structures promote anticompetitive forms of conduct.25 this view holds that a market dominated by a very small number of large companies is likely to be less competitive than a market populated with many small  and medium sized companies. this is because: (1) monopolistic and oligopolistic market structures enable dominant actors to coordinate with greater ease and subtlety, facilitating conduct like price fixing, market division, and tacit collusion; (2) monopolistic and oligopolistic firms can use their existing dominance to block new entrants; and (3) monopolistic and oligopolistic firms have greater bargaining power against consumers, suppliers, and workers, which enables them to hike prices and degrade service and quality while maintaining profits. this market structure based understanding of competition was a foundation of antitrust thought and policy through the 1960s. subscribing to this view, courts blocked mergers that they determined would lead to anticompetitive market structures. in some instances, this meant halting horizontal deals mergers combining two direct competitors operating in the same market or product line that would have handed the new entity a large share of the market.26 in others, it involved rejecting vertical mergers deals joining companies that operated in different tiers of the same supply or production chain that would “foreclose competition.”27 centrally, this approach involved policing not just for size but also for conflicts of interest like whether allowing a dominant shoe manufacturer to extend into shoe retailing would create an incentive for the manufacturer to disadvantage or discriminate against competing retailers.28 the chicago school approach to antitrust, which gained mainstream prominence and credibility in the 1970s and 1980s, rejected this structuralist view.29 in the words of richard posner, the essence of the chicago school position is that “the proper lens for viewing antitrust problems is price theory.”30 foundational to this view is a faith in the efficiency of markets, propelled by profit maximizing actors. the chicago school approach bases its vision of industrial organization on a simple theoretical premise: “[r]ational economic actors working within the confines of the market seek to maximize profits by combining inputs in the most efficient manner. a failure to act in this fashion will be punished by the competitive forces of the market.”31 while economic structuralists believe that industrial structure predisposes firms toward certain forms of behavior that then steer market outcomes, the chicago school presumes that market outcomes including firm size, industry structure, and concentration levels reflect the interplay of standalone market forces and the technical demands of production.32 in other words, economic structuralists take industry structure as an entryway for understanding market dynamics, while the chicago school holds that industry structure merely reflects such dynamics. for the chicago school, “[w]hat exists is ultimately the best guide to what should exist.”33 practically, the shift from structuralism to price theory had two major ramifications for antitrust analysis. first, it led to a significant narrowing of the concept of entry barriers. an entry barrier is a cost that must be borne by a firm seeking to enter an industry but is not carried by firms already in the industry.34 according to the chicago school, advantages that incumbents enjoy from economies of scale, capital requirements, and product differentiation do not constitute entry barriers, as these factors are considered to reflect no more than the “objective technical demands of production and distribution.”35 with so many “entry barriers . . . discounted, all firms are subject to the threat of potential competition . . . regardless of the number of firms or levels of concentration.”36 on this view, market power is always fleeting and hence antitrust enforcement rarely needed. the second consequence of the shift away from structuralism was that consumer prices became the dominant metric for assessing competition. in his highly influential work, the antitrust paradox, robert bork asserted that the sole normative objective of antitrust should be to maximize consumer welfare, best pursued through promoting economic efficiency.37 although bork used “consumer welfare” to mean “allocative efficiency,”38 courts and antitrust authorities have largely measured it through effects on consumer prices. in 1979, the supreme court followed bork’s work and declared that “congress designed the sherman act as a ‘consumer welfare prescription’”39 a statement that is widely viewed as erroneous.40 still, this philosophy wound its way into policy and doctrine. the 1982 merger guidelines issued by the reagan administration a radical departure from the previous guidelines, written in 1968 reflected this newfound focus. while the 1968 guidelines had established that the “primary role” of merger enforcement was “to preserve and promote market structures conducive to competition,”41 the 1982 guidelines said mergers “should not be permitted to create or enhance ‘market power,’” defined as the “ability of one or more firms profitably to maintain prices above competitive levels.”42 today, showing antitrust injury requires showing harm to consumer welfare, generally in the form of price increases and output restrictions.43 it is true that antitrust authorities do not ignore non price effects entirely. the 2010 horizontal merger guidelines, for example, acknowledge that enhanced market power can manifest as non price harms, including in the form of reduced product quality, reduced product variety, reduced service, or diminished innovation.44 notably, the obama administration’s opposition to one of the largest mergers proposed on its watch comcast/timewarner stemmed from a concern about market access, not prices.45 and by some measures, the federal trade commission (ftc) has alleged potential harm to innovation in roughly one third of merger enforcement actions in the last decade.46 still, it is fair to say that a concern for innovation or non price effects rarely animates or drives investigations or enforcement actions especially outside of the merger context.47 economic factors that are easier to measure such as impacts on price, output, or productive efficiency in narrowly defined markets have become “disproportionately important.”48 two areas of enforcement that this reorientation has affected dramatically are predatory pricing and vertical integration. the chicago school claims that “predatory pricing, vertical integration, and tying arrangements never or almost never reduce consumer welfare.”49 both predatory pricing and vertical integration are highly relevant to analyzing amazon’s path to dominance and the source of its power. below, i offer a brief overview of how the chicago school’s influence has shaped predatory pricing doctrine and enforcers’ views of vertical integration. through the mid twentieth century, congress repeatedly enacted legislation targeting predatory pricing. congress, as well as state legislatures, viewed predatory pricing as a tactic used by highly capitalized firms to bankrupt rivals and destroy competition in other words, as a tool to concentrate control. laws prohibiting predatory pricing were part of a larger arrangement of pricing laws that sought to distribute power and opportunity. however, a controversial supreme court decision in the 1960s created an opening for critics to attack the regime. this intellectual backlash wound its way into supreme court doctrine by the early 1990s in the form of the restrictive “recoupment test.” the earliest predatory pricing case in america was the government’s antitrust suit against standard oil, which reached the supreme court in 1911.50 as detailed in ida tarbell’s exposé, a history of the standard oil company, standard oil routinely slashed prices in order to drive rivals from the market.51 moreover, it cross subsidized: standard oil charged monopoly prices52 in markets where it faced no competitors; in markets where rivals checked the company’s dominance, it drastically lowered prices in an effort to push them out. in its antitrust case against the company, the government argued that a suite of practices by standard oil including predatory pricing violated section 2 of the sherman act. the supreme court ruled for the government and ordered the break up of the company.53 subsequent courts cited the decision for establishing that in the quest for monopoly power, “price cutting became perhaps the most effective weapon of the larger corporation.”54 recognizing the threat of predatory pricing executed by standard oil, congress passed a series of laws prohibiting such conduct. in 1914 congress enacted the clayton act55 to strengthen the sherman act and included a provision to curb price discrimination and predatory pricing.56 the house report stated that section 2 of the clayton act was expressly designed to prohibit large corporations from slashing prices below the cost of production “with the intent to destroy and make unprofitable the business of their competitors” and with the aim of “acquiring a monopoly in the particular locality or section in which the discriminating price is made.”57 congress also acted to protect state “fair trade” laws that further safeguarded against predatory pricing. fair trade legislation granted producers the right to set the final retail price of their goods, limiting the ability of chain stores to discount.58 when the supreme court targeted these “resale price maintenance” efforts, congress stepped up to defend them. after the supreme court in 1911 struck down the form of resale price maintenance enabled by fair trade laws,59 congress in 1937 carved out an exception for state fair trade laws through the miller tydings act.60 when the supreme court in 1951 ruled that producers could enforce minimum prices only against those retailers that had signed contracts agreeing to do so,61 congress responded with a law making minimum prices enforceable against nonsigners too.62 another byproduct of the “fair trade” movement was the robinson patman act of 1936. this act prohibited price discrimination by retailers among producers and by producers among retailers.63 its aim was to prevent conglomerates and large companies from using their buyer power to extract crippling discounts from smaller entities, and to keep large manufacturers and retailers from teaming up against rivals.64 like laws banning predatory pricing, the prohibition against price discrimination effectively curbed the power of size. section 3 of the act addressed predatory pricing directly by making it a crime to sell goods at “unreasonably low prices for the purpose of destroying competition or eliminating a competitor.”65 while predatory price cutting gave rise to civil liability and remedies under the clayton act, the robinson patman act attached criminal penalties as well.66 this series of antitrust laws demonstrates that congress saw predatory pricing as a serious threat to competitive markets. by the mid twentieth century, the supreme court recognized and gave effect to this congressional intent. the court upheld the robinson patman act numerous times, holding that the relevant factors were whether a retailer intended to destroy competition through its pricing practices and whether its conduct furthered that purpose.67 however, not all instances of below cost pricing were illegitimate. liquidating excess or perishable goods, for example, was considered fair game.68 only “sales made below cost without legitimate commercial objective and with specific intent to destroy competition” would clearly violate section 3.69 in other cases, the court distinguished between competitive advantages drawn from superior skill and production, and those drawn from the brute power of size and capital.70 the latter, the court ruled, were illegitimate.71 in utah pie co. v. continental baking co.,the court further reinforced the illegitimacy of predatory pricing.72 utah pie and continental baking were competing manufacturers of frozen dessert pies. a locational advantage gave utah pie cheaper access to the salt lake city market, which it used to price goods below those sold by competitors. other frozen pie manufacturers, including continental, began selling at below cost prices in the salt lake city market, while keeping prices in other regions at or above cost. utah pie brought a predatory pricing case against continental. the supreme court ruled for utah pie, noting that the pricing strategies of its competitors had diverted business from utah pie and compelled the company to further lower its prices, leading to a “declining price structure” overall.73 additionally, continental had admitted to sending an industrial spy to utah pie’s plant to gain information to sabotage utah’s business relations with retailers, a fact the court used to establish “intent to injure.”74 the decision was controversial. continental’s conduct had loosened the grip of a quasi monopolist. prior to the alleged predation, utah pie had controlled 66.5% of the salt lake city market, but following continental’s practices, its share dropped to 45.3%.75 penalizing conduct that had made a market more competitive as predatory seemed perverse. as justice stewart noted in the dissent, “i cannot hold that utah pie’s monopolistic position was protected by the federal antitrust laws from effective price competition . . . .”76 the case presented an opportunity for critics of predatory pricing laws to attack the doctrine as misguided. in an article labeling utah pie “the most anticompetitive antitrust decision of the decade,” ward bowman, an economist at yale law school, argued that the premise of predatory pricing laws was wrong.77 he wrote, “the robinson patman act rests upon a presumption that price discrimination can or might be used as a monopolizing technique. this, as more recent economic literature confirms, is at best a highly dubious presumption.”78 bork, meanwhile, said of the decision, “there is no economic theory worthy of the name that could find an injury to competition on the facts of the case. defendants were convicted not of injuring competition but, quite simply, of competing.”79 he described predatory pricing generally as “a phenomenon that probably does not exist” and the robinson patman act as “the misshapen progeny of intolerable draftsmanship coupled to wholly mistaken economic theory.”80 other scholars, particularly those from the rising chicago school, also weighed in to criticize utah pie.81 as the writings of bowman and bork suggest, the chicago school critique of predatory pricing doctrine rests on the idea that below cost pricing is irrational and hence rarely occurs.82 for one, the critics argue, there was no guarantee that reducing prices below cost would either drive a competitor out or otherwise induce the rival to stop competing. second, even if a competitor were to drop out, the predator would need to sustain monopoly pricing for long enough to recoup the initial losses and successfully thwart entry by potential competitors, who would be lured by the monopoly pricing. the uncertainty of its success, coupled with its guarantee of costs, made predatory pricing an unappealing and therefore highly unlikely strategy.83 as the influence and credibility of these scholars grew, their thinking shaped government enforcement. during the 1970s, for example, the number of robinson patman act cases that the ftc brought dropped dramatically, reflecting the belief that these cases were of little economic concern.84 under the reagan administration, the ftc all but entirely abandoned robinson patman act cases.85 bork’s appointment as solicitor general, meanwhile, gave him a prime platform to influence the supreme court on antitrust issues and enabled him “to train and influence many of the attorneys who would argue before the supreme court for the next generation.”86 the chicago school critique came to shape supreme court doctrine on predatory pricing. the depth and degree of this influence became apparent in matsushita electric industrial co. v. zenith radio corp.87 zenith, an american manufacturer of consumer electronics, brought a sherman act section 1 case accusing japanese firms of conspiring to charge predatorily low prices in the u.s. market in order to drive american companies out of business.88 the supreme court granted certiorari to review whether the third circuit had applied the correct standard in reversing the district court’s grant of summary judgment to matsushita an inquiry that led the court to assess the reasonableness of assuming the alleged predation.89 citing to bork’s the antitrust paradox, the court concluded that predatory pricing schemes were implausible and therefore could not justify a reasonable assumption in favor of zenith. “as [bork’s work] shows, the success of such schemes is inherently uncertain: the short run loss is definite, but the long run gain depends on successfully neutralizing the competition,” the court wrote.90 “for this reason, there is a consensus among commentators that predatory pricing schemes are rarely tried, and even more rarely successful.”91 in addition to adopting bork’s cost benefit framing, the court echoed his concern that price competition could be mistaken for predation. in the antitrust paradox,bork wrote, “the real danger for the law is less that predation will be missed than that normal competitive behavior will be wrongly classified as predatory and suppressed.”92 justice powell, writing for the 5 4 majority in matsushita, echoed bork: “[c]utting prices in order to increase business often is the very essence of competition. thus mistaken inferences in cases such as this one are especially costly, because they chill the very conduct the antitrust laws are designed to protect.”93 although matsushita focused on a narrow issue the summary judgment standard for claims brought under section 1 of the sherman act, which targets coordinationamong parties94 it has been widely influential in monopolization cases, which fall under section 2. in other words, reasoning that originated in one context has wound up in jurisprudence applying to totally distinct circumstances, even as the underlying violations differ vastly.95 subsequent courts applied matsushita’s predatory pricing analysis to cases involving monopolization and unilateral anticompetitive conduct, shaping the jurisprudence of section 2 of the sherman act.96 the lower courts seized on matsushita’s central point: the idea that “predatory pricing schemes are rarely tried, and even more rarely successful.”97 the phrase became a talisman against the existence of predatory pricing, routinely invoked by courts in favor of defendants. in brooke group ltd. v. brown & williamson tobacco corp.,98 the supreme court formalized this premise into a doctrinal test.the case involved cigarette manufacturing, an industry dominated by six firms.99 liggett, one of the six, introduced a line of generic cigarettes, which it sold for about 30% less than the price of branded cigarettes.100 liggett alleged that when it became clear that its generics were diverting business from branded cigarettes, brown & williamson, a competing manufacturer, began selling its own generics at a loss.101 liggett sued, claiming that brown & williamson’s tactic was designed to pressure liggett to raise prices on its generics, thus enabling brown & williamson to maintain high profits on branded cigarettes. a jury returned a verdict in favor of liggett, but the district court judge decided that brown & williamson was entitled to judgment as a matter of law.102 importantly, liggett’s accusation was that brown & williamson would recoup its losses through raising prices on branded cigarettes, not the generics cigarettes it was steeply discounting. building on the analysis introduced in matsushita, the court held that liggett had failed to show that brown & williamson would be able to execute the scheme successfully by recouping its losses through supracompetitive pricing. “evidence of below cost pricing is not alone sufficient to permit an inference of probable recoupment and injury to competition,” justice kennedy wrote for the majority.103 instead, the plaintiff “must demonstrate that there is a likelihood that the predatory scheme alleged would cause a rise in prices above a competitive level that would be sufficient to compensate for the amounts expended on the predation, including the time value of the money invested in it”104 a requirement now known as the “recoupment test.” in placing recoupment at the center of predatory pricing analysis, the court presumed that direct profit maximization is the singular goal of predatory pricing.105 furthermore, by establishing that harm occurs only when predatory pricing results in higher prices, the court collapsed the rich set of concerns that had animated earlier critics of predation, including an aversion to large firms that exploit their size and a desire to preserve local control. instead, the court adopted the chicago school’s narrow conception of what constitutes this harm (higher prices) and how this harm comes about namely, through the alleged predator raising prices on the previously discounted good.106 today, succeeding on a predatory pricing claim requires a plaintiff to meet the brooke group recoupment test by showing that the defendant would be able to recoup its losses through sustaining supracompetitive prices. since the court introduced this recoupment requirement, the number of cases brought and won by plaintiffs has dropped dramatically.107 despite the court’s contention that “predatory pricing schemes are rarely tried and even more rarely successful” a host of research shows that predatory pricing can be “an attractive anticompetitive strategy” and has been used by dominant firms across sectors to squash or deter competition.108 analysis of vertical integration has similarly moved away from structural concerns. vertical integration arises when “two or more successive stages of production and/or distribution of a product are combined under the same control.”109 for most of the last century, enforcers reviewed vertical integration under the same standards as horizontal mergers, as set out in the sherman act, the clayton act, and the federal trade commission act. vertical integration was banned whenever it threatened to “substantially lessen competition”110 or constituted a “restraint of trade”111 or an “unfair method[] of competition.”112 however, the chicago school’s view that vertical mergers are generally pro competitive has led enforcement in this area to significantly drop. serious concern about vertical integration took hold in the wake of the great depression, when both the law and economic theory became sharply critical of the phenomenon.113 thurman arnold, the assistant attorney general in the 1930s, targeted vertical ownership achieved through both mergers and contractual provisions, and by the 1950s courts and antitrust authorities generally viewed vertical integration as anticompetitive. partly because it believed that the supreme court had failed to use existing law to block vertical integration through acquisitions, congress in 1950 amended section 7 of the clayton act to make it applicable to vertical mergers.114 critics of vertical integration primarily focused on two theories of potential harm: leverage and foreclosure. leverage reflects the idea that a firm can use its dominance in one line of business to establish dominance in another. because “horizontal power in one market or stage of production creates ‘leverage’ for the extension of the power to bar entry at another level,” vertical integration combined with horizontal market power “can impair competition to a greater extent than could the exercise of horizontal power alone.”115 foreclosure, meanwhile, occurs when a firm uses one line of business to disadvantage rivals in another line. a flourmill that also owned a bakery could hike prices or degrade quality when selling to rival bakers or refuse to do business with them entirely. in this view, even if an integrated firm did not directly resort to exclusionary tactics, the arrangement would still increase barriers to entry by requiring would be entrants to compete at two levels. when seeking to block vertical combinations or arrangements, the government frequently built its case on one of these theories and, through the 1960s, courts largely accepted them.116 in brown shoe v. united states, for example, the government sought to block a merger between a leading manufacturer and a leading retailer of shoes on the grounds that the tie up would “foreclos[e] competition” and “enhanc[e] brown’s competitive advantage over other producers, distributors and sellers of shoes.”117 the court acknowledged that the clayton act did not “render unlawful all . . . vertical arrangements,” but held that this merger would undermine competition by “foreclos[ing] . . . independent manufacturers from markets otherwise open to them.”118 in other words, the concern was that once merged the combined entity would forbid its retailing arm from stocking shoes made by competing independent manufacturers. calling this form of foreclosure “the primary vice of a vertical merger,”119 the court noted it was also largely inevitable: “every extended vertical arrangement by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer party to the vertical arrangement.”120 in his partial concurrence, justice harlan observed that the deal would enable brown to “turn an independent purchaser into a captive market for its shoes,” thereby “diminish[ing] the available market for which shoe manufacturers compete.”121 the court enjoined the merger.122 another reason courts cited for blocking these arrangements was that vertical deals eliminated potential rivals a recognition of how a merger would reshape industry structure. upholding the ftc’s challenge of ford purchasing an equipment manufacturer, the court noted that before the acquisition, ford had helped check the power of the manufacturers and had a “soothing influence” over prices.123 an outside firm “may someday go in and set the stage for noticeable deconcentration,” the court wrote.124 “while it merely stays near the edge, it is a deterrent to current competitors.”125 in other words, the threat of potential entry by ford the fact that, pre merger, it could have internally expanded into equipment manufacturing had played an important disciplining role. relatedly, the court observed that when a company in a competitive market integrates with a firm in an oligopolistic one, the merger can have “the result of transmitting the rigidity of the oligopolistic structure” of one industry to the other, “thus reducing the chances of future deconcentration” of the market.126 the court required ford to divest the manufacturer.127 in the 1950s while congress, enforcement agencies, and the courts recognized potential threats posed by vertical arrangements chicago school scholars began to cast doubt on the idea that vertical integration has anticompetitive effects.128 by replacing market transactions with administrative decisions within the firm, they argued, vertical arrangements generated efficiencies that antitrust law should promote. and if integration failed to yield efficiencies, then the integrated firm would have no cost advantages over unintegrated rivals, therefore posing no risk of impeding entry. they further argued that vertical deals would not affect a firm’s pricing and output policies, the primary metrics in their analysis. under this framework, only horizontal mergers affect competition, as “[h]orizontal mergers increase market share, but vertical mergers do not.”129 chicago school theory holds that concerns about both leverage and foreclosure are misguided. under the “single monopoly profit theorem,” the amount of profit that a firm can extract from one market is fixed and cannot be expanded through extending into an adjacent market if the two products are used in fixed proportions.130 under this premise, not only does monopoly leveraging not pose any competitive concern, but since it can only be motivated by efficiencies, not profits it is actually procompetitive when it does occur. the traditional worries about foreclosure, bork claimed, were unfounded, as “[p]redation through vertical merger is extremely unlikely.”131 a manufacturer would not favor its retail subsidiary over others unless it was cheaper to do so in which case, bork argued, discriminating would yield efficiencies that the firm would pass on to consumers. additionally, any manufacturer that sought to privilege its own retailer would face “entrants who would arrive in sky darkening swarms for the profitable alternatives.”132 in other words, bork’s take was that vertical integration generally would not create forms of market power that firms could use to hike prices or constrain output. in the rare case that vertical integration did create this form of market power, he believed that it would be disciplined by actual or potential entry by competitors.133 in light of this, antitrust law’s aversion to vertical arrangements was, bork argued, irrational. “the law against vertical mergers is merely a law against the creation of efficiency.”134 with the election of president reagan, this view of vertical integration became national policy. in 1982 and 1984, the department of justice (doj) and the ftc issued new merger guidelines outlining the framework that officials would use when reviewing horizontal deals.135 the 1984 version included guidelines specific to vertical deals.136 part of a sweeping effort to overhaul antitrust enforcement, the new guidelines narrowed the circumstances in which the agencies would challenge vertical mergers.137 although the guidelines acknowledged that vertical mergers could sometimes give rise to competitive concerns, in practice the change constituted a de facto approval of vertical deals. the doj and ftc did not challenge even one vertical merger during president reagan’s tenure.138 although subsequent administrations have continued reviewing vertical mergers, the chicago school’s view that these deals generally do not pose threats to competition has remained dominant.139 rejection of vertical tie ups standard through the 1960s and 1970s is extremely rare today;140 in instances where agencies spot potential harm, they tend to impose conduct remedies or require divestitures rather than block the deal outright.141 the obama administration took this approach with two of the largest vertical deals of the last decade: comcast/nbc and ticketmaster/livenation. in each case, consumer advocates opposed the deal142 and warned that the tie up would concentrate significant power in the hands of a single company,143 which it could use to engage in exclusionary practices, hike prices for consumers, and dock payments to content producers, such as tv screenwriters and musicians. nonetheless, the doj attached certain behavioral conditions and required a minor divestiture, ultimately approving both deals.144 the district court held the consent decrees to be in the public interest. the current framework in antitrust fails to register certain forms of anticompetitive harm and therefore is unequipped to promote real competition a shortcoming that is illuminated and amplified in the context of online platforms and data driven markets. this failure stems both from assumptions embedded in the chicago school framework and from the way this framework assesses competition. notably, the present approach fails even if one believes that antitrust should promote only consumer interests. critically, consumer interests include not only cost but also product quality, variety, and innovation. protecting these long term interests requires a much thicker conception of “consumer welfare” than what guides the current approach. but more importantly, the undue focus on consumer welfare is misguided. it betrays legislative history, which reveals that congress passed antitrust laws to promote a host of political economic ends including our interests as workers, producers, entrepreneurs, and citizens. it also mistakenly supplants a concern about process and structure (i.e., whether power is sufficiently distributed to keep markets competitive) with a calculation regarding outcome (i.e., whether consumers are materially better off). antitrust law and competition policy should promote not welfare but competitive markets. by refocusing attention back on process and structure, this approach would be faithful to the legislative history of major antitrust laws. it would also promote actual competition unlike the present framework, which is overseeing concentrations of power that risk precluding real competition. as discussed in part i, modern doctrine assumes that advancing consumer welfare is the sole purpose of antitrust. but the consumer welfare approach to antitrust is unduly narrow and betrays congressional intent, as evident from legislative history and as documented by a vast body of scholarship. i argue in this note that the rise of dominant internet platforms freshly reveals the shortcomings of the consumer welfare framework and that it should be abandoned. strikingly, the current approach fails even if one believes that consumer interests should remain paramount.focusing primarily on price and output undermines effective antitrust enforcement by delaying intervention until market power is being actively exercised, and largely ignoring whether and how it is being acquired. in other words, pegging anticompetitive harm to high prices and/or lower output while disregarding the market structure and competitive process that give rise to this market power restricts intervention to the moment when a company has already acquired sufficient dominance to distort competition. this approach is misguided because it is much easier to promote competition at the point when a market risks becoming less competitive than it is at the point when a market is no longer competitive. the antitrust laws reflect this recognition, requiring that enforcers arrest potential restraints to competition “in their incipiency.”145 but the chicago school’s hostility to false positives and insistence that market power and high concentration both reflect and generate efficiency146 has undermined this incipiency standard and enfeebled enforcement as a whole. indeed, enforcers have largely abandoned section 2 monopolization claims,147 which by virtue of assessing how a single company amasses and exercises its power traditionally involved an inquiry into structure. by instead relying primarily on price and output effects as metrics of competition, enforcers risk overlooking the structural weakening of competition until it becomes difficult to address effectively, an approach that undermines consumer welfare. indeed, growing evidence shows that the consumer welfare frame has led to higher prices and few efficiencies, failing by its own metrics.148 it arguably has further contributed to a decline in new business growth, resulting in reduced opportunities for entrepreneurs and a stagnant economy.149 the long term interests of consumers include product quality, variety, and innovation factors best promoted through both a robust competitive process and open markets. by contrast, allowing a highly concentrated market structure to persist endangers these long term interests, since firms in uncompetitive markets need not compete to improve old products or tinker to create news ones. even if we accept consumer welfare as the touchstone of antitrust, ensuring a competitive process by looking, in part, to how a market is structured ought to be key. empirical studies revealing that the consumer welfare frame has resulted in higher prices failing even by its own terms support the need for a different approach. legislative history reveals that the idea that “congress designed the sherman act as a ‘consumer welfare prescription’”150 is wrong.151 congress enacted antitrust laws to rein in the power of industrial trusts, the large business organizations that had emerged in the late nineteenth century. responding to a fear of concentrated power, antitrust sought to distribute it. in this sense, antitrust was “guided by principles.”152 the law was “for diversity and access to markets; it was against high concentration and abuses of power.”153 more relevant than any single goal was this general vision. when congress passed the sherman act in 1890, senator john sherman called it “a bill of rights, a charter of liberty,” and stressed its importance in political terms.154on the floor of the senate he declared, if we will not endure a king as a political power, we should not endure a king over the production, transportation, and sale of any of the necessities of life. if we would not submit to an emperor, we should not submit to an autocrat of trade, with power to prevent competition and to fix the price of any commodity.”155 in other words, what was at stake in keeping markets open and keeping them free from industrial monarchs was freedom. animating this vision was the understanding that concentration of economic power also consolidates political power, “breed[ing] antidemocratic political pressures.”156 this would occur through enabling a small minority to amass outsized wealth, which they could then use to influence government. but it would also occur by permitting “private discretion by a few in the economic sphere” to “control[] the welfare of all,” undermining individual and business freedom.157 in the lead up to the passage of the sherman act, senator george hoar warned that monopolies were “a menace to republican institutions themselves.”158 this vision encompassed a variety of ends. for one, competition policy would prevent large firms from extracting wealth from producers and consumers in the form of monopoly profits.159 senator sherman, for example, described overcharges by monopolists as “extortion which makes the people poor,”160 while senator richard coke referred to them as “robbery.”161 representative john heard announced that trusts had “stolen millions from the people,”162 and congressman ezra taylor noted that the beef trust “robs the farmer on the one hand and the consumer on the other.”163 in the words of senator james george, “[t]hey aggregate to themselves great enormous wealth by extortion which makes the people poor.”164 notably, this focus on wealth transfers was not solely economic. leading up to the passage of the sherman act, price levels in the united states were stable or slowly decreasing.165 if the exclusive concern had been higher prices, then congress could have focused on those industries where prices were, indeed, high or still rising. the fact that congress chose to denounce unjust redistribution suggests that something else was at play namely, that the public was “angered less by the reduction in their wealth than by the way in which the wealth was extracted.”166 in other words, though the harm was being registered through an economic effect a wealth transfer the underlying source of the grievance was also political.167 another distinct goal was to preserve open markets, in order to ensure that new businesses and entrepreneurs had a fair shot at entry. several congressmen advocated for the federal trade commission act because it would help promote small business. senator james reed expressly noted that congress’s aim in passing the law was to keep markets open to independent firms.168 when discussing the sherman act, senator george lamented that if large scale industry were allowed to grow unchecked, it would “crush out all small men, all small capitalists, all small enterprises.”169 through the 1950s, courts and enforcers applied antitrust laws to promote this variety of aims. while the vigor and tenor of enforcement varied, there was an overarching understanding that antitrust served to protect what justice louis brandeis called “industrial liberty.”170 key to this vision was the recognition that excessive concentrations of private power posed a public threat, empowering the interests of a few to steer collective outcomes. “power that controls the economy should be in the hands of elected representatives of the people, not in the hands of an industrial oligarchy,” justice william o. douglas wrote.171 decentralizing this power would ensure that “the fortunes of the people will not be dependent on the whim or caprice, the political prejudice, the emotional stability of a few self appointed men.”172 as described in part i, chicago school scholars upended this traditional approach, concluding that the only legitimate goal of antitrust is consumer welfare, best promoted through enhancing economic efficiency. notably, some prominent liberals including john kenneth galbraith ratified this idea, championing centralization.173 in the wake of high inflation in the 1970s, ralph nader and other consumer advocates also came to support an antitrust regime centered on lower prices, according with the chicago school’s view.174 by orienting antitrust toward material rather than political ends, both the neoclassical school and its critics effectively embraced concentration over competition.175 focusing antitrust exclusively on consumer welfare is a mistake.176 for one, it betrays legislative intent, which makes clear that congress passed antitrust laws to safeguard against excessive concentrations of economic power. this vision promotes a variety of aims, including the preservation of open markets, the protection of producers and consumers from monopoly abuse, and the dispersion of political177 and economic control.178 secondly, focusing on consumer welfare disregards the host of other ways that excessive concentration can harm us enabling firms to squeeze suppliers and producers, endangering system stability (for instance, by allowing companies to become too big to fail),179 or undermining media diversity,180 to name a few. protecting this range of interests requires an approach to antitrust that focuses on the neutrality of the competitive process and the openness of market structures. c.promoting competition requires analysis of process and structure the chicago school’s embrace of consumer welfare as the sole goal of antitrust is problematic for at least two reasons. first, as described in section ii.b, this idea contravenes legislative history, which shows that congress passed antitrust laws to safeguard against excessive concentrations of private power. it recognized, in turn, that this vision would protect a host of interests, which the sole focus on “consumer welfare” disregards. second, by adopting this new goal, the chicago school shifted the analytical emphasis away from process the conditions necessary for competition and toward an outcome namely, consumer welfare.181 in other words, a concern about structure (is power sufficiently distributed to keep markets competitive?) was replaced by a calculation (did prices rise?).182 this approach is inadequate to promote real competition, a failure that is amplified in the case of dominant online platforms. antitrust doctrine has evolved to reflect this redefinition. the recoupment requirement in predatory pricing, for example, reflects the idea that competition is harmed only if the predator can ultimately charge consumers supracompetitive prices.183 this logic is agnostic about process and structure; it measures the health of competition primarily through effects on price and output. the same is true in the case of vertical integration. the modern view of integration largely assumes away barriers to entry, an element of structure, presuming that any advantages enjoyed by the integrated firm trace back to efficiencies.184 more generally, modern doctrine assumes that market power is not inherently harmful and instead may result from and generate efficiencies. in practice, this presumes that market power is benign unless it leads to higher prices or reduced output again glossing over questions about the competitive process in favor of narrow calculations.185 in other words, this approach equates harm entirely with whether a firm chooses to exercise its market power through price based levers, while disregarding whether a firm has developed this power, distorting the competitive process in some other way.186 but allowing firms to amass market power makes it more difficult to meaningfully check that power when it is eventually exercised. companies may exploit their market power in a host of competition distorting ways that do not directly lead to short term price and output effects. i propose that a better way to understand competition is by focusing on competitive process and market structure.187 by arguing for a focus on market structure, i am not advocating a strict return to the structure conduct performance paradigm. instead, i claim that seeking to assess competition without acknowledging the role of structure is misguided. this is because the best guardian of competition is a competitive process, and whether a market is competitive is inextricably linked to even if not solely determined by how that market is structured. in other words, an analysis of the competitive process and market structure will offer better insight into the state of competition than do measures of welfare. moreover, this approach would better protect the range of interests that congress sought to promote through preserving competitive markets, as described in section ii.b. foundational to these interests is the distribution of ownership and control inescapably a question of structure. promoting a competitive process also minimizes the need for regulatory involvement. a focus on process assigns government the task of creating background conditions, rather than intervening to manufacture or interfere with outcomes.188 in practice, adopting this approach would involve assessing a range of factors that give insight into the neutrality of the competitive process and the openness of the market. these factors include: (1) entry barriers, (2) conflicts of interest, (3) the emergence of gatekeepers or bottlenecks, (4) the use of and control over data, and (5) the dynamics of bargaining power. an approach that took these factors seriously would involve an assessment of how a market is structured and whether a single firm had acquired sufficient power to distort competitive outcomes.189 key questions involving these factors would be: what lines of business is a firm involved in and how do these lines of business interact? does the structure of the market create or reflect dependencies? has a dominant player emerged as a gatekeeper so as to risk distorting competition? attention to structural concerns and the competitive process are especially important in the context of online platforms, where price based measures of competition are inadequate to capture market dynamics, particularly given the role and use of data.190 as internet platforms mediate a growing share of both communications and commercial activity, ensuring that our framework fits how competition actually works in these markets is vital. below i document facets of amazon’s power, trace the source of its growth, and analyze the effects of its dominance. doing so through the lens of structure and process enables us to make sense of the company’s strategy and illuminates anticompetitive aspects of its business. amazon has established dominance as an online platform thanks to two elements of its business strategy: a willingness to sustain losses and invest aggressively at the expense of profits, and integration across multiple business lines.191 these facets of its strategy are independently significant and closely interlinked indeed, one way it has been able to expand into so many areas is through foregoing returns. this strategy pursuing market share at the expense of short term returns defies the chicago school’s assumption of rational, profit seeking market actors. more significantly, amazon’s choice to pursue heavy losses while also integrating across sectors suggests that in order to fully understand the company and the structural power it is amassing, we must view it as an integrated entity. seeking to gauge the firm’s market role by isolating a particular line of business and assessing prices in that segment fails to capture both (1) the true shape of the company’s dominance and (2) the ways in which it is able to leverage advantages gained in one sector to boost its business in another. recently, amazon has started reporting consistent profits, largely due to the success of amazon web services, its cloud computing business.192 its north america retail business runs on much thinner margins, and its international retail business still runs at a loss.193 but for the vast majority of its twenty years in business, losses not profits were the norm. through 2013, amazon had generated a positive net income in just over half of its financial reporting quarters. even in quarters in which it did enter the black, its margins were razor thin, despite astounding growth. the graph below captures the general trend. figure 1. amazon’s profits194 just as striking as amazon’s lack of interest in generating profit has been investors’ willingness to back the company.195 with the exception of a few quarters in 2014, amazon’s shareholders have poured money in despite the company’s penchant for losses. on a regular basis, amazon would report losses, and its share price would soar.196 as one analyst told the new york times, “amazon’s stock price doesn’t seem to be correlated to its actual experience in any way.”197 analysts and reporters have spilled substantial ink seeking to understand the phenomenon. as one commentator joked in a widely circulated post, “amazon, as best i can tell, is a charitable organization being run by elements of the investment community for the benefit of consumers.”198 in some ways, the puzzlement is for naught: amazon’s trajectory reflects the business philosophy that bezos outlined from the start. in his first letter to shareholders, bezos wrote: we believe that a fundamental measure of our success will be the shareholder value we create over the long term. this value will be a direct result of our ability to extend and solidify our current market leadership position . . . . we first measure ourselves in terms of the metrics most indicative of our market leadership: customer and revenue growth, the degree to which our customers continue to purchase from us on a repeat basis, and the strength of our brand. we have invested and will continue to invest aggressively to expand and leverage our customer base, brand, and infrastructure as we move to establish an enduring franchise.199 in other words, the premise of amazon’s business model was to establish scale. to achieve scale, the company prioritized growth. under this approach, aggressive investing would be key, even if that involved slashing prices or spending billions on expanding capacity, in order to become consumers’ one stop shop. this approach meant that amazon “may make decisions and weigh tradeoffs differently than some companies,” bezos warned.200 “at this stage, we choose to prioritize growth because we believe that scale is central to achieving the potential of our business model.”201 the insistent emphasis on “market leadership” (bezos relies on the term six times in the short letter)202 signaled that amazon intended to dominate. and, by many measures, amazon has succeeded. its year on year revenue growth far outpaces that of other online retailers.203 despite efforts by big box competitors like walmart, sears, and macy’s to boost their online operations, no rival has succeeded in winning back market share.204 despite these losses or perhaps because of them prime is considered crucial to amazon’s growth as an online retailer. according to analysts, customers increase their purchases from amazon by about 150% after they become prime members.213 prime members comprise 47% of amazon’s u.s. shoppers.214 amazon prime members also spend more on the company’s website an average of $1,500 annually, compared to $625 spent annually by non prime members.215 business experts note that by making shipping free, prime “successfully strips out paying for . . . the leading consumer burden of online shopping.”216 moreover, the annual fee drives customers to increase their amazon purchases in order to maximize the return on their investment.217 as a result, amazon prime users are both more likely to buy on its platform and less likely to shop elsewhere. “[sixty three percent] of amazon prime members carry out a paid transaction on the site in the same visit,” compared to 13% of non prime members.218 for walmart and target, those figures are 5% and 2% respectively.219 one study found that less than 1% of amazon prime members are likely to consider competitor retail sites in the same shopping session. non prime members, meanwhile, are eight times more likely than prime members to shop between both amazon and target in the same session.220 in the words of one former amazon employee who worked on the prime team, “it was never about the $79. it was really about changing people’s mentality so they wouldn’t shop anywhere else.”221 in that regard, amazon prime seems to have proven successful.222 in 2014, amazon hiked its prime membership fee to $99.223 the move prompted some consumer ire, but 95% of prime members surveyed said they would either definitely or probably renew their membership regardless,224 suggesting that amazon has created significant buy in and that no competitor is currently offering a comparably valuable service at a lower price. it may, however, also reveal the general stickiness of online shopping patterns. although competition for online services may seem to be “just one click away,” research drawing on behavioral tendencies shows that the “switching cost” of changing web services can, in fact, be quite high.225 no doubt, amazon’s dominance stems in part from its first mover advantage as a pioneer of large scale online commerce. but in several key ways, amazon has achieved its position through deeply cutting prices and investing heavily in growing its operations both at the expense of profits. the fact that amazon has been willing to forego profits for growth undercuts a central premise of contemporary predatory pricing doctrine, which assumes that predation is irrational precisely because firms prioritize profits over growth.226 in this way, amazon’s strategy has enabled it to use predatory pricing tactics without triggering the scrutiny of predatory pricing laws. another key element of amazon’s strategy and one partly enabled by its capacity to thrive despite posting losses has been to expand aggressively into multiple business lines.227 in addition to being a retailer, amazon is a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading provider of cloud server space and computing power.228 for the most part, amazon has expanded into these areas by acquiring existing firms.229 involvement in multiple, related business lines means that, in many instances, amazon’s rivals are also its customers. the retailers that compete with it to sell goods may also use its delivery services, for example, and the media companies that compete with it to produce or market content may also use its platform or cloud infrastructure. at a basic level this arrangement creates conflicts of interest, given that amazon is positioned to favor its own products over those of its competitors. critically, not only has amazon integrated across select lines of business, but it has also emerged as central infrastructure for the internet economy. reports suggest this was part of bezos’s vision from the start. according to early amazon employees, when the ceo founded the business, “his underlying goals were not to build an online bookstore or an online retailer, but rather a ‘utility’ that would become essential to commerce.”230 in other words, bezos’s target customer was not only end consumers but also other businesses. amazon controls key critical infrastructure for the internet economy in ways that are difficult for new entrants to replicate or compete against. this gives the company a key advantage over its rivals: amazon’s competitors have come to depend on it. like its willingness to sustain losses, this feature of amazon’s power largely confounds contemporary antitrust analysis, which assumes that rational firms seek to drive their rivals out of business. amazon’s game is more sophisticated. by making itself indispensable to e commerce, amazon enjoys receiving business from its rivals, even as it competes with them. moreover, amazon gleans information from these competitors as a service provider that it may use to gain a further advantage over them as rivals enabling it to further entrench its dominant position. amazon now controls 46% of all e commerce in the united states.231 not only is it the fastest growing major retailer, but it is also growing faster than e commerce as a whole.232 in 2010, it employed 33,700 workers; by june 2016, it had 268,900.233 it is enjoying rapid success even in sectors that it only recently entered. for example, the company “is expected to triple its share of the u.s. apparel market over the next five years.”234 its clothing sales recently rose by $1.1 billion even as online sales at the six largest u.s. department stores fell by over $500 million.235 these figures alone are daunting, but they do not capture the full extent of amazon’s role and power. amazon’s willingness to sustain losses and invest aggressively at the expense of profits, coupled with its integration across sectors, has enabled it to establish a dominant structural role in the market. in the sections that follow, i describe several examples of amazon’s conduct that illustrate how the firm has established structural dominance.236 these examples its handling of e books and its battle with an independent online retailer focus on predatory pricing practices. these cases suggest ways in which amazon may benefit from predatory pricing even if the company does not raise the price of the goods on which it lost money. the other examples, fulfillment by amazon and amazon marketplace, demonstrate how amazon has become an infrastructure company, both for physical delivery and e commerce, and how this vertical integration implicates market competition. these cases highlight how amazon can use its role as an infrastructure provider to benefit its other lines of business. these examples also demonstrate how high barriers to entry may make it difficult for potential competitors to enter these spheres, locking in amazon’s dominance for the foreseeable future. all four of these accounts raise concerns about contemporary antitrust’s ability to register and address the anticompetitive threat posed by amazon and other dominant online platforms. amazon entered the e book market by pricing bestsellers below cost. although this strategic pricing helped amazon to establish dominance in the e book market, the government perceived amazon’s cost cutting as benign, focusing on the profitability of e books in the aggregate and characterizing the company’s pricing of bestsellers as “loss leading” rather than predatory pricing. this failure to recognize amazon’s conduct as anticompetitive stems from a misunderstanding of online markets generally and of amazon’s strategy specifically. additionally, analyzing the issues raised in this case suggests that amazon could recoup its losses through means not captured by current antitrust analysis. in late 2007, amazon rolled out the kindle, its e reading device, and launched a new e book library.237 before introducing the device, ceo jeff bezos had decided to price bestseller e books at $9.99,238 significantly below the $12 to $30 that a new hardback typically costs.239 critically, the wholesale price at which amazon was buying books from publishers had not dropped; it was instead choosing to price e books below cost.240 analysts estimate that amazon sold the kindle device below manufacturing cost too.241 bezos’s plan was to dominate the e book selling business in the way that apple had become the go to platform for digital music.242 the strategy worked: through 2009, amazon dominated the e book retail market, selling around 90% of all e books.243 publishers, fearing that amazon’s $9.99 price point for e books would permanently drive down the price that consumers were willing to pay for all books, sought to wrest back some control. when the opportunity came to partner with apple to sell e books through the ibookstore store, five of the “big six” publishers introduced agency pricing, whereby publishers would set the final retail price and apple would get a 30% cut.244 after securing this deal, macmillan, one of the “big six,” demanded that amazon, too, adopt this pricing model.245 though it initially refused and delisted macmillan’s books,246 amazon ultimately relented, explaining to readers that “we will have to capitulate and accept macmillan’s terms because macmillan has a monopoly over their own titles.”247 other publishers followed suit, halting amazon’s ability to price e books at $9.99.248 in 2012, the doj sued the publishers and apple for colluding to raise e book prices.249 in response to claims that the doj was going after the wrong actor given that it was amazon’s predatory tactics that drove the publishers and apple to join forces the doj investigated amazon’s pricing strategies and found “persuasive evidence lacking” to show that the company had engaged in predatory practices.250 according to the government, “from the time of its launch, amazon’s e book distribution business has been consistently profitable, even when substantially discounting some newly released and bestselling titles.”251 judge cote, who presided over the district court trial, refrained from affirming the government’s conclusion.252 still, the government’s argument illustrates the dominant framework that courts and enforcers use to analyze predation and how it falls short. specifically, the government erred by analyzing the profitability of amazon’s e book business in the aggregate and by characterizing the conduct as “loss leading” rather than potentially predatory pricing.253 these missteps suggest a failure to appreciate two critical aspects of amazon’s practices: (1) how steep discounting by a firm on a platform based product creates a higher risk that the firm will generate monopoly power than discounting on non platform goods and (2) the multiple ways amazon could recoup losses in ways other than raising the price of the same e books that it discounted. on the first point, the government argued that amazon was not engaging in predation because in the aggregate,amazon’s e books business was profitable. this perspective overlooks how heavy losses on particular lines of e books (bestsellers, for example, or new releases) may have thwarted competition, even if the e books business as a whole was profitable. that the doj chose to define the relevant market as e books rather than as specific lines, like bestseller e books reflects a deeper mistake: the failure to recognize how the economics of platform based products differ in crucial ways from non platform goods. 254 as a result, the doj analyzed the e book market as it would the market for physical books. one indication of this failure to appreciate the difference between physical books and e books is that the government and judge cote treated amazon’s below cost pricing as loss leading,255 rather than as predatory pricing.256 the difference between loss leading and predatory pricing is not spelled out in law, but the distinction turns on the nature of the below cost pricing, specifically its intensity and the intent motivating it. judge cote’s use of “loss leading” revealed a view that “amazon’s below cost pricing was (a) selective rather than pervasive, and (b) not intended to generate monopoly power.”257 on this view, amazon’s aim was to trigger additional sales of other products sold by amazon, rather than to drive out competing e book sellers and acquire the power to increase e book prices.258 in other words, because amazon’s alleged short term aim was to sell more e readers and e books rather than to harm its rivals and raise prices its conduct is considered loss leading rather than predatory pricing. what both the doj and the district court missed, however, is the way in which below cost pricing in this instance entrenched and reinforced amazon’s dominance in ways that loss leading by physical retailers does not. unlike with online shopping, each trip to a brick and mortar store is discrete. if, on monday, walmart heavily discounts the price of socks and you are looking to buy socks, you might visit, buy socks, and because you are already there also buy milk. on thursday, the fact that walmart had discounted socks on monday does not necessarily exert any tug; you may return to walmart because you now know that walmart often has good bargains, but the fact that you purchased socks from walmart on monday is not, in itself, a reason to return. internet retail is different. say on monday, amazon steeply discounts the e book version of harper lee’s go set a watchman, and you purchase both a kindle and the e book. on thursday, you would be inclined to revisit amazon and not simply because you know it has good bargains. several factors extend the tug. for one, amazon, like other e book sellers, has used a scheme known as “digital rights management” (drm), which limits the types of devices that can read certain e book formats.259 compelling readers to purchase a kindle through cheap e books locks them into future e book purchases from amazon.260 moreover, buying or even browsing e books on amazon’s platform hands the company information about your reading habits and preferences, data the company uses to tailor recommendations and future deals.261 replicated across a few more purchases, amazon’s lock in becomes strong. it becomes unlikely that a reader will then purchase a nook and switch to buying e books through barnes & noble, even if that company is slashing prices. put differently, loss leading pays higher returns with platform based e commerce and specifically with digital products like e books than it does with brick and mortar stores. the marginal value of the first sale and early sales in general is much higher for e books than for print books because there are lock in effects at play, due both to technical design and the possibilities for and value of personalization. by treating e commerce and digital goods the same as physical stores and goods, both the government and judge cote missed the anticompetitive implications of amazon’s below cost pricing. though the immediate effect of amazon’s pricing of bestseller e books may have been to sell more e books generally, that tactic has also positioned amazon to dominate the market in a way that sets it up to raise future prices. in this context, the traditional distinction between loss leading and predatory pricing is strained. instead of recognizing that the economics of platforms meant that below cost pricing on a platform hosted good would tend to facilitate long term dominance, the government took comfort that the industry was “dynamic and evolving” and concluded that the “presence and continued investment by technology giants, multinational book publishers, and national retailers in e books businesses” rendered an amazon dominated market unlikely.262 yet amazon’s early lead has, in fact, translated to long term dominance. it controls around 65% of the e book market today,263 while its share of the e reader market hovers around 74%.264 players that appeared up and coming even a few years ago are now retreating from the market. sony closed its u.s. reader store and is no longer introducing new e readers to the u.s. market.265 barnes & noble, meanwhile, has slashed funding for the nook by 74%.266 the only real e books competitor left standing is apple.267 because the government deflected predatory pricing claims by looking at aggregate profitability, neither the government nor the court reached the question of recoupment. given that under current doctrine whether below cost pricing is predatory or not turns on whether a firm recoups its losses, we should examine how amazon could use its dominance to recoup its losses in ways that are more sophisticated than what courts generally consider or are able to assess. most obviously, amazon could earn back the losses it generated on bestseller e books by raising prices of either particular lines of e books or e books as a whole. this intra product market form of recoupment is what courts look for. however, it remains unclear whether amazon has hiked e book prices because, as the new york times noted, “[i]t is difficult to comprehensively track the movement of prices on amazon,” which means that any evidence of price trends is “anecdotal and fragmentary.”268 as amazon customers can attest, amazon’s prices fluctuate rapidly and with no explanation.269 this underscores a basic challenge of conducting recoupment analysis with amazon: it may not be apparent when and by how much amazon raises prices. online commerce enables amazon to obscure price hikes in at least two ways: rapid, constant price fluctuations and personalized pricing.270 constant price fluctuations diminish our ability to discern pricing trends. by one account, amazon changes prices more than 2.5 million times each day.271 amazon is also able to tailor prices to individual consumers, known as first degree price discrimination. there is no public evidence that amazon is currently engaging in personalized pricing,272 but online retailers generally are devoting significant resources to analyzing how to implement it.273 a major topic of discussion at the 2014 national retail federation annual convention, for example, was how to introduce discriminatory pricing without triggering consumer backlash.274 one mechanism discussed was highly personalized coupons sent at the point of sale, which would avoid the need to show consumers different prices but would still achieve discriminatory pricing.275 if retailers including amazon implement discriminatory pricing on a wide scale, each individual would be subject to his or her own personal price trajectory, eliminating the notion of a single pricing trend. it is not clear how we would measure price hikes for the purpose of recoupment analysis in that scenario. there would be no obvious conclusions if some consumers faced higher prices while others enjoyed lower ones. but given the magnitude and accuracy of data that amazon has collected on millions of users, tailored pricing is not simply a hypothetical power.276 discerning whether and by how much amazon raises book prices will be more difficult than the matsushita or brooke group courts could have imagined.277 it is true that brick and mortar stores also collect data on customer purchasing habits and send personalized coupons. but the types of consumer behavior that internet firms can access how long you hover your mouse on a particular item, how many days an item sits in your shopping basket before you purchase it, or the fashion blogs you visit before looking for those same items through a search engine is uncharted ground. the degree to which a firm can tailor and personalize an online shopping experience is different in kind from the methods available to a brick and mortar store precisely because the type of behavior that online firms can track is far more detailed and nuanced. and unlike brick and mortar stores where everyone at least sees a common price (even if they go on to receive discounts) internet retail enables firms to entirely personalize consumer experiences, which eliminates any collective baseline from which to gauge price increases or decreases. the decision of whichproduct market in which amazon may choose to raise prices is also an open question and one that current predatory pricing doctrine ignores. courts generally assume that a firm will recoup by increasing prices on the same goods on which it previously lost money. but recoupment across markets is also available as a strategy, especially for firms as diversified across products and services as amazon. reporting suggests the company did just this in 2013, by hiking prices on scholarly and small press books and creating the risk of a “two tier system where some books are priced beyond an audience’s reach.”278 although amazon may be recouping its initial losses in e books through markups on physical books, this cross market recoupment is not a scenario that enforcers or judges generally consider.279 one possible reason for this neglect is that chicago school scholarship, which assumes recoupment in single product markets is unlikely, also holds recoupment in multi product scenarios to be implausible.280 although current predatory pricing doctrine focuses only on recoupment through raising prices for consumers, amazon could also recoup its losses by imposing higher fees on publishers. large book retailer chains like barnes & noble have long used their market dominance to charge publishers for favorable product placement, such as displays in a storefront window or on a prominent table.281 amazon’s dominance in the e book market has enabled it to demand similar fees for even the most basic of services. for example, when renewing its contract with hachette last year, amazon demanded payments for services including the pre order button, personalized recommendations, and an amazon employee assigned to the publisher.282 in the words of one person close to the negotiations, amazon “is very inventive about what we’d call standard service. . . . they’re teasing out all these layers and saying, ‘if you want that service, you’ll have to pay for it.’”283 by introducing fees on services that it previously offered for free, amazon has created another source of revenue. amazon’s power to demand these fees and recoup some of the losses it sustained in below cost pricing stems from dominance partly built through that same below cost pricing. the fact that amazon has itself vertically integrated into book publishing and hence can promote its own content may give it additional leverage to hike fees. any publisher that refuses could see amazon favor its own books over the publisher’s, reflecting a conflict of interest i discuss further in section iv.d. it is not uncommon for half of the titles on amazon’s kindle bestseller list to be its own.284 while not captured by current antitrust doctrine, the pressure amazon puts on publishers merits concern.285 for one, consolidation among book sellers partly spurred by amazon’s pricing tactics and demands for better terms from publishers has also spurred consolidation among publishers. consolidation among publishers last reached its heyday in the 1990s as publishing houses sought to bulk up in response to the growing clout of borders and barnes & noble and by the early 2000s, the industry had settled into the “big six.”286 this trend has cost authors and readers alike, leaving writers with fewer paths to market and readers with a less diverse marketplace. since amazon’s rise, the major publishers have merged further thinning down to five, with rumors of more consolidation to come.287 second, the increasing cost of doing business with amazon is upending the publishers’ business model in ways that further risk sapping diversity. traditionally, publishing houses used a cross subsidization model whereby they would use their best sellers to subsidize weightier and riskier books requiring greater upfront investment.288 in the face of higher fees imposed by amazon, publishers say they are less able to invest in a range of books. in a recent letter to doj, a group of authors wrote that amazon’s actions have “extract[ed] vital resources from the [book] industry in ways that lessen the diversity and quality of books.”289 the authors noted that publishers have responded to amazon’s fees by both publishing fewer titles and focusing largely on books by celebrities and bestselling authors.290 the authors also noted, “readers are presented with fewer books that espouse unusual, quirky, offbeat, or politically risky ideas, as well as books from new and unproven authors. this impoverishes america’s marketplace of ideas.”291 amazon’s conduct would be readily cognizable as a threat under the pre chicago school view that predatory pricing laws specifically and antitrust generally promoted a broad set of values. under the predatory pricing jurisprudence of the early and mid twentieth century, harm to the diversity and vibrancy of ideas in the book market may have been a primary basis for government intervention. the political risks associated with amazon’s market dominance also implicate some of the major concerns that animate antitrust laws. for instance, the risk that amazon may retaliate against books that it disfavors either to impose greater pressure on publishers or for other political reasons raises concerns about media freedom. given that antitrust authorities previously considered diversity of speech and ideas a factor in their analysis, amazon’s degree of control, too, should warrant concern. even within the narrower “consumer welfare” framework, amazon’s attempts to recoup losses through fees on publishers should be understood as harmful. a market with less choice and diversity for readers amounts to a form of consumer injury. that doj ignored this concern in its suit against apple and the publishers suggests that its conception of predatory pricing fails to captureoverlooks the full suite of harms that amazon’s actions may cause.292 amazon’s below cost pricing in the e book market which enabled it to capture 65% of that market,293 a sizable share by any measure strains predatory pricing doctrine in several ways. first, amazon is positioned to recoup its losses by raising prices on less popular or obscure e books, or by raising prices on print books. in either case, amazon would be recouping outside the original market where it sustained losses (bestseller e books), so courts are unlikely to look for or consider these scenarios. additionally, constant fluctuations in prices and the ability to price discriminate enable amazon to raise prices with little chance of detection. lastly, amazon could recoup its losses by extracting more from publishers, who are dependent on its platform to market both e books and print books. this may diminish the quality and breadth of the works that are published, but since this is most directly a supplier side rather than buyer side harm, it is less likely that a modern court would consider it closely. the current predatory pricing framework fails to capture the harm posed to the book market by amazon’s tactics. in addition to using below cost pricing to establish a dominant position in e books, amazon has also used this practice to put pressure on and ultimately acquire a chief rival. this history challenges contemporary antitrust law’s assumption that predatory pricing cannot be used to establish dominance. while theory may predict that entry barriers for online retail are low, this account shows that in practice significant investment is needed to establish a successful platform that will attract traffic. finally, amazon’s conduct suggests that psychological intimidation can discourage new entry that would challenge a dominant player’s market power. in 2008, quidsi was one of the world’s fastest growing e commerce companies.294 it oversaw several subsidiaries: diapers.com (focused on baby care), soap.com (focused on household essentials), and beautybar.com (focused on beauty products). amazon expressed interest in acquiring quidsi in 2009, but the company’s founders declined amazon’s offer.295 eventually, amazon’s below cost pricing started eating into diapers.com’s growth, and it “slowed under amazon’s pricing pressure.”301 investors, meanwhile, “grew wary of pouring more money” into quidsi, given the challenge from amazon.302 struggling to keep up with amazon’s pricing war, quidsi’s owners began talks with walmart about potentially selling the business. amazon intervened and made an aggressive counteroffer.303 although walmart offered a higher final bid, “the quidsi executives stuck with amazon, largely out of fear.”304 the ftc reviewed the amazon quidsi deal and decided that it did not trigger anticompetitive concerns.305 through its purchase of quidsi, amazon eliminated a leading competitor in the online sale of baby products. amazon achieved this by slashing prices and bleeding money,306 losses that its investors have given it a free pass to incur and that a smaller and newer venture like quidsi, by contrast, could not maintain. after completing its buy up of a key rival and seemingly losing hundreds of millions of dollars in the process amazon went on to raise prices. in november 2011, a year after buying out quidsi, amazon shut down new memberships in its amazon mom program.307 though the company has since reopened the program, it has continued to scale back the discounts and generous shopping terms of the original offer. as of february 2012, discounts that had previously been 30% were reduced to 20%, and the one year of free prime membership was cut to three months.308 in november 2014, the company hiked prices further: members purchasing more than four items in a month would no longer receive the general 20% discount, and the 20% discount on baby wipes one of the program’s top selling products was cut to 5%.309 summarizing the series of changes, one journalist observed, “the amazon mom program has become much less generous than it was when it was introduced in 2010.”310 in online forums where consumers expressed frustrations with the changes, several users said they would be taking their business from amazon and returning to diapers.com which, other users pointed out, was no longer possible.311 through its strategy, amazon now holds a strong position in the baby product market.312 amazon’s conduct runs counter to contemporary predatory pricing thinking, which contends that predation is no path to buying up a competitor. in the antitrust paradox,bork wrote, “[t]he modern law of horizontal mergers makes it all but impossible for the predator to bring the war to an end by purchasing his victim. to accomplish the predator’s purpose, the merger must create a monopoly” and law “would preclude the attainment of the monopoly necessary to make predation profitable.”313 for sectors with low entry costs, bork writes, this strategy is precluded by the constant possibility of reentry by other players. “a shoe retailer can be driven out rapidly, but reentry will be equally rapid.”314 in fields in which entry costs are high, bork argued that exit by competitors is unlikely because management would need to believe that the predation had rendered the value of their facilities negligible. for instance, “[r]ailroading, which involves specialized facilities, is difficult to enter, but the potential victim of predation would be difficult to drive out precisely because railroad facilities are not useful in other industries.”315 does online retailing of baby products resemble shoe retailing or railroading? given the absence of formal barriers, entry should be easy: unlike railroading, selling baby products online requires no heavy investment or fixed costs. however, the economics of online retailing are not quite like traditional shoe retailing. given that attracting traffic and generating sales as an independent online retailer involves steep search costs, the vast majority of online commerce is conducted on platforms, central marketplaces that connect buyers and sellers. thus, in practice, successful entry by a potential diaper retailer carries with it the cost of attempting to build a new online platform, or of creating a brand strong enough to draw traffic from an existing company’s platform. as several commentators have observed, the practical barriers to successful and sustained entry as an online platform are very high, given the huge first mover advantages stemming from data collection and network effects.316 moreover, the high exit barriers that bork assumes for railroads namely, that they would have to be convinced their facilities were worth more as scrap than as a railroad do not apply to online platforms. investment in online platforms lies not in physical infrastructure that might be repurposed, but in intangibles like brand recognition. these intangibles can be absorbed by a rival platform or retailer with greater ease than a railroad could take over a competing line.317 in other words, online retailers like quidsi face the high entry barriers of a railroad coupled with the relatively low exit costs typical of brick and mortar retailers a combination that bork, and the courts, failed to consider. courts also tend to discount that predators can use psychological intimidation to keep out the competition.318 amazon’s history with quidsi has sent a clear message to potential competitors namely that, unless upstarts have deep pockets that allow them to bleed money in a head to head fight with amazon, it may not be worth entering the market. even as amazon has raised the price of the amazon mom program, no newcomers have recently sought to challenge it in this sector, supporting the idea that intimidation may also serve as a practical barrier.319 as the world’s largest online retailer, amazon serves as a default starting point for many online shoppers: one study estimates that 44% of u.s. consumers “go[] directly to amazon first to search for products.”320 moreover, the swaths of data that amazon has collected on consumers’ browsing and searching histories can create the same problem that google’s would be competitors encounter: “an insurmountable barrier to entry for new competition.”321 though at least one venture opened shop with an eye to challenging amazon,322 its founders recently sold the firm to walmart323 a move that suggests that the only players positioned to challenge amazon are the existing giants. however, even this strategy has skeptics.324 while established brick and mortar retailers like target have tried to lure online consumers through discounts and low delivery costs,325 amazon remains the major online seller of baby products.326 although amazon established its dominance in this market through aggressive price cutting and selling steeply at a loss, its actions have not triggered predatory pricing claims. in part, this is because prevailing theory assumes per bork’s analysis that market entry is easy enough for new rivals to emerge any time a dominant firm starts charging monopoly prices. in this case, amazon raised prices by cutting back discounts and (at least temporarily) refusing to expand the program. even if a firm viewed the unmet demand as an invitation to enter, several factors would prove discouraging in ways that the existing doctrine does not consider. in theory, online retailing itself has low entry costs since anyone can set up shop online, without significant fixed costs. but in practice, successful entry in online markets is a challenge, requiring significant upfront investment. it requires either building up strong brand recognition to draw users to an independent site, or using an existing platform, such as amazon or ebay, which can present other anticompetitive challenges.327 indeed, most independent retailers choose to sell through amazon328 even when the business relationship risks undermining their business. the fact that no real rival has emerged, even after amazon raised prices, undercuts the assumption embedded in current antitrust doctrine. as its history with quidsi shows, amazon’s willingness to sustain losses has allowed it to engage in below cost pricing in order to establish dominance as an online retailer. amazon has translated its dominance as an online retailer into significant bargaining power in the delivery sector, using it to secure favorable conditions from third party delivery companies. this in turn has enabled amazon to extend its dominance over other retailers by creating the fulfillment by amazon service and establishing its own physical delivery capacity. this illustrates how a company can leverage its dominant platform to successfully integrate into other sectors, creating anticompetitive dynamics. retail competitors are left with two undesirable choices: either try to compete with amazon at a disadvantage or become reliant on a competitor to handle delivery and logistics. as amazon expanded its share of e commerce and enlarged the e commerce sector as a whole it started comprising a greater share of delivery companies’ business. for example, in 2015, ups derived $1 billion worth of business from amazon alone.329 the fact that it accounted for a growing share of these firms’ businesses gave amazon bargaining power to negotiate for lower rates.330 by some estimates, amazon enjoyed a 70% discount over regular delivery prices.331 delivery companies sought to make up for the discounts they gave to amazon by raising the prices they charged to independent sellers,332 a phenomenon recently termed the “waterbed effect.”333 as scholars have described, [t]he presence of a waterbed effect can further distort competition by giving a powerful buyer now a two fold advantage, namely, through more advantageous terms for itself and through higher purchasing costs for its rivals. what then becomes a virtuous circle for the strong buyer ends up as a vicious circle for its weaker competitors.334 to this two fold advantage amazon added a third perk: harnessing the weakness of its rivals into a business opportunity. in 2006, amazon introduced fulfillment by amazon (fba), a logistics and delivery service for independent sellers.335 merchants who sign up for fba store their products in amazon’s warehouses, and amazon packs, ships, and provides customer service on any orders. products sold through fba are eligible for service through amazon prime namely, free two day shipping and/or free regular shipping, depending on the order.336 since many merchants selling on amazon are competing with amazon’s own retail operation and its amazon prime service, using fba offers sellers the opportunity to compete at less of a disadvantage. notably, it is partly because independent sellers faced higher rates from ups and fedex a result of amazon’s dominance that amazon succeeded in directing sellers to its new business venture.337 in many instances, orders routed through fba were still being shipped and delivered by ups and fedex, since amazon relied on these firms.338 but because amazon had secured discounts unavailable to other sellers, it was cheaper for those sellers to go through amazon than to use ups and fedex directly. amazon had used its dominance in the retail sector to create and boost a new venture in the delivery sector, inserting itself into the business of its competitors. amazon has followed up on this initial foray into fulfillment services by creating a logistics empire. building out physical capacity lets amazon further reduce its delivery times, raising the bar for entry yet higher. moreover it is the firm’s capacity for aggressive investing that has enabled it to rapidly establish an extensive network of physical infrastructure. since 2010, amazon has spent $13.9 billion building warehouses, 339 and it spent $11.5 billion on shipping in 2015 alone.340 amazon has opened more than 180 warehouses,341 28 sorting centers, 59 delivery stations that feed packages to local couriers, and more than 65 prime now hubs.342 analysts estimate that the locations of amazon’s fulfillment centers bring it within twenty miles of 31% of the population and within twenty miles of 60% of its core same day base.343 this sprawling network of fulfillment centers each placed in or near a major metropolitan area equips amazon to offer one hour delivery in some locations and same day in others (a service it offers free to members of amazon prime).344 while several rivals initially entered the delivery market to compete with prime shipping, some are now retreating.345 as one analyst noted, “prime has proven exceedingly difficult for rivals to copy.”346 most recently, amazon has also expanded into trucking. last december, it announced it plans to roll out thousands of branded semi trucks, a move that will give it yet more control over delivery, as it seeks to speed up how quickly it can transport goods to customers.347 amazon now owns four thousand truck trailers and has also signed contracts for container ships, planes,348 and drones.349 as of october 2016, amazon had leased at least forty jets.350 former employees say amazon’s long term goal is to circumvent ups and fedex altogether, though the company itself has said it is looking only to supplement its reliance on these firms,not supplant them.351 the way that amazon has leveraged its dominance as an online retailer to vertically integrate into delivery is instructive on several fronts. first, it is a textbook example of how the company can use its dominance in one sphere to advantage a separate line of business. to be sure, this dynamic is not intrinsically anticompetitive. what should prompt concern in amazon’s case, however, is that amazon achieved these cross sector advantages in part due to its bargaining power. because amazon was able to demand heavy discounts from fedex and ups, other sellers faced price hikes from these companies which positioned amazon to capture them as clients for its new business. by overlooking structural factors like bargaining power, modern antitrust doctrine fails to address this type of threat to competitive markets. second, amazon is positioned to use its dominance across online retail and delivery in ways that involve tying, are exclusionary, and create entry barriers.352 that is, amazon’s distortion of the delivery sector in turn creates anticompetitive challenges in the retail sector. for example, sellers who use fba have a better chance of being listed higher in amazon search results than those who do not, which means amazon is tying the outcomes it generates for sellers using its retail platform to whether they also use its delivery business.353 amazon is also positioned to use its logistics infrastructure to deliver its own retail goods faster than those of independent sellers that use its platform and fulfillment service a form of discrimination that exemplifies traditional concerns about vertical integration. and amazon’s capacity for losses and expansive logistics capacities mean that it could privilege its own goods while still offering independent sellers the ability to ship goods more cheaply and quickly than they could by using ups and fedex directly. relatedly, amazon’s expansion into the delivery sector also raises questions about the chicago school’s limited conception of entry barriers. the company’s capacity for losses the permission it has won from investors to show negative profits has been key in enabling amazon to achieve outsized growth in delivery and logistics. matching amazon’s network would require a rival to invest heavily and in order to viably compete offer free or otherwise below cost shipping. in interviews with reporters, venture capitalists say there is no appetite to fund firms looking to compete with amazon on physical delivery.354 in this way, amazon’s ability to sustain losses creates an entry barrier for any firm that does not enjoy the same privilege. third, amazon’s use of prime and fba exemplifies how the company has structurally placed itself at the center of e commerce. already 44% of american online shoppers begin their online shopping on amazon’s platform.355 given the traffic, it is becoming increasingly clear that in order to succeed in e commerce, an independent merchant will need to use amazon’s infrastructure. the fact that amazon competes with many of the businesses that are coming to depend on it creates a host of conflicts of interest that the company can exploit to privilege its own products. the dominant framework in antitrust today fails to recognize the risk that amazon’s dominance poses for discrimination and barriers to new entry. in part, this is because as with the framework’s view of predatory pricing the primary harm that registers within the “consumer welfare” frame is higher consumer prices. on the chicago school’s account, amazon’s vertical integration would only be harmful if and when it chooses to use its dominance in delivery and retail to hike fees to consumers. amazon has already raised prime prices.356 but antitrust enforcers should be equally concerned about the fact that amazon increasingly controls the infrastructure of online commerce and the ways in which it is harnessing this dominance to expand and advantage its new business ventures. the conflicts of interest that arise from amazon both competing with merchants and delivering their wares pose a hazard to competition, particularly in light of amazon’s entrenched position as an online platform. amazon’s conflicts of interest tarnish the neutrality of the competitive process. the thousands of retailers and independent businesses that must ride amazon’s rails to reach market are increasingly dependent on their biggest competitor. as described above, vertical integration in retail and physical delivery may enable amazon to leverage cross sector advantages in ways that are potentially anticompetitive but not understood as such under current antitrust doctrine. analogous dynamics are at play with amazon’s dominance in the provision of online infrastructure, in particular its marketplace for third party sellers. because information about amazon’s practices in this area is limited, this section necessarily will be brief. but to capture fully the anticompetitive features of amazon’s business strategy, it is vital to analyze how vertical integration across internet businesses introduces more sophisticated and potentially more troubling opportunities to abuse cross market advantages and foreclose rivals. the clearest example of how the company leverages its power across online businesses is amazon marketplace, where third party retailers sell their wares. since amazon commands a large share of e commerce traffic, many smaller merchants find it necessary to use its site to draw buyers.357 these sellers list their goods on amazon’s platform and the company collects fees ranging from 6% to 50% of their sales from them.358 more than two million third party sellers used amazon’s platform as of 2015, an increase from the roughly one million that used the platform in 2006.359 the revenue that amazon generates through marketplace has been a major source of its growth: third party sellers’ share of total items sold on amazon rose from 36% in 2011360 to over 50% in 2015.361 third party sellers using marketplace recognize that using the platform puts them in a bind. as one merchant observed, “you can’t really be a high volume seller online without being on amazon, but sellers are very aware of the fact that amazon is also their primary competitor.”362 evidence suggests that their unease is well founded. amazon seems to use its marketplace “as a vast laboratory to spot new products to sell, test sales of potential new goods, and exert more control over pricing.”363 specifically, reporting suggests that “amazon uses sales data from outside merchants to make purchasing decisions in order to undercut them on price” and give its own items “featured placement under a given search.”364 take the example of pillow pets, “stuffed animal pillows modeled after nfl mascots” that a third party merchant sold through amazon’s site.365 for several months, the merchant sold up to one hundred pillows per day.366 according to oneaccount, “just ahead of the holiday season, [the merchant] noticed amazon had itself beg[u]n offering the same pillow pets for the same price while giving [its own] products featured placement on the site.”367 the merchant’s own sales dropped to twenty per day.368 amazon has gone head to head with independent merchants on price, vigorously matching and even undercutting them on products that they had originally introduced. by going directly to the manufacturer, amazon seeks to cut out the independent sellers. in other instances, amazon has responded to popular third party products by producing them itself. last year, a manufacturer that had been selling an aluminum laptop stand on marketplace for more than a decade saw a similar stand appear at half the price. the manufacturer learned that the brand was amazonbasics, the private line that amazon has been developing since 2009.369 as one news site describes it, initially, amazonbasics focused on generic goods like batteries and blank dvds. “then, for several years, the house brand ‘slept quietly as it retained data about other sellers’ successes.’”370 as it now rolls out more amazonbasics products, it is clear that the company has used “insights gleaned from its vast web store to build a private label juggernaut that now includes more than 3,000 products.”371 one study found that in the case of women’s clothing, amazon “began selling 25 percent of the top items first sold through marketplace vendors.”372 it is true that brick and mortar retailers sometimes also introduce private labels and may use other brands’ sales records to decide what to produce. the difference with amazon is the scale and sophistication of the data it collects. whereas brick and mortar stores are generally only able to collect information on actual sales, amazon tracks what shoppers are searching for but cannot find, as well as which products they repeatedly return to, what they keep in their shopping basket, and what their mouse hovers over on the screen.373 in using its marketplace this way, amazon increases sales while shedding risk. it is third party sellers who bear the initial costs and uncertainties when introducing new products; by merely spotting them, amazon gets to sell products only once their success has been tested. the anticompetitive implications here seem clear: amazon is exploiting the fact that some of its customers are also its rivals. the source of this power is: (1) its dominance as a platform, which effectively necessitates that independent merchants use its site; (2) its vertical integration namely, the fact that it both sells goods as a retailer and hosts sales by others as a marketplace; and (3) its ability to amass swaths of data, by virtue of being an internet company. notably, it is this last factor its control over data that heightens the anticompetitive potential of the first two. evidence suggests that amazon is keenly aware of and interested in exploiting these opportunities. for example, the company has reportedly used insights gleaned from its cloud computing service to inform its investment decisions.374 by observing which start ups are expanding their usage of amazon web services, amazon can make early assessments of the potential success of upcoming firms. amazon has used this “unique window into the technology startup world” to invest in several start ups that were also customers of its cloud business.375 how amazon has cross leveraged its advantages across distinct lines of business suggests that the law fails to appreciate when vertical integration may prove anticompetitive. this shortcoming is underscored with online platforms, which both serve as infrastructure for other companies and collect swaths of data that they can then use to build up other lines of business. in this way, the current antitrust regime has yet to reckon with the fact that firms with concentrated control over data can systematically tilt a market in their favor, dramatically reshaping the sector.376 as part iv mapped out, aspects of amazon’s conduct and structure may threaten competition yet fail to trigger scrutiny under the analytical framework presently used in antitrust. in part this reflects the “consumer welfare” orientation of current antitrust laws, as critiqued in part ii. but it also reflects a failure to update antitrust for the internet age. this part examines how online platforms defy and complicate assumptions embedded in current doctrine. specifically, it considers how the economics and business dynamics of online platforms create incentives for companies to pursue growth at the expense of profits, and how online markets and control over data may enable new forms of anticompetitive activity. economists have analyzed extensively how platform markets may pose unique challenges for antitrust analysis.377 specifically, they stress that analysis applicable to firms in single sided markets may break down when applied to two sided markets, given the distinct pricing structures and network externalities.378 these studies often focus on the challenge that two sided platforms face in attracting both sides the classic coordination problem of having to attract buyers without an established line of sellers, and vice versa.379 economists tend to conclude that given the particular challenges of two sided markets380 antitrust should be forgiving of conduct that might otherwise be characterized as anticompetitive.381 legalanalysis of online platforms is comparatively undertheorized. the justice department’s case against microsoft under section 2 of the sherman act, initiated in the 1990s, remains the government’s most significant case involving two sided markets even as platforms have emerged as central arteries in our modern economy. starting in 2011, the ftc pursued an investigation into google, partly in response to allegations that the company uses its dominance as a search engine to cement its advantage and exclude rivals in other lines of business. while the ftc closed the investigation without bringing any charges, leaks later revealed that ftc staff had concluded that google abused its power on three separate counts.382 the european union has brought charges against google for violating antitrust laws.383 for the purpose of competition policy, one of the most relevant factors of online platform markets is that they are winner take all. this is due largely to network effects and control over data, both of which mean that early advantages become self reinforcing. the result is that technology platform markets will yield to dominance by a small number of firms. walmart’s recent purchase of the one start up that had sought to challenge amazon in online retail jet.com illustrates this reality.384 network effects arise when a user’s utility from a product increases as others use the product. since popularity compounds and is reinforcing, markets with network effects often tip towards oligopoly or monopoly.385 amazon’s user reviews, for example, serve as a form of network effect: the more users that have purchased and reviewed items on the platform, the more useful information other users can glean from the site.386 as the fourth circuit has noted, “[o]nce dominance is achieved, threats come largely from outside the dominated market, because the degree of dominance of such a market tends to become so extreme.”387 in this way, network effects act as a form of entry barrier. a platform’s control over data, meanwhile, can also entrench its position.388 access to consumer data enables platforms to better tailor services and gauge demand. involvement across markets, meanwhile, may permit a company to use data gleaned from one market to benefit another business line.389 amazon’s use of marketplace data to advantage its retail sales, as described in section iv.d, is an example of this dynamic. control over data may also make it easier for dominant platforms to enter new markets with greater ease. for example, reports now suggest that amazon may dramatically expand its footprint in the ad business, “leveraging its rich supply of shopping data culled from years of operating a massive e commerce business.”390 in other words, control over data, too, acts as an entry barrier. given that online platforms operate in markets where network effects and control over data solidify early dominance, a company looking to compete in these markets must seek to capture them. the most effective way is to chase market share and drive out one’s rivals even if doing so comes at the expense of short term profits, since the best guarantee of long term profits is immediate growth. due to this dynamic, striving to maximize market share at the expense of one’s rivals makes predation highly rational; indeed, it would be irrational for a business not to frontload losses in order to capture the market. recognizing that enduring early losses while aggressively expanding can lock up a monopoly, investors seem willing to back this strategy. as the introduction and part iii describe, amazon has charted immense growth while investing aggressively both by expanding provision of physical and online infrastructure and by pricing goods below cost. amazon’s stock price has soared despite a history of razor thin or even negative margins. in essence, investors have given amazon a free pass to grow without any pressure to show profits. the firm has used this edge to expand wildly and dominate online commerce. the idea that investors are willing to fund predatory growth in winner take all markets also holds in the case of uber. although the dynamics of the online retail market are distinct from those of ride sharing, uber’s growth trajectory is worth analyzing for general insight into how investors enable platform dominance. in 2015, news reports revealed that uber had an operating loss of $470 million on $415 million in revenue, confirming suspicions that the company has been bleeding money for the sake of achieving steep growth and acquiring market share.391 in china, the company has lost more than $1 billion a year.392 the strategy of aggressive price competition and brazen leadership coupled with soaring growth prompted immediate comparisons to amazon.393 like amazon, uber has drawn immense interest from investors. as of july 2015, its valuation hit nearly $51 billion, equaling the record set by facebook in 2012.394 it recently secured an additional $3.5 billion in investment, bringing its total funds to $13.5 billion a figure “far greater than most companies raise even during an initial public offering,” which uber has avoided.395 one might dismiss this phenomenon as irrational investor exuberance. but another way to read it is at face value: the reason investors value amazon and uber so highly is because they believe these platforms will, eventually, generate huge returns. as one venture capitalist recently remarked, if he had to “put his entire capital in a single company and hold it for the next 10 years,” he would choose amazon. “i don’t see any cleaner monopoly available to buy in the public markets right now.”396 in other words, that these platform companies are undertaking consistent, steep losses and still generating strong investor backing suggests that the markets expect amazon and uber to recoup these losses. while investors have unambiguously endorsed and funded online platforms’ quest to bleed money in their race to draw users, antitrust doctrine fails to acknowledge this strategy. in the past, the supreme court’s analysis has embraced the efficient market hypothesis (emh), the idea that market prices reflect all available information.397 the justice department also acknowledges that market information for example, the financial terms of an acquisition may “be informative regarding competitive effects.”398 applying emh in this instance overwhelmingly suggests that these platforms are positioned to recoup their losses. yet bringing a predatory pricing suit against an online platform would be almost impossible to win in light of the recoupment requirement. strikingly, the market is reflecting a reality that our current laws are unable to detect.399 in addition to overlooking why online platform dynamics make predation especially rational, current doctrine also fails to appreciate how a platform might recoup losses. for one, investor support allows amazon to strategize and operate on a time horizon far longer than what the brooke group or matsushita courts confronted. raising prices in a third year after enduring losses for two is different from engaging in a decade long quest to become the dominant online retailer and provider of internet infrastructure. that longer timeline, meanwhile, makes available more recoupment mechanisms. not only has amazon inaugurated an entire generation into online shopping through its platform, but it has expanded into a suite of additional businesses and amassed significant troves of data on users. this data enables it both to extend its tug over customers through highly tailored personal shopping experiences, and, potentially, to institute forms of price discrimination, as described in section iv.a. both the latitude granted by investors and control over data equip an incumbent platform to recoup losses in ways less obviously connected to the initial form of below cost pricing. these recoupment mechanisms may also be more sophisticated than what a judge or even rivals would be able to spot. this last point becomes even more apparent in the context of uber, whose dynamic pricing has conditioned users not to expect a stable or regular price. while uber claims that its algorithms set prices to reflect real time supply and demand, initial research has found that the company manipulates the availability of both.400 moreover, it routinely gives away discount coupons to select users, effectively charging users different prices, even for the same service at the same time.401 although platforms form the backbone of the internet economy, the way that platform economics implicates existing laws is relatively undertheorized.402 amazon’s conduct suggests that predatory pricing and integration across related business lines are emerging as key paths to establishing dominance aided by the control over data that dominant platforms enjoy. but because current predatory pricing doctrine defines recoupment in overly narrow terms, competitors generally have not been able to make an effective legal case. similarly, because current doctrine largely discounts entry barriers, the anticompetitive effects of vertical integration are difficult to cognize under the existing framework. roadblocks to these claims persist even as amazon’s valuation and share price point to a strong market expectation of recoupment and profits. there are signs that enforcers are becoming more attuned to the special factors that may render current antitrust analysis inadequate to promote competition in internet platform markets. for example, in 2014 the united states successfully challenged a merger between two leading providers of online ratings and reviews platforms. in its complaint, doj acknowledged that data driven industries can be characterized by network effects, which increase switching costs and entry barriers.403 recent comments by ftc commissioner terrell mcsweeny noting that data can act as a barrier to entry and that “competition enforcers can and should assess the competitive implications of data” also suggest that top officials are assessing how to revise their tools and framework for gauging competition in platform markets.404 while this burgeoning recognition is heartening, the unique features of platform markets require a more thorough evaluation of how antitrust is applied. because scale is both vital to platforms’ business model and helps entrench their dominant position, antitrust should reckon with the fact that pursuing growth at the expense of returns is contra to current doctrine highly rational. an approach more attuned to the realities of online platform markets would also recognize the variety of mechanisms that businesses may use to recoup losses, the longer time horizon on which recoupment might occur, and the ways that vertical integration and concentrated control over data may enable new forms of anticompetitive conduct. revising antitrust to reflect the dynamics of online platforms is vital, especially as these companies come to mediate a growing share of communications and commerce. if it is true that the economics of platform markets may encourage anticompetitive market structures, there are at least two approaches we can take. key is deciding whether we want to govern online platform markets through competition, or want to accept that they are inherently monopolistic or oligopolistic and regulate them instead. if we take the former approach, we should reform antitrust law to prevent this dominance from emerging or to limit its scope. if we take the latter approach, we should adopt regulations to take advantage of these economies of scale while neutering the firm’s ability to exploit its dominance. reforming antitrust to address the anticompetitive nature of platform markets could involve making the law against predatory pricing more robust and strictly policing forms of vertical integration that firms can use for anticompetitive ends. importantly, each of these doctrinal areas should be reformulated so that it is sensitive to preserving the competitive process and limiting conflicts of interest that may incentivize anticompetitive conduct. while predatory pricing technically remains illegal, it is extremely difficult to win predatory pricing claims because courts now require proof that the alleged predator would be able to raise prices and recoup its losses.405 revising predatory pricing doctrine to reflect the economics of platform markets, where firms can sink money for years given unlimited investor backing, would require abandoning the recoupment requirement in cases of below cost pricing by dominant platforms. and given that platforms are uniquely positioned to fund predation, a competition based approach might also consider introducing a presumption of predation for dominant platforms found to be pricing products below cost. several reasons militate in favor of a presumption of predation in such cases. first, firms may raise prices years after the original predation, or raise prices on unrelated goods, in ways difficult to prove at trial. second, firms may raise prices through personalized pricing or price discrimination, in ways not easily detectable. third, predation can lead to a host of market harms even if the firm does not raise consumer prices. within a consumer welfare framework, these harms include degradation of product quality and sapping diversity of choice.406 such harms may arise if amazon uses its bargaining power to extract better terms from producers and suppliers, who, in turn, slash investments to meet its demands. within a broader framework which seeks to protect the full range of interests that antitrust laws were enacted to safeguard the potential harms include lower income and wages for employees, lower rates of new business creation, lower rates of local ownership, and outsized political and economic control in the hands of a few.407 introducing a presumption of predation would involve identifying when a price is below cost, a subject of much debate. the supreme court has not addressed the issue, but most appellate courts have said that average variable cost is the right metric.408 this note does not advocate the adoption of one particular measure over others. admittedly, “below cost” is an imperfect filter, especially since what constitutes the relevant cost may vary depending on the industry or cost structure. and the specific definition of “costs” that courts and enforcers adopt may ultimately be less significant if the test for predatory pricing also permits a business justification defense, which would help screen against false positives.409 a business justification defense could cover compensating a buyer for taking the risk of buying a new product, expanding demand to a level which will allow the entrant to achieve scale economies, keeping prices at competitive levels while expecting costs to decline, and matching competition.410 whether a platform is dominant enough to trigger the presumption could be assessed through its market share: those holding greater than, say, 40% of the market in any given line of service (e.g., cloud computing, ride sharing) might be designated “dominant.” rather than measuring this market share nationally, enforcers would look to levels of local control; a ride sharing platform that held only 35% of the national market but 75% of the nashville market would still be considered dominant for the purpose of price cutting in nashville. the current approach to antitrust does not sufficiently account for how vertical integration may give rise to anticompetitive conflicts of interest, nor does it adequately address the way a dominant firm may use its dominance in one sector to advance another line of business. this concern is heightened in the context of vertically integrated platforms, which can use insights generated through data acquired in one sector to undermine rivals in another. potential ways to address this deficiency include scrutinizing mergers that would enable a firm to acquire valuable data and cross leverage it, or introducing a prophylactic ban on mergers that would give rise to conflicts of interest. one way to address the concern about a firm’s capacity to cross leverage data is to expressly include it in merger review.411 under the current approach, only mergers over a particular monetary threshold require agency review412 yet the monetary value of a deal may not be a good proxy for the scope and scale of data at stake. thus, it could make sense for the agencies to automatically review any deal that involves exchange of certain forms (or a certain quantity) of data. data that gave a player deep and direct insight into a competitor’s business operations, for example, might trigger review. under this regime, facebook’s purchases of whatsapp and instagram,413 for instance, would have received greater scrutiny from the antitrust agencies, in recognition of how acquiring data can deeply implicate competition. international transactions granting foreign corporations access to data on u.s. users would also require close review. uber’s decision to sell its china operations to didi chuxing, china’s dominant ride sharing service a deal through which uber will also gain partial ownership over its main u.s. rival, lyft414 is one deal that would prompt scrutiny under this regime.415 a stricter approach would place prophylactic limits on vertical integration by platforms that have reached a certain level of dominance. this would recognize that a platform’s involvement across multiple related lines of business can give rise to conflicts of interest by creating circumstances in which a platform has an incentive to privilege its own business and disadvantage other companies.416 seeking to prevent the industry structures that create these conflicts of interest may prove more effective than policing these conflicts. adopting this prophylactic approach would mean banning a dominant firm from entering any market that it already serves as a platform in other words, from competing directly with the businesses that depend on it.417 in the case of amazon, for example, this prophylactic approach would prohibit the company from running both a dominant retail platform and a dominant platform for third party sellers. these two businesses would have to be separated into different entities, in part to prevent amazon from using insights from its role as a third party host to benefit its retail business, as it reportedly does now.418 this form of prophylactic ban has a long history in banking law.419 a core principle of banking law is the separation of banking and commerce.420 “u.s. commercial banks generally are not permitted to conduct any activities that do not fall within . . . the statutory concept of ‘the business of banking.’”421 more specifically, the bank holding company act of 1956 forbids firms that own or control a u.s. bank from engaging in business activities other than banking or managing banks.422 the main exception is that a bank that qualifies as a “financial holding company” “may conduct broader activities that are ‘financial in nature,’ including securities dealing and insurance underwriting.”423 the policy goals of this regime are worth reviewing because they have analogues in antitrust and competition policy. the main justifications for preserving the separation between banking and commerce have “included the needs to preserve the safety and soundness of insured depository institutions, to ensure a fair and efficient flow of credit to productive [businesses], and to prevent excessive concentration of financial and economic power in the financial sector.”424 all three concerns are linked to the fact that banks serve as critical intermediaries in our economy. the “safety and soundness” concern traces to the idea that our banking system is too vital to be subject to the risks of other business activities.425 the concern about fairness and efficiency centers on the idea that allowing banks to be affiliated with commercial companies may encourage banks to issue credit on the basis of how those lending decisions will affect their commercial affiliates, thereby distorting competition. the practices this may trigger “price discrimination, unfair restriction of access to credit, and other anticompetitive banking practices” would both “hurt the individual commercial companies not affiliated with banks” and undermine national “productivity and growth.”426 lastly, seeking “the prevention of excessive concentration of economic . . . power” among “large financial industrial conglomerates” recognizes that this market power tends to concentrate political power427 while also creating systemic dangers of “too big to fail” conglomerates.428 like bank holding companies, amazon along with a few other dominant platforms now play a crucial role in intermediating swaths of economic activity. amazon itself effectively controls the infrastructure of the internet economy. this level of concentrated control creates hazards analogous to those recognized in banking law. in light of this control, the conflicts of interest created through amazon’s expansion into distinct lines of business are especially troubling. as in banking, enabling an essential intermediating entity to compete with the companies that depend on it creates bad incentives. allowing a vertically integrated dominant platform to pick and choose to whom it makes its services available, and on what terms, has the potential to distort fair competition and the economy as a whole. the other two concerns safety and soundness, and excessive economic and political power are also worth considering. it is true that amazon (and other dominant platforms like uber and google) have extended directly into financial services.429 but its level of involvement in these businesses, at least at the current scale, is unlikely to concentrate financial risk in ways that warrant concern. rather, the systemic risks created by concentration among platforms are of a different kind. one involves concentration of data. that a huge share of consumer retail data may be concentrated within a single company makes hacks of or technical failures by that company all the more disruptive. the 2013 hack into target’s system as a result of which up to 110 million consumers had personal information stolen430 could have been orders of magnitude more disruptive had the hacked entity been amazon. a few instances where amazon web services crashed led to disruptions for scores of other businesses, including netflix.431 lastly, there is sound reason to ask whether permitting amazon to leverage its platform to integrate across business lines hands it undue economic and political power.432 while this subject invites much deeper consideration than what this note will provide, studies interviewing the host of businesses that now depend on amazon retailers, manufacturers, publishers, to name a few reveal that the power it wields is acute.433 history suggests that allowing a single actor to set the terms of the marketplace, largely unchecked, can pose serious hazards. limiting amazon’s reach through prophylactic bans on vertical integration and thereby forcing it to split up its retail and marketplace operation, for example would help mitigate this concern. as described above, one option is to govern dominant platforms through promoting competition, thereby limiting the power that any one actor accrues. the other is to accept dominant online platforms as natural monopolies or oligopolies, seeking to regulate their power instead. in this section, i sketch out two models for this second approach, traditionally undertaken in the form of public utility regulations and common carrier duties. industries that historically have been regulated as utilities include commodities (water, electric power, gas), transportation (railroads, ferries), and communications (telegraphy, telephones).434 critically, a public utility regime aims at eliminating competition: it accepts the benefits of monopoly and chooses instead to limit how a monopoly may use its power.435 although largely out of fashion today, public utility regulations were widely adopted in the early 1900s, as a way of regulating the technologies of the industrial age. animating public utility regulations was the idea that essential network industries such as railroads and electric power should be made available to the public in the form of universal service provided at just and reasonable rates. the progressive movement of the early twentieth century embraced public utility as a way to use government to steer private enterprise toward public ends. it was precisely because essential network industries often required scale that unregulated private control over these sectors often led to abuse of monopoly power. famously, the interstate commerce commission which instituted a form of common carriage for railroads was created partly in response to the abusive conduct of railroads, whose control over an essential facility enabled them to pick winners and losers among farmers.436 in the united states, the first case applying public utility regulations to a private business was munn v. illinois, in which the supreme court upheld state legislation establishing maximum rates that companies could charge for the storage and transportation of grain.437 when one “devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good,” chief justice waite wrote.438 “[w]hen private property is devoted to a public use, it is subject to public regulation.”439 while the decision ushered into doctrine the principle of common carriers, the question of when a business was truly “affected with the public interest” was highly contested.440 most importantly, “public utility was seen as a common, collective enterprise aimed at managing a series of vital network industries that were too important to be left exclusively to market forces.”441 at the level of policy, public utility regulations also enabled “utilities to secure capital at lower cost and to channel it into very large technological systems,” and thus was a way to “socialize the costs of building and operating” a centralized system while “protecting consumers from the potential abuses associated with natural monopoly.”442 given that amazon increasingly serves as essential infrastructure across the internet economy, applying elements of public utility regulations to its business is worth considering.443 the most common public utility policies are (1) requiring nondiscrimination in price and service, (2) setting limits on rate setting, and (3) imposing capitalization and investment requirements. of these three traditional policies, nondiscrimination would make the most sense, while rate setting and investment requirements would be trickier to implement and, perhaps, would less obviously address an outstanding deficiency. a nondiscrimination policy that prohibited amazon from privileging its own goods and from discriminating among producers and consumers would be significant. given that many of the most notable anticompetitive concerns around amazon’s business structure arise from its vertical integration and the resulting conflicts of interest, applying a nondiscrimination scheme would curb the anticompetitive risk. this approach would permit the company to maintain its involvement across multiple lines of business and permit it to enjoy the benefits of scale while mitigating the concern that amazon could unfairly advantage its own business or unfairly discriminate among platform users to gain leverage or market power.444 coupling nondiscrimination with common carrier obligations requiring platforms to ensure open and fair access to other businesses would further limit amazon’s power to use its dominance in anticompetitive ways. rate setting would be trickier. this would involve setting a ceiling on the prices that amazon can charge to both producers and consumers. traditionally, governments used rate setting by identifying a “fair return” that a company deserved for its investment, and then calculated consumer or producer prices accordingly.445 but calculating “fair return” may prove more challenging in the online platform context than it did with traditional public utilities. one potential source of difficulty is that amazon has invested so widely across such a range of projects that it is not clear which the government should peg to “rate of return.” another complicating factor is that part of amazon’s investment in these platforms, so far, hasinvolved losing money through below cost pricing. lastly, it is not clear that imposing capitalization and investment requirements would be necessary. a traditional reason for these policies has been that that the economics of creating and running a utility can be unfavorable, occasionally leading private companies to scrimp on investing and upkeep. in amazon’s case, the company is choosing to expand at a speed and scale that is pushing it into the red but it is not clear that the activity is intrinsically loss generating. that said, a public utility regime could also be justified on the basis that succeeding as an online platform requires incurring heavy losses a model that amazon and uber have pursued. this approach would treat market share chasing losses as a capital investment,446 suggesting the public utility domain may be appropriate. practically, ushering in a public utility regime may prove challenging. public utility regulations suffered an intellectual and policy attack around mid century. for one, critics challenged the theory of natural monopoly as an ongoing rationale for regulation, arguing that rapid economic and technological change would render monopolies temporary problems. second, critics portrayed public utility as a form of corruption, a system in which private industry executives colluded with public officials to enable rent seeking. ultimately these lines of criticism substantially thinned the very concept of public utility.447 the trend was part of a broader effort to idealize competitive markets and assume that nonintervention was almost always superior to interference. although the concept of public utility regulation remains somewhat maligned today, there are signs that a robust movement to apply utility like regulations to services that widely register as public such as the internet can catch wind. the core of the net neutrality debates, for example, involved foundational discussions about how to regulate the communication infrastructure of the twenty first century.448 the net neutrality regime ultimately adopted falls squarely in the common carrier tradition. given amazon’s growing share of e commerce as a whole, and the vast number of independent sellers and producers that now depend on it, applying some form of public utility regulation could make sense. nondiscrimination principles seem especially apt, given that conflicts of interest are a primary hazard of amazon’s vertical power. one approach would apply public utility regulations to all of amazon’s businesses that serve other businesses. another would require breaking up parts of amazon and applying nondiscrimination principles separately; so, for example, to amazon marketplace and amazon web services as distinct entities. that said, given the political challenges of ushering in such a regime, strengthening and reinforcing traditional antitrust principles may in the short run prove most feasible. a lighter version of the regulatory approach would be to apply the essential facilities doctrine. this doctrine imposes sharing requirements on a natural monopoly asset that serves as a necessary input in another market. as sandeep vaheesan explains: this doctrine rests on two basic premises: first, a natural monopolist in one market should not be permitted to deny access to the critical facility to foreclose rivals in adjacent markets; second, the more radical remedy of dividing the facility among multiple owners, while mitigating the threat of monopoly leveraging, could sacrifice important efficiencies.449 unlike the prophylactic ban on integration, the essential facilities route accepts consolidated ownership. but recognizing that a vertically integrated monopolist may deny access to a rival in an adjacent market, the doctrine requires the monopolist controlling the essential facility to grant competitors easy access. this duty has traditionally been enforced through regulatory oversight. while the essential facilities doctrine has not been precisely defined, the four factor test enumerated by the seventh circuit in mci communications corp. v. american telephone & telegraph co. forms the basis of an essential facility claim today.450 under that test, a facility is essential and must be shared if four conditions are met: (1) a monopolist controls the essential facility; (2) a competitor is unable practically or reasonably to duplicate the essential facility; (3) the monopolist is denying use of the facility to a competitor; and (4) providing the facility is feasible.451 the mci court also held that, in order to be deemed essential, the facility must be a “necessary input in a distinct, vertically related market.”452 while the supreme court has never recognized nor articulated a standard for “essential facility,” three supreme court rulings “are seen as having established the functional foundation” for the doctrine.453 in 2004, however, the court disavowed the essential facilities doctrine in dicta,454 leading several commentators to wonder whether it is a dead letter.this decision by the court to effectively reject its prior case law on essential facilities followed challenges on other fronts: notably from congress, enforcement agencies, and academic scholars, all of whom have critiqued the idea of requiring dominant firms to share their property.455 treating aspects of amazon’s business as “essential facilities” seems appropriate, given that factors two, three, and four of the mci test are likely to hold for at least one line of business. the first factor whether amazon is a “monopolist” is subject to the risk that doctrine takes an excessively narrow view of what constitutes a “monopolist,” a definition that may be especially out of touch with dominance in the internet age. essential facilities doctrine has traditionally been applied to infrastructure such as bridges, highways, ports, electrical power grids, and telephone networks.456 given that amazon controls key infrastructure for e commerce, imposing a duty to allow access to its infrastructure on a nondiscriminatory basis make sense. and in light of the company’s current trajectory, we can imagine at least three aspects of its business could eventually raise “essential facilities” like concerns: (1) its fulfillment services in physical delivery; (2) its marketplace platform; and (3) amazon web services. while the essential facilities doctrine has not yet been applied to the internet economy, some proposals have started exploring what this might look like.457 pursuing this regime for online platforms could maintain the benefits of scale while preventing dominant players from abusing their power. internet platforms mediate a large and growing share of our commerce and communications. yet evidence shows that competition in platform markets is flagging, with sectors coalescing around one or two giants.458 the titan in e commerce is amazon a company that has built its dominance through aggressively pursuing growth at the expense of profits and that has integrated across many related lines of business. as a result, the company has positioned itself at the center of internet commerce and serves as essential infrastructure for a host of other businesses that now depend on it. this note argues that amazon’s business strategies and current market dominance pose anticompetitive concerns that the consumer welfare framework in antitrust fails to recognize. in particular, current law underappreciates the risk of predatory pricing and how integration across distinct business lines may prove anticompetitive. these concerns are heightened in the context of online platforms for two reasons. first, the economics of platform markets incentivize the pursuit of growth over profits, a strategy that investors have rewarded. under these conditions predatory pricing becomes highly rational even as existing doctrine treats it as irrational. second, because online platforms serve as critical intermediaries, integrating across business lines positions these platforms to control the essential infrastructure on which their rivals depend. this dual role also enables a platform to exploit information collected on companies using its services to undermine them as competitors. in order to capture these anticompetitive concerns, we should replace the consumer welfare framework with an approach oriented around preserving a competitive process and market structure. applying this idea involves, for example, assessing whether a company’s structure creates anticompetitive conflicts of interest; whether it can cross leverage market advantages across distinct lines of business; and whether the economics of online platform markets incentivizes predatory conduct and capital markets permit it. more specifically, restoring traditional antitrust principles to create a presumption of predation and to ban vertical integration by dominant platforms could help maintain competition in these markets. if, instead, we accept dominant online platforms as natural monopolies or oligopolies, then applying elements of a public utility regime or essential facilities obligations would maintain the benefits of scale while limiting the ability of dominant platforms to abuse the power that comes with it. my argument is part of a larger recent debate about whether the current paradigm in antitrust has failed. though relegated to technocrats for decades, antitrust and competition policy have once again become topics of public concern.459 last year, the wall street journal reported that “[a] growing number of industries in the u.s. are dominated by a shrinking number of companies.”460 in march 2016, the economist declared, “profits are too high. america needs a dose of competition.”461 policy elites, too, have weighed in, issuing policy papers and hosting conferences documenting the decline of competition across the u.s. economy and assessing the resulting harms, including a drop in start up growth and widening economic inequality.462 antitrust even made it into the 2016 presidential campaign: democrats included competition policy in their party platform for the first time since 1988, and in october of the same year, presidential candidate hillary clinton released a detailed antitrust platform, highlighting not only a need for more vigorous enforcement but for an enforcement philosophy that takes into account market structure.463 animating these critiques is not a concern about harms to consumer welfare,464 but the broader set of ills and hazards that a lack of competition breeds. as amazon continues both to deepen its existing control over key infrastructure and to reach into new lines of business, its dominance demands the same scrutiny. to revise antitrust law and competition policy for platform markets, we should be guided by two questions. first, does our legal framework capture the realities of how dominant firms acquire and exercise power in the internet economy? and second, what forms and degrees of power should the law identify as a threat to competition? without considering these questions, we risk permitting the growth of powers that we oppose but fail to recognize. david streitfeld, as competition wanes, amazon cuts back discounts, n.y. times (july 4, 2013), http://www.nytimes.com/2013/07/05/business/as competition wanes amazon  cuts back its discounts.html [http://perma.cc/j48l 8cpz]. ida tarbell, john d. rockefeller: a character study, 25 mcclure’s mag. 227, 245 (1905). amazon: ponzi scheme or wal mart of the web?, slate: moneybox (feb. 8, 2000, 5:52 pm), http://www.slate.com/articles/business/moneybox‌/2000/02‌/amazon_ponzi_scheme‌_or‌_wal‌mart_of_the_web.html [http://perma.cc/xq22 yr9k]. allison enright, amazon sales climb 22% in q4 and 20% in 2015, internet retailer (jan. 28, 2016, 4:06 pm), http://www.internetretailer.com/2016/01/28/amazon sales climb 22  q4‌ and 20 2015 [http://perma.cc/n6s3 xtsb]. shelly banjo & paul ziobro, after decades of toil, web services remain small for many retailers, wall st. j. (aug. 27, 2013, 8:31 pm), http://www.wsj.com/articles‌/sb10001424127887324906304579039101568397122 [http://perma.cc/c8qj jyrn]. olivia lavecchia & stacy mitchell, amazon’s stranglehold: how the company’s tightening grip is stifling competition, eroding jobs, and threatening communities, inst. for loc. self reliance 10 (nov. 2016), http://ilsr.org/wp content/uploads/2016/11‌/ilsr‌_amazon‌report‌_final.pdf [http://perma.cc/a4nd 2ndj]. amazon posts a profit, cnn money (jan. 22, 2002, 3:39 pm), http://money‌.cnn‌.com‌/2002‌/01‌/22/technology/amazon [http://perma.cc/smf3 2uck]. partly due to the success of amazon web services, amazon has recently begun reporting consistent profits. see nick wingfield, amazon’s cloud business lifts its profit to a record, n.y. times (apr. 28, 2016), http://www.nytimes.com/2016/04/29/technology/amazon  q1 earnings.html [http://perma.cc/zhl6 jezu]. though this trend departs from the history on which i focus, my analysis stands given that i am interested in (1) the losses amazon formerly undertook to establish dominant positions in certain sectors, (2) the investor backing and enthusiasm that amazon consistently maintained despite these losses, and (3) whether these facts challenge the assumption embedded in current doctrine that losing money is only desirable (and hence rational) if followed by recoupment. see id. (“amazon often flip flops between showing profits and losses, depending on how aggressively it decides to plow money into big new business bets. investors have granted the company much wider leeway to do so than other technology companies of its size often receive, because of its history of delivering outsize growth.”); see also infra part iii. amazon.com, inc., annual report (form 10 k) 17 (jan. 29, 2016), http://www‌.sec .gov‌/archives‌/edgar/data/1018724/000101872416000172/amzn 20151231x10k.htm [http://‌perma.cc‌‌/gb6a ywzt]. matt krantz, amazon breaks barrier: now most costly stock, usa today (nov. 11, 2015, 5:16 pm), http://www.usatoday.com/story/money/markets/2015/11/11/amazon pe ratio  valuation‌ price/75519460 [http://perma.cc/p5ba 5reb]. meagan clark & angelo young, amazon: nearly 20 years in business and it still doesn’t make money, but investors don’t seem to care, int’l bus. times (dec. 18, 2013, 10:37 am), http://‌http://www.ibtimes.com/amazon nearly 20 years business it still doesnt make money investors  dont seem care 1513368 [http://perma.cc/6nmh hnc4]. krantz, supra note 10 (“amazon’s [price/earnings ratio] isn’t just high relative to the market but the stock is richly valued even if the company achieves the high expectations investors have. amazon’s [price/earnings ratio] is now 14 times higher than the astounding 67% annual growth analysts expect long term from the company. that’s an off the charts valuation using traditional rules of thumb. investors start to think a stock is pricey when its [price/earnings ratio] is just 2 times its expected growth rate.”). see, e.g., farhad manjoo, how amazon’s long game yielded a retail juggernaut, n.y. times (nov. 18, 2015), http://www.nytimes.com/2015/11/19/technology/how amazons  long game yielded a retail juggernaut.html [http://perma.cc/62wg kq67] (“for years, observers have wondered if amazon’s shopping business you know, its main business could ever really work. investors gave mr. bezos enormous leeway to spend billions building out a distribution center infrastructure, but it remained a semi open question if the scale and pace of investments would ever pay off. could this company ever make a whole lot of money selling so much for so little?”). sam moore, amazon commands nearly half of consumers’ first product search, bloom  reach (oct. 6, 2015), http://bloomreach.com/2015/10/amazon commands nearly half of ‌ consumers first product search [http://perma.cc/lvd9 f6w9]. karsten strauss, america’s most reputable companies, 2016: amazon tops the list, forbes (mar. 29, 2016, 12:00 pm), http://www.forbes.com/sites/karstenstrauss/2016/03‌/29‌/americas most reputable companies 2016 amazon tops the list [http://perma.cc‌/mn74  k3nb]; see also melissa hoffmann, amazon has the best consumer perception of any brand, adweek (july 16, 2014), http://www.adweek.com/news/advertising branding‌/ama‌zon  has best consumer perception any brand 158945 [http://perma.cc/fg7w yd7n] (observing that amazon continues to be the best perceived brand despite negative news reports). david streitfeld, a new book portrays amazon as bully, n.y. times: bits blog (oct. 22, 2013, 6:00 am), http://‌bits‌.blogs‌.nytimes.com/2013/10/22/a new book portrays amazon  as bully [http://perma.cc/e893 5een]. an article on amazon’s treatment of workers in its warehouses, see spencer soper, inside amazon’s warehouse, morning call (aug. 17, 2015, 12:13 pm), http://www.mcall.com‌/news‌/local‌/amazon/mc allentown amazon complaints 20110917 story.html [http://‌perma.cc‌/6bxk rpcx], was a finalist for the prestigious loeb award, see morning call’s watchdog journalism recognized, morning call (june 2, 2012), http://articles.mcall.com/2012 06  02/news/mc morning call keystones 20120602_1_amazon warehouse gas explosion key‌stone‌ press awards [http://‌perma.cc‌/9f3e ebzs]. a new york times piece on amazon’s white collar workplace generated more than five million page views, ranking among the times’s most read pieces of 2015. see nick wingfield & ravi somaiya, amazon spars with the times over investigative article, n.y. times (oct. 19, 2015), http://www.nytimes.com/2015/10‌/20‌/business/amazon spars with the times over investigative article.html [http://‌perma.cc‌/vdg6 wzzq]. david streitfeld, supra note 16. see paul krugman, amazon’s monopsony is not o.k., n.y. times (oct. 19, 2014), http://‌www‌.nytimes‌.com/2014/10/20/opinion/paul krugman amazons monopsony is not ok.html [http://‌perma.cc/kj2e 8zpx] (“amazon.com, the giant online retailer, has too much power, and it uses that power in ways that hurt america.”). see farhad manjoo, tech’s ‘frightful 5’ will dominate digital life for foreseeable future, n.y. times (jan. 20, 2016), http://www.nytimes.com/2016/01/21/technology/techs frightful  5 will dominate digital life for foreseeable future.html [http://perma.cc/yh6n kg6j] (“by just about every measure worth collecting, these five american consumer technology companies [amazon, apple, facebook, google, and microsoft] are getting larger, more entrenched in their own sectors, more powerful in new sectors and better insulated against surprising competition from upstarts. though competition between the five remains fierce and each year, a few of them seem up and a few down it’s becoming harder to picture how any one of them, let alone two or three, may cede their growing clout in every aspect of american business and society.”); brooke masters, hooked on a feeling that amazon is too addictive by far, fin. times (mar. 11, 2016), http://www.ft.com/intl/cms/s/0 /d2d2e376 e768 11e5 bc31 138df2ae9ee6.html [http://perma.cc/x25d 6nts]. at a recent hearing held by the senate judiciary committee’s subcommittee on antitrust, competition policy, and consumer rights, both republican and democratic senators interrogated assistant attorney general for antitrust bill baer and federal trade commission (ftc) chair edith ramirez about their treatment of online platforms, and urged the department of justice (doj) and ftc to study closely the anticompetitive hazards these dominant firms may pose. see oversight of the enforcement of the antitrust laws: hearing before the subcomm. on antitrust, competition policy & consumer rights of the s. comm. on the judiciary, 114th cong. (2016); see also oversight of the antitrust enforcement agencies: hearing before the subcomm. on regulatory reform, commercial & antitrust law of the h. comm. on the judiciary, 114th cong. (2015). vauhini vara, is amazon creating a cultural monopoly?, new yorker (aug. 23, 2015), http://‌‌http://www.newyorker.com/business/currency/is amazon creating a cultural mono‌poly [http://‌perma.cc/vz84 8ux8]. see united states v. apple inc., 952 f. supp. 2d 638, 650 (s.d.n.y. 2013). see, e.g., nat’l collegiate athletic ass’n v. bd. of regents of univ. of okla., 468 u.s. 85, 107 08 (1984) (“‘congress designed the sherman act as a ‘consumer welfare prescription.’ . . . restrictions on price and output are the paradigmatic examples of restraints of trade that the sherman act was intended to prohibit.” (quoting reiter v. sonotone corp., 442 u.s. 330, 343 (1979))); see also infra part i. see, e.g., joe s. bain, industrial organization (2d ed. 1968); donald f. turner & carl kaysen, antitrust policy: an economic and legal analysis (1959); joe s. bain, workable competition in oligopoly: theoretical considerations and some empirical evidence, 40 am. econ. rev. 35, 36 38 (1950). the institutionalists scholars who emphasized the importance of social rules and organizations in producing economic outcomes were also influential in this vein. see, e.g., john r. commons, legal foundations of capitalism (1924). see, e.g., united states v. phila. nat’l bank, 374 u.s. 321, 364 65 (1963). see, e.g., brown shoe co. v. united states, 370 u.s. 294, 328 34 (1962). see id. i use “the chicago school” to refer to the group of legal scholars and economists, primarily based at the university of chicago, who developed neoclassical law and economics in the mid twentieth century. but it is worth noting that a new group of scholars at the university of chicago such as luigi zingales and guy rolnik have departed from the neoclassical approach and are studying market competition with an eye to power. see, e.g., raghuram rajan & luigi zingales, saving capitalism from the capitalists (2003). see generally promarket, http://promarket.org/about this blog [http://perma.cc/g3cd 45k2] (“this is the goal of the ‘promarket blog’: to educate the public about the many ways special interests subvert competition in order to make the market system work better.”). richard a. posner, the chicago school of antitrust analysis, 127 u. pa. l. rev. 925, 932 (1979). the key assumptions of price theory are “that demand curves slope downward, that an increase in the price of a product will reduce the demand for its complement, [and] that resources gravitate to areas where they will earn the highest return.” id. at 928. marc allen eisner, antitrust and the triumph of economics: institutions, expertise, and policy change 107 (1991). see robert h. bork, the antitrust paradox: a policy at war with itself (1978). eisner, supra note 31, at 104. george j. stigler, the organization of industry 67 (1968). eisner, supra note 31, at 105. id. bork, supra note 32, at 7 (“[t]he only legitimate goal of antitrust is the maximization of consumer welfare.”); id. at 405 (“the only goal that should guide interpretation of the antitrust laws is the welfare of consumers . . . . in judging consumer welfare, productive efficiency, the single most important factor contributing to that welfare, must be given due weight along with allocative efficiency.”); see also daniel a. crane, the tempting of antitrust: robert bork and the goals of antitrust policy, 79 antitrust l.j. 835, 847 (2014) (“bork’s big move [was] his rejection of alternatives to efficiency or consumer welfare oriented theories of antitrust enforcement . . . .”). as has been widely noted, bork defines consumer welfare not as consumer surplus but as total welfare. as a result, for bork, outcomes that might otherwise be understood to harm consumers are not thought to reduce consumer welfare. for example, bork concludes that wealth transfers from consumers to monopolist producers would not harm consumer welfare. see bork, supra note 32, at 110 (“those who continue to buy after a monopoly is formed pay more for the same output, and that shifts income from them to the monopoly and its owners, who are also consumers. this is not dead weight loss due to restriction of output but merely a shift in income between two classes of consumers. the consumer welfare model, which views consumers as a collectivity, does not take this income effect into account.”). for critiques of bork’s conflation of consumer welfare and allocative efficiency, see john j. flynn, the reagan administration’s antitrust policy, “original intent” and the legislative history of the sherman act, 33 antitrust bull. 259 (1988); eleanor m. fox, the modernization of antitrust: a new equilibrium, 66 cornell l. rev. 1140 (1981); herbert hovenkamp, antitrust’s protected classes, 88 mich. l. rev. 1 (1989); robert h. lande, a traditional and textualist analysis of the goals of antitrust: efficiency, preventing theft from consumers, and consumer choice, 81 fordham l. rev. 2349 (2013) [hereinafter lande, a traditional and textualist analysis]; robert h. lande, wealth transfers as the original and primary concern of antitrust: the efficiency interpretation challenged, 34 hastings l.j. 65 (1982) [hereinafter lande, wealth transfers]; and maurice e. stucke, reconsidering antitrust’s goals, 53 b.c. l. rev. 551 (2012). reiter v. sonotone corp., 442 u.s. 330, 343 (1979) (quoting bork, supra note 32, at 66). see barak orbach, foreword: antitrust’s pursuit of purpose, 81 fordham l. rev. 2151, 2152 (2013). 1968 merger guidelines, u.s. dep’t just. 1 (1968), http://www.justice.gov/sites/default/files‌/atr/legacy/2007/07/11/11247.pdf [http://perma.cc/884h bguh]. the guidelines continue, “market structure is the focus of the department’s merger policy chiefly because the conduct of the individual firms in a market tends to be controlled by the structure of that market.” id. 1982 merger guidelines, u.s. dep’t just. 2 (1982), http://www.justice.gov/sites/default/files‌/atr‌/legacy/2007/07/11/11248.pdf [http://perma.cc/7j32 zqly]. see, e.g., ginzburg v. mem’l healthcare sys., inc., 993 f. supp. 998, 1015 (s.d. tex. 1997) (“[b]ecause ‘the purpose of antitrust law is the promotion of consumer welfare,’ the court must analyze the antitrust injury question from the perspective of the consumer . . . . thus, in order to show that he suffered an antitrust injury, ‘an antitrust plaintiff must prove that the challenged conduct affected the prices, quantity or quality of goods or services and not just his own welfare.’” (quoting reazin v. blue cross & blue shield of kan., 899 f.2d 951, 960 (10th cir. 1990); angelico v. lehigh valley hosp., inc., 984 f. supp. 308, 312 (e.d. pa. 1997))). horizontal merger guidelines, u.s. dep’t just. & ftc (aug. 19, 2010), http://‌www‌.ftc‌.gov‌/sites/default‌/files/attachments/merger review/100819hmg.pdf [http://‌perma.cc‌/sq8h ab7p]. see emily steel, under regulators’ scrutiny, comcast and time warner cable end deal, n.y. times (apr. 24, 2015), http://www.nytimes.com/2015/04/25/business/media/comcast  time warner cable deal.html [http://perma.cc/h4xs 9lmy]. edith ramirez, chairwoman, ftc, keynote remarks at 10th annual global antitrust enforcement symposium (sept. 20, 2016) (citing richard j. gilbert & hillary greene, merging innovation into antitrust agency enforcement of the clayton act, 83 geo. wash. l. rev. 1919, 1933 (2015)), http://www.ftc.gov/public statements/2016/09/keynote remarks‌  ftc chair‌woman‌‌ edith ramirez [http://perma.cc/fns8 6fl9]. and even merger review has “migrated towards assessing what is measurable namely short term pricing effects, primarily understood under their unilateral effects theory, and short term productive efficiencies.” maurice e. stucke & allen p. grunes, big data and competition policy 107 (2016). “price has become the common denominator in merger review.” id. at 109. id. at 108. crane, supra note 37, at 852. see christopher r. leslie, revisiting the revisionist history of standard oil, 85 s. cal. l. rev. 573, 575 (2012). see ida tarbell, a history of the standard oil company 6 7 (1904). monopoly price refers to the price profitably above cost that a firm with monopoly power can charge. standard oil co. v. united states, 22 u.s. 1 (1911). leslie, supra note 50, at 576 (quoting united states v. a. schrader’s son, 264 f. 175, 181 (d. ohio 1919), rev’d, 252 u.s. 85 (1920)). ch. 323, 38 stat. 730 (1914) (codified as amended at 15 u.s.c. §§ 12 27, 29 u.s.c. §§ 52 53 (2012)). this legislative history makes plain that section 2 of the clayton act “was born of a desire by congress to curb the use by financially powerful corporations of localized price cutting tactics which had gravely impaired the competitive position of other sellers.” ftc v. anheuser busch, inc., 363 u.s. 536, 543 (1959). h.r. rep. no. 63 627, at 8 (1914). section 2 of the clayton act made it “unlawful for a firm to charge a low price in a targeted community while selling similar goods at a higher price elsewhere.” herbert j. hovenkamp, united states competition policy in crisis: 1890 1955, 94 minn. l. rev. 311, 363 (2009). lawrence shepard, the economic effects of repealing fair trade laws, 12 j. consumer aff. 220, 221 (1978) (“fair trade marketing or ‘resale price maintenance’ enabled manufacturers to require retailers to charge producer specified prices on certain goods.”). see dr. miles med. co. v. john d. park & sons co., 220 u.s. 373 (1911). pub. l. no. 75 314, 50 stat. 693 (1937). schwegmann bros. v. calvert distillers corp., 341 u.s. 384 (1951). mcguire act, pub. l. no. 82 542, 66 stat. 632 (1952). pub. l. no. 74 692, 49 stat. 1526 (codified as amended at 15 u.s.c. §§ 13, 21 (2012)). see ftc v. henry broch & co., 363 u.s. 166, 168 (1960) (“the robinson patman act was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power.”). 15 u.s.c. § 13(a) (2012). § 3, 49 stat. at 1528. see united states v. nat’l dairy prods. corp., 372 u.s. 29, 35 (1963) (“[i]n prohibiting sales at unreasonably low prices for the purpose of destroying competition, [the act] listed as elements of the illegal conduct not only the intent to achieve a result destruction of competition but also the act selling at unreasonably low prices done in furtherance of that design or purpose.”). see id. at 37. id. see, e.g., moore v. mead’s fine bread co., 348 u.s. 115, 119 (1954). id. this basis for distinguishing legitimate from illegitimate price cutting echoed other decisions. see ftc v. morton salt co., 334 u.s. 37, 43 (1948) (“the legislative history of the robinson patman act makes it abundantly clear that congress considered it to be an evil that a large buyer could secure a competitive advantage over a small buyer solely because of the large buyer’s quantity purchasing ability. the robinson patman act was passed to deprive a large buyer of such advantages . . . .”); united states v. n.y. great atl. & pac. tea co., 173 f.2d 79 (7th cir. 1949). 386 u.s. 685 (1967). id. at 703. id. at 696 97. id. at 689. id. at 706 (stewart, j., dissenting). ward s. bowman, restraint of trade by the supreme court: the utah pie case, 77 yale l.j. 70, 86 (1967). id. at 70. bork, supra note 32, at 387. id. at 154, 382. see 3 phillip areeda & donald f. turner, antitrust law: an analysis of antitrust principles and their application 189 90 (1978); herbert hovenkamp, economics and federal antitrust law 188 89 (1985); richard a. posner, antitrust law: an economic perspective 193 94 (1976). see jonathan b. baker, predatory pricing after brooke group: an economic perspective, 62 antitrust l.j. 585, 586 (1994) (“the chicago school view of predatory pricing was perhaps best captured by a 1987 dispute between two ftc commissioners over the aptness of a metaphor: the animal that best represents price predation. for one commissioner, predatory pricing was a ‘white tiger,’ an extremely rare creature. for the other commissioner, price predation more closely resembled a ‘unicorn,’ a complete myth. the narrow spectrum of views between a white tiger and a unicorn fairly reflects the chicago school view that predatory pricing is almost always irrational, and so is unlikely actually to occur.” (citations omitted)). see bork, supra note 32, at 149 55. see d. daniel sokol, the transformation of vertical restraints: per se illegality, the rule of reason, and per se legality, 79 antitrust l.j. 1003, 1014 15 (2014). id. id. at 1008. 475 u.s. 574 (1986). the government argued in the case as amicus curiae in support of matsushita. brief for the united states as amicus curiae supporting petitioners, matsushita elec. indus. co. v. zenith radio corp., 475 u.s. 574 (no. 83 2004), 1985 wl 669667. matsushita, 475 u.s. at 577 78. id. at 580, 588 92. id. at 589. id. bork, supra note 32, at 157. matsushita, 475 u.s. at 594; see also cargill, inc. v. monfort of colo., inc., 479 u.s. 104, 116 (1986) (finding that a meat packing company’s price cutting practices constituted vigorous competition rather than an antitrust violation). christopher r. leslie, predatory pricing and recoupment, 113 colum. l. rev. 1695, 1702 (2013). id. see, e.g., a.a. poultry farms, inc. v. rose acre farms, inc., 881 f.2d 1396 (7th cir. 1989). matsushita, 475 u.s. at 589. 509 u.s. 209 (1993). id. at 213. id. at 214. id. at 216. id. at 218. id. at 226. id. see id. at 224 (“recoupment is the ultimate object of an unlawful predatory pricing scheme; it is the means by which a predator profits from predation. without it, predatory pricing produces lower aggregate prices in the market, and consumer welfare is enhanced.”). as some commentators have noted, the court’s reliance on scholarship advocating a retrenchment of enforcement against predatory pricing schemes did not reflect a dearth of opposing views. see, e.g., f.m. scherer, conservative economics and antitrust: a variety of influences, in how the chicago school overshot the mark 30, 33 (robert pitofsky ed., 2008) (“already by the time of the matsushita decision, there was a substantial scholarly literature documenting what should have passed for predation by any reasonable definition and showing the rationality of sharp price cutting by a dominant firm to discourage new entrants. since there was a diversity of scholarly views at the time key supreme court pronouncements were rendered on predation, the fault for ignoring one side of the scholarship must be attributed to the court’s myopia or (without the obiter dictum) compelling facts, and not to economists’ contributions.” (citation omitted)); id. at 34 (“if there was favoritism, it was not in the economic literature evaluated, but in the weighing of alternative perspectives.”). sokol, supra note 84, at 1013 (“the recoupment prong eviscerated the utah pie standard and made it nearly impossible in practice for plaintiffs to win a primary line robinson patman claim going forward.”). the only recent case in which plaintiffs survived a motion for summary judgment is spirit airlines, inc. v. northwest airlines, inc., 431 f.3d 917 (6th cir. 2005), where the court denied summary judgment on the grounds that a reasonable trier of fact could find sufficient evidence of predatory pricing. sandeep vaheesan, reconsidering brooke group: predatory pricing in light of the empirical learning, 12 berkeley bus. l.j. 81, 82 (2015); see also richard o. zerbe, jr. & michael t. mumford, does predatory pricing exist? economic theory and the courts after brooke group, 41 antitrust bull. 949, 957 64 (1996) (discussing the empirical research that companies engage in predatory pricing). robert h. cole, general discussion of vertical integration, in vertical integration in marketing 9, 9 (nugent wedding ed., 1952). clayton act, ch. 323, § 7, 38 stat. 730, 731 (1914) (codified as amended at 15 u.s.c. § 18 (2012)). sherman act, ch. 647, §§ 1, 3, 26 stat. 209, 209 (1890) (codified as amended at 15 u.s.c. § 1 (2012)). federal trade commission act, ch. 311, § 5, 38 stat. 717, 719 (1914) (codified as amended at 15 u.s.c. § 45(a)(1) (2012)). see herbert hovenkamp, robert bork and vertical integration: leverage, foreclosure, and efficiency, 79 antitrust l.j. 983, 988 92 (2014). clayton act, ch. 1184, § 7, 64 stat. 1125, 1125 26 (1950) (codified as amended at 15 u.s.c. § 18 (2012)); see hovenkamp, supra note 113, at 985. friedrich kessler & richard h. stern, competition, contract, and vertical integration, 69 yale l.j. 1, 16 (1959). see, e.g., ftc v. consol. foods corp., 380 u.s. 592, 594 95 (1965); united states v. yellow cab co., 332 u.s. 218, 226 27 (1947); miss. river corp. v. ftc, 454 f.2d 1083, 1091 (8th cir. 1972); see also anchor serum co. v. ftc, 217 f.2d 867, 873 (7th cir. 1954) (“it would require a naive mind to conclude, as petitioner would have us do, that the arrangements under consideration could result in other than an adverse effect upon competition.”). but see united states v. columbia steel co., 334 u.s. 495, 507 08 (1948) (finding that a vertical combination did not violate antitrust law). 370 u.s. 294, 297 (1962). id. at 324, 332. id. at 323. id. at 324. id. at 372 (harlan, j., concurring in part and dissenting in part). id. at 294 (majority opinion). ford motor co. v. united states, 405 u.s. 562, 567 (1972) (quoting united states v. ford motor co., 286 f. supp. 407, 441 (e.d. mich. 1968)). id. (quoting ford motor co., 286 f. supp. at 441). id. (quoting ford motor co., 286 f. supp. at 441). id. at 568. id. at 575. in an influential 1954 essay that presaged his later arguments in the antitrust paradox, bork defended vertical integration as nearly always procompetitive. robert bork, vertical integration and the sherman act: the legal history of an economic misconception, 22 u. chi. l. rev. 157, 194 201 (1954); see also ward s. bowman, jr., tying arrangements and the leverage problem, 67 yale l.j. 19 (1957) (arguing that tying arrangements a form of vertical control cannot be used to leverage monopoly power from one market to another). bork, supra note 32, at 231. see, e.g., id. at 372 75, 380 81; posner, supra note 30, at 925, 927 (“[i]t makes no sense for a monopoly producer to take over distribution in order to earn monopoly profits at the distribution as well as the manufacturing level. the product and its distribution are complements, and an increase in the price of distribution will reduce the demand for the product. assuming that the product and its distribution are sold in fixed proportions . . . the conclusion is reached that vertical integration must be motivated by a desire for efficiency rather than for monopoly.”); id. at 929 (“if the [service] is already being priced at the optimal monopoly level, an increase in the price of [one component] above the competitive level will raise the total price of the service to the consumer above the optimal monopoly level and will thereby reduce the monopolist’s profits.”). bork, supra note 32, at 232. id. at 234. bork later modified his position on entry barriers when he consulted for netscape in the antitrust division’s challenge to microsoft’s exclusionary practices, which the company had employed primarily against netscape. although bork had been a fierce critic of “leverage theory,” he described microsoft’s attempt to tie its operating system to its software as a way “to leverage the [windows] asset to make people use [internet explorer] instead of [netscape] navigator.” hovenkamp, supra note 113, at 996 97 (citing robert bork, high stakes antitrust: the last hurrah?, in high stakes antitrust: the last hurrah? 45, 50 (robert w. hahn ed., 2003)). but in an article later commissioned by google, bork returned to a critique of leverage theory, deriding the idea that google could leverage its position in the general search market to gain additional profits in downstream markets. see robert h. bork & j. gregory sidak, what does the chicago school teach about internet search and the antitrust treatment of google, 8 j. competition l. & econ. 663, 675 77 (2012). bork, supra note 32, at 234. 1982 merger guidelines, supra note 42; 1984 merger guidelines, u.s. dep’t just. (1984), http://‌http://www.justice.gov/sites/default‌/files‌/atr/legacy/2007/07/11/11249.pdf [http://‌perma.cc/y5jl 5pqs]. 1984 merger guidelines, supra note 135, at 24 32. id. william e. kovacic, built to last? the antitrust legacy of the reagan administration, 35 fed. b. news & j. 244, 245 (1988) (“since 1981, the government antitrust agencies have issued no complaints or consent agreements in robinson patman matters that originated after the arrival of reagan appointees to head the ftc and the justice department. reagan ftc leadership has said the commission has not abandoned robinson patman enforcement, but the government’s failure to initiate new enforcement actions during the reagan administration suggests that firms are virtually immune from federal prosecution for conduct the statute proscribes.”); joseph guinto, antitrust targets vertical deals, inv.’s bus. daily, june 17, 1999, at a01. for example, democrat appointed antitrust leaders have also adopted the chicago school view that most vertical mergers are benign. as then ftc commissioner christine varney (who would later go on to be assistant attorney general for antitrust in the obama administration) observed in a speech, “[m]ost vertical arrangements raise few competitive concerns.” christine a. varney, comm’r, ftc, vertical merger enforcement challenges at the ftc (july 17, 1995), http://www.ftc.gov/public statements/1995/07‌/vertical merger  enforcement challenges ftc [http://perma.cc/jdq8 h5kb]. james b. stewart, why a media merger that should go through might not, n.y. times (oct. 25, 2016), http://www.nytimes.com/2016/10/26/business/economy/why a media  merger that should go through might not.html [http://perma.cc/ntn7 lb9n] (“‘over the last 40 to 50 years, antitrust law has evolved to be almost completely indifferent to vertical mergers,’ said tim wu, an antitrust and internet expert at columbia law school . . . .”). by imposing conduct remedies, the antitrust agencies set out behavioral conditions that the merging parties must comply with, subject to agency oversight. by requiring divestitures, the antitrust agencies ask the merging parties to sell off a part of their business to another entity. martin h. bosworth, consumer groups oppose comcast nbc merger, consumer aff., (dec. 3, 2009), http://www.consumeraffairs.com/news04/2009/12/comcast_nbc.html [http://‌perma.cc‌/n347 mtkq]; david segal, calling almost everyone’s tune, n.y. times (apr. 24, 2010), http://www.nytimes.com/2010/04/25/business/25ticket.html [http://‌perma.cc‌/3tt3 fhya] (“to say this new conglomerate has inspired fear in the live concert business doesn’t capture the extent of the quaking.”); ethan smith & thomas catan, concert deal wins antitrust approval, wall st. j. (jan. 26, 2010, 12:01 am), http://www.wsj .com‌/articles/sb10001424052748704762904575025332380117008 [http://perma.cc/fwr9  wusr]. as bork pointed out, the vertical deals would not increase the market share of either company. see bork, supra note 32, at 231. in ticketmaster/livenation’s case, the deal instead “creates one company that will have a hand in just about every corner of the music business,” smith & catan, supra note 142, while in comcast/nbc’s case, the merger created “a $30 billion media behemoth that controls not just how television shows and movies are made but how they are delivered to people’s homes,” yinka adegoke & dan levine, comcast completes nbc universal merger, reuters (jan. 29, 2011, 11:50 am), http://‌www‌.reuters‌.com/article‌/us comcast nbc idustre70s2wz20110129 [http://perma.cc/exc3 4pau]. press release, office of pub. affairs, u.s. dep’t of justice, justice department allows comcast nbcu joint venture to proceed with conditions (jan. 18, 2011), http://‌www‌.just ice‌.gov‌/opa/pr/justice department allows comcast nbcu joint venture pro‌ceed‌‌ conditions [http://‌perma.cc/8fhz al4w]; press release, office of pub. affairs, u.s. dep’t of justice, justice department requires ticketmaster entertainment inc. to make significant changes to its merger with live nation inc. (jan. 25, 2010), http://‌http://www.justice.gov/opa/pr/justice  department requires ticketmaster entertainment inc make significant changes its [http://‌perma.cc‌/pz2e x2fl]; see also jeremy pelofsky & yinka adegoke, livenation, ticketmaster merge; agree to u.s. terms, reuters (jan. 25. 2010, 8:13 pm), http://www.reuters‌.com‌/article/us ticketmaster livenation idustre60o4e520100126 [http://perma.cc‌/qt7k  lpha] (“‘the conditions seem to be relatively benign,’ said tuna amobi, equity analyst at standard & poor’s. ‘there are no major divestitures required. i don’t know that is going to create the kind of even, competitive field that was intended.’”); smith & catan, supra note 142. clayton act, ch. 323, 38 stat. 730 (1914) (codified as amended at 15 u.s.c. §§ 12 27, 29 u.s.c. §§ 52 53 (2012)). former assistant attorney general for antitrust bill baer described the incipiency standard as seeking to “prevent competitive conditions from deteriorating even when competition was not clearly problematic at the time of the lawsuit.” he continued, “second, in order to arrest potential restraints ‘in their incipiency,’ the act banned these practices where their effect ‘may be to substantially lessen competition.’ the intent was to consider likely future effect not just palpable impact in determining whether these practices were illegal.” bill baer, assistant att’y gen., antitrust div., dep’t of justice, remarks at the american bar association clayton act 100th anniversary symposium (dec. 4, 2014). see hovenkamp, supra note 57, at 359. daniel a. crane, has the obama justice department reinvigorated antitrust enforcement?, stan. l. rev. online (july 18, 2012), http://www.stanfordlawreview.org/online /has the obama justice department reinvigorated antitrust enforcement [http://‌perma.cc‌/56j4 nnsp] (“the final category is monopolization cases. over the eight years of the bush administration, the justice department filed no monopolization cases. to date, the obama administration has filed only one case, hardly evidencing a major shift in tactics.”). a growing body of work shows that the consumer welfare frame has failed even on its own terms namely, by leading to higher prices without any clear efficiency gains. see john kwoka, mergers, merger control, and remedies: a retrospective analysis of u.s. policy (2015); benefits of competition and indicators of market power, council econ. advisers (apr. 2016), http://www.whitehouse.gov/sites/default/files/page/files/20160414 _cea_competition_issue_brief.pdf [http://perma.cc/9nms 4u9l]; divs. of research & statistics & monetary affairs, evidence for the effects of mergers on market power and efficiency, fed. res. (2016), http://www‌.federalreserve.gov‌/econresdata‌/feds/2016‌/files‌/2016082pap.pdf [http://perma.cc/cy4y dgb2]. see barry c. lynn & lina khan, the slow motion collapse of american entrepreneur  ship, wash. monthly (july/aug. 2012), http://washingtonmonthly.com/magazine /julyaugust 2012/the slow motion collapse of american entrepreneurship [http://‌perma.cc‌/p9vm 9fm5]; see also ian hathaway & robert e. litan, what’s driving the decline in the firm formation rate? a partial explanation, brookings inst. (nov. 2014) (document  ing business consolidation as a contributing factor in the declining formation of new firms), http://www.brookings.edu/wp content/uploads/2016/06/driving_decline‌_firm‌_for‌m‌ation‌_rate_hathaway_litan.pdf [http://perma.cc/qa9m zgat]. reiter v. sonotone corp., 442 u.s. 330, 343 (1979). heaps of scholarship delve into this legislative history. see, e.g., sources cited supra note 38. eleanor fox, against goals, 81 fordham l. rev. 2158, 2158 (2013). id. 21 cong. rec. 2461 (1890) (statement of sen. sherman). id. at 2457 (statement of sen. sherman). robert pitofsky, the political content of antitrust, 127 u. pa. l. rev. 1051, 1051 (1979). id. 21 cong. rec. 3146 (1890) (statement of sen. hoar). lande, wealth transfers, supra note 38, at 96 97. 21 cong. rec. 2461 (1890) (statement of sen. sherman, quoting sen. george). id. at 2614 (statement of sen. coke). id. at 4101 (statement of rep. heard). id. at 4098 (statement of rep. taylor). id. at 2461 (statement of sen. sherman, quoting sen. george). lande, wealth transfers, supra note 38, at 96 97. id. at 98. for a seminal discussion of why antitrust laws must take political values into account, see pitofsky, supra note 156, at 1051 (“it is bad history, bad policy, and bad law to exclude certain political values in interpreting the antitrust laws. by ‘political values,’ i mean, first, a fear that excessive concentration of economic power will breed antidemocratic political pressures, and second, a desire to enhance individual and business freedom by reducing the range within which private discretion by a few in the economic sphere controls the welfare of all. a third and overriding political concern is that if the free market sector of the economy is allowed to develop under antitrust rules that are blind to all but economic concerns, the likely result will be an economy so dominated by a few corporate giants that it will be impossible for the state not to play a more intrusive role in economic affairs.”). 51 cong. rec. 13,231 (1914) (statement of sen. reed). 21 cong. rec. 2598 (1890) (statement of sen. george). louis d. brandeis, the curse of bigness 38 (osmond k. fraenkel ed., 1934). united states v. columbia steel co., 334 u.s. 495, 536 (1948) (douglas, j., dissenting). id. in economics and the public purpose, galbraith concluded that centralized planning, rather than open markets, was the best way to stabilize industries and boost prosperity. john kenneth galbraith, economics and the public purpose 55 (1973). see michael sandel, democracy’s discontent 246 (1996) (“although nader and his followers did not disparage, as did bork, the civic tradition of antitrust, they too rested their arguments on considerations of consumer welfare . . . . according to nader, the ‘modern relevance’ of traditional antitrust wisdom lay in its consequences for ‘the prices people pay for their bread, gasoline, auto parts, prescription drugs, and houses.’”). see lina khan, new tools to promote competition, democracy (fall 2016), http://‌democracy‌journal‌.org/magazine/42/new tools to promote competition [http://‌perma.cc‌/vz4n czbn]. i am by no means alone in arguing this. see, e.g., barry c. lynn, cornered: the new monopoly capitalism and the economics of destruction (2010); fox, supra note 38, at 1153 54; maurice e. stucke, better competition advocacy, 82 st. john’s l. rev. 951, 993 (2008); stucke, supra note 38, at 564. for a more recent argument in favor of rebalancing antitrust away from technocracy and toward democracy, see harry first & spencer weber waller, antitrust’s democracy deficit, 81 fordham l. rev. 2543, 2544 (2013) (“[a]ntitrust is also public law designed to serve public ends. today’s unbalanced system puts too much control in the hands of technical experts, moving antitrust enforcement too far away from its democratic roots.”). see fox, supra note 38, at 1153 54 (“rather than standing for efficiency, the american antitrust laws stand against private power. distrust of power is the one central and common ground that over time has unified support for antitrust statutes. interests of consumers have been a recurrent concern because consumers have been perceived as victims of the abuse of too much power. interests of entrepreneurs and small business have been a recurrent concern because independent entrepreneurs have been seen as the heart and lifeblood of american free enterprise, and freedom of economic activity and opportunity has been thought central to the preservation of the american free enterprise system. one overarching idea has unified these three concerns (distrust of power, concern for consumers, and commitment to opportunity of entrepreneurs): competition as process. the competition process is the preferred governor of markets. if the impersonal forces of competition, rather than public or private power, determine market behavior and outcomes, power is by definition dispersed, opportunities and incentives for firms without market power are increased, and the results are acceptable and fair.” (citations omitted)). for more on this connection, see simon johnson & james kwak, 13 bankers: the wall street takeover and the next financial meltdown (2011); and lynn, supra note 176. the justice department recently cited the importance of media diversity when suing to block a merger between two newspapers. see michaela ross, even for ailing newspapers, u.s. says a monopoly is a monopoly, bloomberg (mar. 22, 2016), http:// www‌.bloomberg.com‌/news/articles/2016 03 21/tribune loses out on local newspaper deal  ov‌er antitrust issues [http://perma.cc/u2e5 zhm9]. for why competition policy is important for promoting media diversity, see maurice e. stucke & allen p. grunes, toward a better competition policy for the media: the challenge of developing antitrust policies that support the media sector’s unique role in our democracy, 42 conn. l. rev. 101 (2009). see fox, supra note 152. for one perspective on how the chicago school’s philosophy has shaped antitrust, see generally how the chicago school overshot the mark: the effect of conservative economic analysis on u.s. antitrust supra note 106. in his essay within this collection, richard schmalensee states, “competition . . . generally means now, consumer or total welfare.” richard schmalensee, thoughts on the chicago legacy in u.s. antitrust, in how the chicago school overshot the mark: the effect of conservative economic analysis on u.s. antitrust supra note 106, at 17. see supra section i.a. see bork, supra note 32, at 278 (“absent the power to restrict output, the decision to eliminate rivalry can only be made in order to achieve efficiency.”); see supra section i.b. see hovenkamp, supra note 57, at 359 (“[t]he guiding principle of the chicago school critique of the s c p paradigm was that market power is not inherently a bad thing. indeed, often market power as well as high concentration result from efficiency.”). one line of argument holds that the concentration of private control and the power it hands to a few over our economy is itself problematic, and if and how those wielding this power choose to exercise it is beside the point. see, e.g., united states v. columbia steel co., 334 u.s. 495, 536 (1948) (douglas, j., dissenting) (“in final analysis, size in steel is the measure of the power of a handful of men over our economy. that power can be utilized with lightning speed. it can be benign or it can be dangerous. the philosophy of the sherman act is that it should not exist.”). i am not the first to argue that preserving a competitive process is vital to promoting competition. see, e.g., fox, supra note 38, at 1152 54. instead, my contribution here is in (1) identifying how a consumer welfare based approach is failing to detect and deter anticompetitive harms in the context of internet platforms, thereby (2) highlighting the need for a process based approach as applied to internet platforms, and (3) detailing that this process based approach would pay particular attention to entry barriers, conflicts of interest, the emergence of gatekeepers and bottlenecks, the use of and control over data, and dynamics of bargaining power. this is one line of argument president franklin roosevelt offered in favor of robust antitrust. in a 1938 speech to congress he said, “the enforcement of free competition is the least regulation business can expect.” franklin d. roosevelt, message to congress on curbing monopolies, am. presidency project http://www.presidency.ucsb.edu/ws/?pid=15637 [http://‌perma.cc/wp9p 83rf]. by “distorting,” i mean that a single player has enough control to dictate outcomes. this is the definition offered by milton friedman, a figure popular with the neoclassical school. see milton friedman, capitalism and freedom 119 20 (2002) (“monopoly exists when a specific individual or enterprise has sufficient control over a particular product or service to determine significantly the terms on which other individuals shall have access to it.”). the chicago school accepts this definition with regard to price and output, but ignores other metrics of control. see stucke & grunes, supra note 47, at 107 09. i am using “dominance” to connote that the company controls a significant share of market activity in a sector. i do not mean to attach the legal significance that sometimes attends “dominance.” see greg bensinger, cloud unit pushes amazon to record profit, wall st. j. (apr. 28, 2016, 7:31 pm), http://www.wsj.com/articles/amazon reports surge in profit 1461874333 [http://‌perma.cc‌/l4qs rj26] (“the cloud division’s sales rose 64% to $2.57 billion. while that is less than one tenth of amazon’s overall revenue, [amazon web services] generated 67% of the company’s operating income in the quarter.”). id. amazon’s profits, ben evans (aug. 2013), http://ben evans.com‌/benedictevans‌/2013/8/8‌/amazons profits [http://perma.cc/g5jc 7xbl]; amazon.com inc., marketwatch, http://www.marketwatch.com/investing/stock/amzn/historical [http://perma.cc/jw97  a624]. see streitfeld, supra note 1 (“in its 16 years as a public company, amazon has received unique permission from wall street to concentrate on expanding its infrastructure, increasing revenue at the expense of profit. stockholders have pushed amazon shares up to a record level, even though the company makes only pocket change. profits were always promised tomorrow.”). see, e.g., justin dini, amazon losses widen but shares rise after hours, thestreet (feb, 2, 2000, 7:01 pm), http://www.thestreet.com/story/875924/1/amazon losses widen but  shares rise after hours.html [http://perma.cc/p6hj 3vdg]; quick pen, what’s driving the amazon stock up despite 188% full year income drop?, gurufocus (feb. 8, 2015), http://www.gurufocus.com/news/315124/whats driving the amazon stock up  despite 188 full year income drop [http://perma.cc/k6fj jwna]. david streitfeld, amazon reports unexpected profit, and stock soars, n.y. times (july 23, 2015), http://www.nytimes.com/2015/07/24/technology/amazon earnings q2.html [http://‌perma.cc‌/wjx9 cyg7]; see also philip elmer dewitt, this is what drives apple investors nuts about amazon, fortune (july 24, 2015, 2:58 pm), http://fortune.com/2015‌/07/24‌/apple amazon profits [http://perma.cc/56u5 z2e3] (noting the same). matthew yglesias, amazon profits fall 45 percent, still the most amazing company in the world, slate: moneybox (jan. 29, 2013, 4:23 pm), http://www.slate.com‌/blogs‌/moneybox‌/2013‌/01/29/amazon_q4_profits_fall_45 _percent.html [http://perma.cc/j8az r9s6]. jeffrey p. bezos, letter to shareholders, amazon.com, inc. (mar. 30, 1998), http://‌media.corporate ir.net/media_files/irol/97/97664/reports/shareholderletter97.pdf [http://‌perma.cc/793g yml7]. id. at 2. id. id. at 1 2. tonya garcia, amazon accounted for 60% of u.s. online sales growth in 2015, marketwatch, (may 3, 2016, 3:17 pm), http://www.marketwatch.com/story/ama zon accounted for 60 of online sales growth in 2015 2016 05 03 [http://perma.cc/8c5w  8nyw] (“amazon makes up a larger percentage of e commerce in the u.s. than any other player, and its retail growth has outpaced overall online retail.”); see also the everything shipper: amazon and the new age of delivery, bi intelligence (june 5, 2016), http://www.businessinsider.com/the everything shipper amazon and the new  age of delivery 2016 6 [http://perma.cc/2sgj 5ady]. see phil wahba, this chart shows just how dominant amazon is, fortune (nov. 6, 2015, 11:48 am), http://fortune.com/2015/11/06/amazon retailers ecommerce [http://perma.cc‌/9ypv skm5]. the fact that amazon was exempt from sales taxes for the first fifteen years of its existence gave it an 8 10% price advantage over brick and mortar stores. its pricing lead over both traditional and online retailers, however, has been and still continues to be far greater than 8 10%. a review of a new price comparison tool stated: “and, as expected, it reported that amazon indeed had the best prices for nearly everything we searched.” zach epstein, amazon isn’t always the cheapest option here’s how to find the best prices, bgr (july 17, 2014, 12:55 pm), http://‌bgr.com/2014/07/17/amazon price comparison tool  lowest price [http://perma.cc/j7p3 bby5]. dawn kawamoto, amazon unveils flat fee shipping, cnet (feb. 2, 2005), http://‌www‌.cnet‌.com‌/news/amazon unveils flat fee shipping [http://perma.cc/q8fs 7sq7]. it has also been a key force driving up amazon’s stock price. “analysts describe prime as one of the main factors driving amazon’s stock price up 296 percent in the last two years and the main reason amazon’s sales grew 30 percent during the recession while other retailers flailed.” brad stone, what’s in amazon’s box? instant gratification, bloomberg businessweek (nov. 24, 2010, 5:00 pm), http://www.bloomberg.com/news/articles/2010 11  24/whats in amazons box instant gratification [http://perma.cc/q7vl 95dq]; see also tom dichristopher, prime will grow amazon revenue longer than you think: analyst, cnbc (sept. 11, 2015, 11:01 am), http://www.cnbc.com/2015/09/11/prime will grow  ama‌zon revenue longer than you think analyst.html [http://perma.cc/qg8h z4a6] (“during amazon’s second quarter conference call, management said growing prime adoption was one factor behind acceleration in domestic and international revenue growth.”). devin leonard, will amazon kill fedex?, bloomberg (aug. 31, 2016), http://‌www‌.bloomberg.com/features/2016 amazon delivery [http://perma.cc/ge8f d3be]. brad tuttle, amazon prime: bigger, more powerful, more profitable than anyone imagined, time (mar. 18, 2013), http://business.time.com/2013/03/18/amazon prime bigger more  powerful more profitable than anyone imagined [http://perma.cc/wnl5 mc29]. dan frommer, half of us households could have amazon prime by 2020, quartz (feb. 26, 2015), http://qz.com/351726/half of us households could have amazon prime by 2020 [http://‌perma.cc/zw4z 47uy]. stu woo, amazon ‘primes’ pump for loyalty, wall st. j. (nov. 14, 2011), http://‌www‌.wsj‌.com‌/articles/sb10001424052970203503204577036102353359784 [http://‌perma.cc/87ww  tvnw]. deepa seetharaman & nathan layne, free delivery creates holiday boon for u.s. consumers at high cost, reuters (jan. 2, 2015, 12:22 pm), http://www.reuters.com/article/us retail  shipping holidays analysis iduskbn0kb0p720150102 [http://perma.cc/cph8 932w]. see elizabeth weise, amazon prime is big, but how big?, usa today (feb. 3. 2015, 1:31 pm), http://‌http://www.usatoday.com/story/tech/2015/02/03/amazon prime 10 years old  anni‌ver‌sary‌/22755509 [http://perma.cc/5k2a m3ha]. amazon’s filings with the sec show that its shipping costs have grown as a percentage of sales each year since 2009. see amazon.com, inc., supra note 9, at 26; amazon.com, inc., annual report (form 10 k) 25 (jan. 30, 2013), http://www.sec.gov‌/archives/edgar‌/data/1018724‌/000119312513028520‌/d445434‌d‌10k‌‌.htm [http://perma.cc/rx85 5rj3]; amazon.com, inc., annual report (form 10 k) 27 (jan. 29, 2010), http://www.sec.gov/archives/edgar/data/1018724‌/000119312510016098‌/d10k.htm [http://perma.cc/l27r chuy]. stone, supra note 206. chad rubin, the evolution of amazon prime and their followed success, skubana (mar. 31, 2016), http://www.skubana.com/e commerce trends/evolution of amazon prime [http://‌perma.cc‌/t9et c6v8]. ben fox rubin, as amazon marks 20 years, prime grows to 44 million members in us, cnet (july 15, 2015, 4:26 am), http://www.cnet.com/news/amazon prime grows to estimated  44 million members in us [http://perma.cc/ceq8 g996]. see brad tuttle, how amazon gets you to stop shopping anywhere else, time (dec. 1, 2010), http://‌‌business.time.com/2010/12/01/how amazon gets you to stop shopping any‌where else [http://perma.cc/glq2 65at]. clare o’connor, walmart and target being crowded out online by amazon prime, forbes (apr. 6, 2015, 12:59 pm), http://www.forbes.com/sites/clareoconnor/2015/04/06 /walmart and target being crowded out online by amazon prime [http://perma.cc/cm2e  gper]. id. id. stone, supra note 206. see tuttle, supra note 217 (“what this program has done is something that’s normally very difficult to accomplish: it’s changed consumer habits, and, perhaps even more remarkably, it’s changed them in ways that solely favor amazon. the service is better than any freebie promotion, which even if it’s good at driving traffic to the website, is short lived. instead, the prime membership program gets consumers in the regular habit of at least checking with amazon before making any online purchase.”). greg bensinger, amazon raises prime subscription price to $99 a year, wall st. j. (mar. 13, 2014, 7:22 pm), http://www.wsj.com/articles‌/sb10001424052702303546204579‌4369033094‌11092 [http://perma.cc/33tk 76gs]. lance whitney, amazon prime members will renew despite price hike, survey finds, cnet (july 23, 2014), http://www.cnet.com/news/amazon prime members will almost all  renew despite price increase [http://perma.cc/z585 yu8p]. see adam candeub, behavioral economics, internet search, and antitrust, 9 i/s 407, 409 (2014) (“[o]nline market behavior may differ from the brick and mortar world . . . . in particular, behavioral tendencies related to habit and information costs may disrupt conventional economic assumptions.”). as justice white wrote in his dissent in matsushita, “the court, in discussing the unlikelihood of a predatory conspiracy, also consistently assumes that petitioners valued profit maximization over growth.” matsushita elec. indus. co. v. zenith radio corp., 475 u.s. 574, 604 (1986) (white, j., dissenting). indeed, to get a sense of amazon’s breadth, it is helpful to see the range of actors amazon lists among its “current and potential competitors”: (1) online, offline, and multichannel retailers, publishers, vendors, distributors, manufacturers, and producers of the products we offer and sell to consumers and businesses; (2) publishers, producers, and distributors of physical, digital, and interactive media of all types and all distribution channels; (3) web search engines, comparison shopping websites, social networks, web portals, and other online and app based means of discovering, using, or acquiring goods and services, either directly or in collaboration with other retailers; (4) companies that provide e commerce services, including website development, advertising, fulfillment, customer service, and payment processing; (5) companies that provide fulfillment and logistics services for themselves or for third parties, whether online or offline; (6) companies that provide information technology services or products, including on premises or cloud based infrastructure and other services; and (7) companies that design, manufacture, market, or sell consumer electronics, telecommunication, and electronic devices. amazon.com, inc., annual report (form 10 k) 4 (apr. 6, 2016), http://phx.corporate  ir.net/external.file?item=ugfyzw50suq9nji4ntg0fenoawxksuq9mzi5ntmwffr 5c‌gu9mq==&t=1 [http://perma.cc/96hq tzdt]. see generally id. (describing amazon’s businesses). as of 2012, amazon had acquired or invested in over seventy companies. see sucharita mulpuru & brian k. walker, forrester, why amazon matters now more than ever 5 (2012). id. at 17. see lavecchia & mitchell, supra note 6, at 1. tiernan ray, amazon: all retail’s skus are belong to them, goldman tells cnbc, barrons: tech trader daily (june 16, 2016, 11:40 am), http://blogs.barrons.com‌/techtrader daily‌/2016‌/06/16/amazon all retails skus are belong to them goldman tells cnbc [http://‌perma.cc‌/z95r jygr] (quoting a goldman sachs analyst as saying, “[p]rojected e commerce growth of 22% this year is largely thanks to amazon,” and “amazon ‘is going to outgrow that,’ with perhaps ‘mid to high 20s growth,’ . . . given ‘amazon is taking share, and seeing acceleration in their international business’”). see generally leonard, supra note 207 (“amazon’s growth has been preposterous . . . . the company is the fifth most valuable in the world: its market capitalization is about $366 billion, which is roughly equal to the combined worth of walmart, fedex, and boeing.”). leonard, supra note 207. shelly banjo, amazon eats the department store, bloomberg: gadfly (sept. 20, 2016, 9:27 am), http://www.bloomberg.com/gadfly/articles/2016 09 20/amazon clothing sales  could soon top macy s [http://perma.cc/63uj 5y67]. its clothing sales are greater than the combined online sales of its five largest online apparel competitors: macy’s, nordstrom, kohl’s, gap, and victoria’s secret’s parent. id. in some contexts, “dominance” connotes a legal definition. i am not using it in this way. see supra note 191. see caroline mccarthy, amazon debuts kindle e book reader, cnet (nov. 19, 2007, 10:33 am), http://www.cnet.com/news/amazon debuts kindle e book reader [http://perma.cc‌/vf4z 2v77]. see id. see brad stone, the everything store (2013); george packer, cheap words, new yorker (feb. 17, 2014), http://www.newyorker.com/magazine/2014/02/17/cheap words [http://‌perma.cc‌/42an y6ut]. prior to 2009, many publishers set a wholesale price for e books at a 20% discount from the equivalent physical book, at which point amazon’s $9.99 price point roughly matched the wholesale price of many of its e books. in 2009, publishers eliminated the wholesale discount, yet amazon continued to price e books at $9.99. this is the point at which it clearly sold e books below cost. see united states v. apple, inc., 952 f. supp. 2d 638, 649 50 (s.d.n.y. 2013); see also packer, supra note 239 (“the price was below wholesale in some cases, and so low that it represented a serious threat to the market in twenty six dollar hardcovers.”); jeffrey a. trachtenberg, e book sales fall after new amazon contracts, wall st. j. (sept. 3, 2015), http://www.wsj.com/article_email/e book sales weaken amid higher  prices 1441307826 lmyqjaxmte1mzaxnduwmjq2wj [http://‌perma.cc/lvz9 dk9y] (“amazon was willing to buy a title for $14.99 and sell it for $9.99, taking a loss to grab market share and encourage adoption of its kindle e reader.”). see eric savitz, amazon selling kindle fire below cost, analyst contends, forbes (sept. 30, 2011, 5:40 pm), http://www.forbes.com/sites/ericsavitz/2011/09/30/amazon selling kindle‌ fire below cost analyst contends [http://perma.cc/3aq8 x9lz]; woo, supra note 210 (“mr. munster estimated that amazon sells each kindle model at a loss of $10 to $15.”). see packer, supra note 239 (“in the mid aughts, bezos, having watched apple take over the music selling business with itunes and the ipod, became determined not to let the same thing happen with books. in 2004, he set up a lab in silicon valley that would build amazon’s first piece of consumer hardware: a device for reading digital books. according to stone’s book, bezos told the executive running the project, ‘proceed as if your goal is to put everyone selling physical books out of a job.’”). apple, 952 f. supp. 2d at 649. id. at 658 61. id. at 672. id. at 679. announcement: macmillan e books, amazon (jan. 31, 2010, 2:22 pm), http://‌www‌.amazon.com/forum/kindle/tx2megqwtngimhv [http://perma.cc/k64a rf2c]; see also apple, 952 f. supp. 2d at 680 81 (describing the struggle between the publishing houses and amazon leading up to amazon’s capitulation). apple, 952 f. supp. 2d at 681. id. at 645. response of plaintiff united states to public comments on the proposed final judgment at 21, apple, 952 f. supp. 2d 638 (no. 12 cv 2826 dlc). id. at 21 22 (quoting complaint at 9, apple, 952 f. supp. 2d 638 (no. 12 cv 2826 dlc)). apple, 952 f. supp. 2d at 708 (“this trial has not been the occasion to decide whether amazon’s choice to sell nyt bestsellers or other new releases as loss leaders was an unfair trade practice or in any other way a violation of law.”). see id. at 650 (noting that amazon “continued to sell many nyt bestsellers as loss leaders”); complaint, supra note 251, at 9 (“from the time of its launch, amazon’s e book distribution business has been consistently profitable, even when substantially discounting some newly released and bestselling titles.”); response of plaintiff united states to public comments on the proposed final judgment, supra note 250, at 21 22. see generally jean charles rochet & jean tirole, platform competition in two sided markets, 1 j. eur. econ. ass’n 990 (2003) (explaining the dynamics of competition in two sided markets). traditionally, a retailer loss leads when it prices one good below cost in order to sell more of another good, assuming that discounts on one good will attract and retain consumers. walmart choosing to price t shirts below cost to sell more shorts would be an example of loss leading. john b. kirkwood, collusion to control a powerful customer: amazon, e books, and antitrust policy, 69 u. miami l. rev. 1, 38 39 (2014). id. at 39. see id. see cory doctorow, why the death of drm would be good news for readers, writers and publishers, guardian (may 3, 2012, 10:25 am), http://www.theguardian.com‌/technology/2012/may/03/death of drm good news [http://perma.cc/h77l 7kz8] (“if tor sells you one of my books for the kindle locked with amazon’s drm, neither i, nor tor, can authorise you to remove that drm. if amazon demands a deeper discount (something amazon has been doing with many publishers as their initial ebook distribution deals come up for renegotiation) and tor wants to shift its preferred ebook retail to a competitor like waterstone’s, it will have to bank on its readers being willing to buy their books all over again.”). see ana carolina bittar, unlocking the gates of alexandria: drm, competition and access to e books 1 (july 25, 2014) (unpublished manuscript), http://ssrn.com‌/abstract=2620354 [http://perma.cc/6rhh 6qm4] (“[s]ince each bookseller uses a different proprietary drm scheme on their e books, compatible with a limited number of reading platforms, consumers face problems with interoperability. for example, a kindle owner cannot buy books from barnes & noble, and a nook owner cannot buy books from apple. this lack of interoperability can increase barriers to entry, switching costs, and network effects. consequently, consumers are often locked into an e book ecosystem, which permits booksellers to act as gatekeepers of the e book market.”). see alexandra alter, your e book is reading you, wall st. j. (july 19, 2012, 3:24 pm), http://‌http://www.wsj.com/articles/sb10001424052702304870304577490950051438304 [http://‌perma.cc‌/6lqw bckj] (“the major new players in e book publishing amazon, apple and google can easily track how far readers are getting in books, how long they spend reading them and which search terms they use to find books. book apps for tablets like the ipad, kindle fire and nook record how many times readers open the app and how much time they spend reading. retailers and some publishers are beginning to sift through the data, gaining unprecedented insight into how people engage with books.”). response of plaintiff united states to public comments on the proposed final judgment, supra note 250, at 22. october 2015   apple, b&n, kobo, and google: a look at the rest of the ebook market, author earnings (oct. 2015), http://authorearnings.com/report/october 2015 apple bn kobo and  google a look at the rest of the ebook market [http://‌perma.cc‌/gkn4 sa43] (noting that amazon also sells 85% of indie e books). statistics and facts about amazon, statista (2016), http://www.statista.com/topics/846‌/amazon [http://perma.cc/yr3q d7ye]. sony gives up on selling e readers, bbc (aug. 5, 2014), http://www.bbc.com/news‌/technology 28663878 [http://perma.cc/d29u w7nz]. jim milliot, b&n cut nook investment by 74% in third quarter, publishers weekly (mar. 7, 2014), http://www.publishersweekly.com/pw/by topic/industry news‌/booksell ing‌/article‌/61331‌ b n cut nook investment by 74 in third quarter.html [http://‌perma.cc‌/846m  28hz]. nor is the decline of amazon competitors unique to e books. “now, with borders dead, barnes & noble struggling and independent booksellers greatly diminished, for many consumers there is simply no other way to get many books than through amazon.” streitfeld, supra note 1. id. see id. several journalists have tracked instances of price discrimination in e commerce. see, e.g., julia angwin et al., the tiger mom tax: asians are nearly twice as likely to get a higher price from princeton review, propublica (sept. 1, 2015), http://www.propublica.org/article‌/asians nearly twice as likely to get higher price from princeton review [http://‌perma.cc‌/l96n szkr]; jennifer valentino devries et al., websites vary prices, deals based on user information, wall st. j. (dec. 24, 2012), http://www.wsj.com‌/articles‌/sb10001424127887323777204578189391813881534 [http://perma.cc/bf3s zx3c]. roberto a. ferdman, amazon changes its prices more than 2.5 million times a day, quartz (dec. 14, 2013), http://qz.com/157828/amazon changes its prices more than 2 5 million  times a day [http://perma.cc/w25a eunp]. but recent reporting does suggest that amazon manipulates how it presents pricing in order to favor its own products. see julia angwin & surya mattu, amazon says it puts customers first. but its pricing algorithm doesn’t, propublica (sept. 20, 2016), http://‌www‌.propublica.org‌/article‌/amazon says it puts customers first but its  pricing‌ algo‌rithm doesnt [http://perma.cc/rr6c fts4] (“[t]he company appears to be using its market power and proprietary algorithm to advantage itself at the expense of sellers and many customers.”). see lina khan, why you might pay more than your neighbor for the same bottle of salad dressing, quartz (jan. 19, 2014), http://qz.com/168314/why you might pay more than your  neighbor for the same bottle of salad dressing [http://perma.cc/kvl3 qcbc]. id. id. (“‘coupons will be the doorway in to differential pricing,’ said scott anderson, principal consultant at fico, which provides data analytics and decision making services. in other words, we could all end up paying significantly different amounts for the same items, even if we see the same prices while browsing.”). as a group of authors stated in a recent letter to the justice department: [t]he corporation’s detailed knowledge of the buying habits of millions of readers which it amasses through a minute by minute tracking of their actions online puts it in a powerful position to use such ‘personalized’ pricing and marketing to influence the decisions of readers and thereby extract the most amount of cash possible from each individual. letter from authors united to william j. baer, assistant att’y gen., antitrust div., dep’t of justice (july 14, 2015), http://www.authorsunited.net/july‌/longdocument‌.html [http://perma.cc‌/l9rn yesr]; see also david streitfeld, accusing amazon of antitrust violations, authors and booksellers demand inquiry, n.y. times (july 13, 2015), http://‌www‌.ny‌times.com/2015/07/14/technology/accusing amazon of antitrust violations authors and‌ book‌sellers demand us inquiry.html [http://perma.cc/g8qf 5lyy] (reporting on the authors united letter to the assistant attorney general and its claim that amazon seems to be “engag[ing] in content control” in its decisions to sell certain books). see supra section i.a. for accounts of how some retailers have successfully implemented discriminatory pricing online, see supra note 270 and accompanying text. streitfeld, supra note 1. see phillip areeda & herbert hovenkamp, fundamentals of antitrust law 7 72 (2010) (“there may be cases in which a predator who makes more than one product or operates in more than one region selects only one for below cost pricing but reaps recoupment benefits in all . . . . the courts have not dealt adequately with this problem.”); leslie, supra note 94, at 1720 (“courts apparently do not appreciate the prospect of recoupment in another market.”); timothy j. trujillo, note, predatory pricing standards under recent supreme court decisions and their failure to recognize strategic behavior as a barrier to entry, 19 j. corp. l. 809, 813, 825 (1994) (“the . . . recoupment analysis in matsushita, cargill, and brooke refers to recoupment only in the market in which the predation actually occurs. thus, the court’s analyses and test . . . ignore the possibility that successful predation could occur because the dominant firm can spread its gains from predation over several markets.”). see leslie, supra note 94, at 1720 21. see randy kennedy, cash up front, n.y. times (june 5, 2005), http://‌http://www.nytimes.com‌/2005/06/05/books/review/cash up front.html [http://perma.cc/h9l2 rupu]. see james b. stewart, booksellers score some points in amazon’s spat with hachette, n.y. times (june 20, 2014), http://www.nytimes.com/2014/06/21/business/booksellers score some  points in amazons standoff with hachette.html [http://perma.cc/pd34 m28s]. id. see lavecchia & mitchell, supra note 6, at 2. acquisition and maintenance of monopsony power are still recognized harms under the sherman and clayton acts, even though few cases are brought today. but cf. complaint at 12 13, united states v. george’s foods, llc, no. 5:11 cv 00043 gec (w.d. va. may 10, 2011) (arguing that a company’s acquisition of a chicken complex would “substantially lessen competition for the purchase of broiler grower [chicken farmer] services . . . in violation of section 7 of the clayton act”). boris kachka, book publishing’s big gamble, n.y. times (july 9, 2013), http://‌www‌.nytimes.com/2013/07/10/opinion/book publishings big gamble.html [http://‌perma.cc‌/ap5x] (“the merger, announced last october and completed on july 1 after regulatory approval, shrinks the big six, which publish about two thirds of books in the united states, down to the big five.”). id. publishers have also merged divisions internally. see, e.g., alex shephard, the vanishing mass market: penguin merges two mass market publishing houses to create new mass market publishing house, melville house (june 26, 2015), http://www.mhpbooks.com/the  van‌ishing mass market penguin merges two mass market publishing houses merge to  create new mass market publishing house [http://perma.cc/f4v6 gglu]. cross subsidization schemes can have widely different effects, depending on how the two submarkets are or are not interrelated. in amazon’s case, losses do have cross market effects: amazon prices below cost in order to generate higher sales in another line of business; its losses in one market actively boost another market. by contrast, the cross subsidization model used by publishers has no analogous crossover effects. a publisher might decide to publish an obscure book, even if it knows it will lose money, and subsidize those losses through profits made on a more popular book. however, the publisher’s choice to sustain a loss on the obscure book does not boost sales of its popular books. the major difference in amazon’s case is that it is an online platform. the market effects across its different segments are significant in ways that do not hold for brick and mortar stores or other non platform entities. letter from authors united to william j. baer, supra note 276. id. id. that said, the doj did consider how rising consolidation in the media sector specifically in the context of a proposed merger between two newspapers would risk undermining the spread of ideas. press release, office of pub. affairs, u.s. dep’t of justice, justice department files antitrust lawsuit to stop l.a. times publisher from acquiring competing newspapers (mar. 17, 2016), http://www.justice.gov/opa/pr/justice department files  antitrust lawsuit stop la times publisher acquiring competing [http://perma.cc/3mny  8xze] (“‘newspapers continue to play an important role in the dissemination of news and information to readers . . . .’” (quoting assistant attorney general bill baer of the doj’s antitrust division)). at the height of its market share, this figure was closer to 90%. after apple entered the market, amazon’s share fell slightly and then stabilized around 65%. see packer, supra note 239. stone, supra note 239, at 297 (“quidsi [grew] from nothing to $300 million in annual sales in just a few years. . . .”). id. at 295 96. id. at 296. id.; brad stone, the secrets of bezos: how amazon became the everything store, bloomberg (oct. 10, 2013, 5:57 am), http://www.bloomberg.com‌/news‌/articles/2013 10 10/jeff  bezos and the age of amazon excerpt from the everything store by brad stone [http:// perma.cc/td96 g6hv]. brad tuttle, it’s target versus amazon in the battle for moms, time (sept. 26, 2013), http://business.time.com/2013/09/26/its target versus amazon in the battle for  moms [http://perma.cc/uje6 y3r9]. stone, supra note 239, at 297. id. at 298. jason del ray, how jeff bezos crushed diapers.com so amazon could buy diapers.com, all things d (oct. 10, 2013, 5:09 am), http://allthingsd.com/20131010/how jeff  bezos crushed diapers com so amazon could buy diapers com [http://perma.cc/k98d  vgnp]. will oremus, the time jeff bezos went thermonuclear on diapers.com, slate (oct. 10, 2013, 12:37 pm), http://www.slate.com/blogs/future_tense/2013/10/10/amazon‌_book‌_how‌_jeff_bezos_went_thermonuclear_on_diapers_com.html [http://perma.cc/a9je vnwr]. stone, supra note 297 (noting that amazon offered $540 million, giving quidsi a forty eight hour window in which to respond and “rachet[ing] up the pressure,” telling quidsi that bezos was “such a furious competitor [that he] would drive diaper prices to zero if they went with walmart,” in which case “the amazon mom onslaught would continue”). id. the ftc reviewed the deal under section 7 of the clayton act, the provision that governs mergers, as well as section 5 of the federal trade commission act, which targets general unfair practices. see letter from donald s. clark, sec’y, ftc, to peter c. thomas, simpson thacher & bartlett llp (mar. 23, 2011), http://www.ftc.gov‌/sites/default‌/files‌/documents‌/closing‌_letters/amazon.com inc./quidsi inc./110323amazonthomas.pdf [http://‌perma.cc‌/7e5a‌ lymb]; see also stone, supra note 297 (“the federal trade commission scrutinized the acquisition for four and a half months, going beyond the standard review to the second request phase, where companies must provide more information about a transaction. the deal raised a host of red flags, such as the elimination of a major player in a competitive category, according to an ftc official familiar with the review.”). see stone, supra note 239, at 298. “at this time, [amazon mom is] not accepting new members,” a company spokesman stated, declining to explain why. thad rueter, let’s hope amazon doesn’t make them wait until potty training ends, internet retailer (nov. 30, 2011, 3:35 pm), http://www‌.inte‌rnet‌re ‌tail‌er‌‌.com/2011/11/30/now amazon closes membership moms discount program [http://‌perma.cc‌/l76r xehp]. thad rueter, amazon tweaks its diaper program, moms vent and a competitor pounces, internet retailer (feb. 23, 2012, 4:19 pm), http://www.internetretailer.com/2012‌/02‌/23‌/amazon tweaks diaper program moms vent competitor pounces [http://‌perma.cc‌/gbu7  kynf]. id. laura owen, amazon cuts the benefits again in amazon mom, its prime program for parents, gigaom (sept. 29, 2014, 7:42 am), http://gigaom.com/2014/09/29/amazon cuts the  benefits again in amazon mom its prime program for parents [http://perma.cc/993p  jpzn]. in response to complaints about amazon’s abrupt change, followed by customers recommending diapers.com, one customer stated, “diapers.com has a different shipping program, but they were recently bought out by amazon. i would think that their shipping policies might change soon as well.” shopaholic, comment to amazon mom benefits misleading!, amazon (june 15, 2011, 4:56 pm), http://www.amazon.com‌/forum‌/baby‌/ref‌=cm_cd_pg_pg2?_encoding=utf8&cdforum=fxskwdwqrz03wu&cdpage=2&cdthread=tx1zc5gmkb4jeqp [http://perma.cc/e5nh jcj7]. amazon leads the online market for baby supplies, holding 43%. walmart and target follow, with 23% and 18%, respectively. target, walmart, amazon dominate the online baby goods market, bus. insider (apr. 22, 2016, 8:30 pm), http://www.businessinsider.com/target  walmart amazon dominate the online baby goods market 2016 4 [http://perma.cc‌/85kz‌ qqcr]. bork, supra note 32, at 153. id. id. see generally tim wu, the master switch: the rise and fall of information empires (2010) (arguing that all american information industries since the telephone have resulted in monopolies); candeub, supra note 225 (suggesting that network effects may produce anticompetitive results in the online market because of the cognitive effort necessary to switch search engines); nathan newman, search, antitrust, and the economics of the control of user data, 31 yale j. on reg. 401 (2014) (proposing a new approach to antitrust investigations that would focus on the anticompetitive effects of corporations’ control of personal data); frank pasquale, privacy, antitrust, and power, 20 geo. mason l. rev. 1009 (2013) (advocating reforms to privacy and antitrust policy to take into account the connections between market share and control over data). for example, amazon acquired zappos.com in 2009 but chose to maintain the brand as a standalone rather than absorbing it within amazon.com. sarah lacy, amazon buys zappos; the price is $928m., not $847m., techcrunch (july 22, 2009), http://‌techcrunch‌.com‌/2009/07/22/amazon buys zappos [http://perma.cc/5ngv p2au]. see, e.g., leslie, supra note 94, at 1728 29. jet.com, the one company that did try to tackle amazon, was recently purchased by walmart. see steven davidoff solomon, tech giants gobble start ups in an antitrust blind spot, n.y. times: dealbook (aug. 16, 2016), http://‌http://www.nytimes.com‌/2016‌/08‌/17‌/bus‌iness‌/dealbook/expect little antitrust challenge to walmarts bid for jet com.html [http://‌perma.cc/wrc9 qgkr]. moore, supra note 14. google has stated that its biggest rival in search is not bing or yahoo, but amazon. see jeevan vasagar & alex barker, amazon is our biggest search rival, says google’s eric schmidt, fin. times (oct. 13, 2014), http://www.ft.com‌/cms/s‌/0/748bff70  52f2 11e4 b917 00144feab7de.html [http://perma.cc/3phw 77ew]. newman, supra note 316, at 409. see vauhini vara, can jet.com take on amazon and win?, new yorker (july 21, 2015), http://www.newyorker.com/business/currency/can jet com take on amazon and  win [http://perma.cc/s2k2 smha]. shannon pettypiece & selina wang, wal mart to acquire jet.com for $3.3 billion to fight amazon, bloomberg (aug. 8, 2016), http://www.bloomberg.com/news/articles/2016 08  08/wal mart agrees to buy jet com for 3 billion to fight amazon [http://‌perma.cc‌/fek9‌ nmr9]. see grace noto, jet.com acquisition not enough to challenge amazon, experts say, bank innovation (aug. 22, 2016), http://bankinnovation.net/2016/08/jet com acquisition not  enough to challenge amazon experts say [http://perma.cc/cq3y 6j8x] (“[t]here remains a healthy amount of skepticism in the industry about anyone’s ability to topple amazon from its throne. ‘amazon is quite dominant and will continue to be in the foreseeable future, because the resources they are putting into ecommerce and all of their other initiatives are formidable,’ said vice president and principal analyst at forester research sucharita mulpuru kodali. ‘walmart has slowly been gaining some share in some ways, but it’s often two steps forward, one step back for them.’”); pettypiece & wang, supra note 323 (“amazon is such a machine . . . . you aren’t going to out amazon amazon.”). see tuttle, supra note 298. see id. (noting that amazon’s market share is double target’s). see infra section iv.d. see lavecchia & mitchell, supra note 6, at 18. laura stevens & greg bensinger, amazon seeks to ease ties with ups, wall st. j. (dec. 22, 2015, 8:52 pm), http://www.wsj.com/articles/amazon seeks to ease ties with ups  1450835575 [http://perma.cc/8385 a7aj]. in its 10 k, ups states that while no single customer accounts for more than 10% of its consolidated revenue, its business remains vulnerable to the choices of some big clients. ups, inc., annual report (form 10 k) 15 (jan. 29, 2016), http://‌http://www.sec.gov‌/archives/edgar/data/1090727/000109072715000008/ups 12312014x10k.htm [http://‌perma‌.cc/tu7t b4q4] (“[s]ome of our large customers might account for a relatively significant portion of the growth in revenue in a particular quarter or year . . . . these customers could choose to divert all or a portion of their business with us to one of our competitors, demand pricing concessions for our services, require us to provide enhanced services that increase our costs, or develop their own shipping and distribution capabilities. if these factors drove some of our large customers to cancel all or a portion of their business relationships with us, it could materially impact the growth in our business and the ability to meet our current and long term financial forecasts.”). see stephanie clifford & claire cain miller, wal mart says ‘try this on’: free shipping, n.y. times (nov. 11, 2010), http://www.nytimes.com/2010/11/11/business/11shipping.html [http://perma.cc/ulm8 3asc] (“[a]ir shipping prices for big retailers are about 70 percent less than for a small company. shipping at amazon costs about 4 percent of sales, and amazon loses money on it because it offers marketing benefits . . . . [s]hipping at small sites usually costs about 35 percent of sales . . . .”). congress passed the robinson patman act precisely to prevent this sort of “waterbed effect.” as i describe earlier, chicago school hostility to robinson patman has meant that both the antitrust agencies and courts have largely stopped enforcing the law. see supra text accompanying notes 77 108. see laura stevens, ‘free’ shipping crowds out small retailers, wall st. j. (apr. 27, 2016, 10:39 pm), http://www.wsj.com/articles/for online shoppers free shipping reigns  supreme 1461789381 [http://perma.cc/r7yl 2fts]. see paul w. dobson & roman inderst, the waterbed effect: where buying and selling power come together, 2008 wis. l. rev. 331, 336 37 (“if, in contrast, the discounts to one or a few buyers were to put other buyers in a worse bargaining position to the extent of them paying even higher prices (e.g., premiums rather than discounts) then the knock on consequence could be higher retail prices and dampened competition. this latter case is an instance of a waterbed effect where differential buyer power means that some buyers gain at both the relative and absolute expense of other buyers.”); john kirkwood, powerful buyers and merger enforcement, 92 b.u. l. rev. 1485, 1544 (2012) (“[suppose a firm] demands price or other concessions from . . . suppliers . . . . [and] that those concessions nevertheless cause the suppliers to increase prices to smaller buyers or otherwise worsen their terms.”). dobson & inderst, supra note 333, at 337. press release, amazon, amazon launches new services to help small and medium sized businesses enhance their customer offerings by accessing amazon’s order fulfillment, customer service, and website functionality (sept. 19, 2006), http://phx.corporate  ir.net/phoenix.zhtml?c=97664&p=irol newsarticle&id=906817 [http://perma.cc/mc8g  9lrj]. id. (“amazon.com customers can now use offers such as amazon prime and free super saver shipping when buying products with the ‘fulfilled by amazon’ icon next to the offering listing.”). see paul cole, should you use amazon discounted ups shipping?, sellerengine (2012), http://‌sellerengine.com/should you use amazon discounted ups shipping [http://‌perma.cc/54nd b2wh] (“probably the most common choice is to use amazon’s discounted rate with ups. for many sellers, this is the way to go. it’s a lower rate than you’re likely to receive from ups or fedex if you have your own account. currently, amazon’s ups rate is about 20% cheaper than an average fedex account, $.38/lb. compared to $.48/lb.”). before building out its own delivery operations, amazon used (among others) ups and fedex. see, e.g., marcus wohlsen, amazon takes a big step towards finally making its own deliveries, wired (sept. 25, 2014, 2:30 pm), http://www.wired.com/2014/09/amazon  takes big step toward competing directly ups [http://perma.cc/42at y4jk]. daniella kucera, why amazon is on a building spree, bloomberg (aug. 29, 2013 8:51 am), http://www.bloomberg.com/bw/articles/2013 08 29/why amazon is  on a warehouse building spree [http://perma.cc/999p mlsn]. leonard, supra note 207. greg bensinger & laura stevens, amazon’s newest ambition: competing directly with ups and fedex, wall st. j. (sept. 27, 2016, 1:45 pm), http://www.wsj.com/articles/ama zons newest ambitioncompeting directly with ups and fedex 1474994758 [http://‌perma.cc‌/bb7f pxjp]. id. jillian d’onfro, here are all of amazon’s warehouses in the us, bus. insider (mar. 24, 2015, 1:48 pm), http://www.businessinsider.com/how many fulfillment centers does amazon  have in the us 2015 3#ixzz3f3ax8zda [http://perma.cc/tf8g bj72]. bensinger & stevens, supra note 341. see spencer soper, ebay ends same day delivery in u.s. in face of amazon effort, bloomberg (july 27, 2015, 3:53 pm), http://www.bloomberg.com/news/articles/2015 07 27/ebay  ends same day delivery in u s in face of amazon effort [http://perma.cc/5td9 xdc5]. stone, supra note 206; see also jp mangalindan, amazon’s prime and punishment, fortune (feb. 21, 2012, 8:02 pm), http://fortune.com/2012/02/21/amazons prime and punish‌ment [http://perma.cc/68kl 8c5z] (“‘if you’re a competing retailer, it should be in your plans that prime will someday be a next day or same day delivery service with 100,000 free movies it’s going in that direction,’ chimes analyst [matt] nemer. if that day comes, prime won’t just be a nominal loyalty program or balance sheet customer acquisition cost. it’ll be a monolith few can compete with.”). jason del ray, amazon buys thousands of its own truck trailers as its transportation ambitions grow, recode (dec. 4, 2015, 8:00 am), http://recode.net/2015/12/04/amazon  buys thousands of its own trucks as its transportation ambitions grow [http://‌perma.cc‌/8lbf ncyb]; leonard, supra note 207. robin lewis, amazon’s shipping ambitions are larger than it’s letting on, forbes (apr. 1, 2016, 8:30 am), http://www.forbes.com/sites/robinlewis/2016/04/01/planes trains trucks‌ and ships/#260c3aa1408c [http://perma.cc/hz4v kcle]. farhad manjoo, think amazon’s drone idea is a gimmick? think again, n.y. times (aug. 10, 2016), http://www.nytimes.com/2016/08/11/technology/think amazons drone delivery  idea is a gimmick think again.html [http://perma.cc/9a7f vay6]. id. see del ray, supra note 347; see also leonard, supra note 207 (“others believe that amazon will make a business out of its delivery network, as it did with amazon web services, thereby challenging the world’s leading shipping companies . . . . the fear has spread to wall street, where analysts say investors worry about what amazon’s strategy means for the shipping industry. ‘the natural inclination among any observers of the market when they see amazon is to be scared,’ says david vernon, a sanford c. bernstein analyst who tracks the shipping market. ‘amazon is the epitome of a zero sum game.’”). a tie is created when a firm requires consumers interested in purchasing good a to purchase good a (the tying good) and good b (the tied good) from the firm. the practice forces an unwilling customer to purchase the tied good while a refusal to deal turns away a willing customer. see einer elhauge, tying, bundled discounts, and the death of the single monopoly profit theorem, 123 harv. l. rev. 397, 466 67 (2009). see will mitchell, how to rank your products on amazon the ultimate guide, startupbros, http://startupbros.com/rank amazon [http://perma.cc/6x3e knhf]. “one of the biggest themes is the challenge of getting product to your consumers, and relying on [fulfillment companies], but they don’t have another option, they can’t make investments [if] amazon is in fulfillment.” ray, supra note 232. moore, supra note 14. see bensinger, supra note 223. see angus loten & adam janofsky, sellers need amazon, but at what cost?, wall st. j. (jan. 14, 2015, 6:30 pm), http://www.wsj.com/articles/sellers need amazon but at what  cost 1421278220 [http://‌perma.cc/4myb phqn] (“if you say no to amazon, you’re closing the door on tons of sales.”). id. id. greg bensinger, competing with amazon on amazon, wall st. j. (june 27, 2012, 6:15 pm), http://www.wsj.com/articles/sb10001424052702304441404577482902055882264 [http://‌perma.cc/w9ag bdrc]. nancee halpin, third party merchants account for more than three quarters of items sold on amazon, bus. insider (oct. 16, 2015, 2:55 pm), http://www.businessinsider.com/third  party merchants drive amazon grow 2015 10 [http://perma.cc/5xl9 ntcq]. loten & janofsky, supra note 357. bensinger, supra note 360. id. id. id. id. id. spencer soper, got a hot seller on amazon? prepare for e tailer to make one too, bloomberg (apr. 20, 2016, 7:00 am), http://www.bloomberg.com/news/articles/2016  04 20/got a hot seller on amazon prepare for e tailer to make one too [http://‌perma‌.cc/79gl 5a8e]. id. (quoting a report by skubana, an e commerce company). id. george anderson, is amazon undercutting third party sellers using their own data?, forbes (oct. 30, 2014, 9:23 am), http://www.forbes.com/sites/retailwire/2014/10/30 /is amazon undercutting third party sellers using their own data [http://perma.cc/sqe3  seu8]. as one analyst said of amazon employees, “they’re data scientists. they know what people want and they’re going to mop it up.” nick bravo, amazon private labels threaten manufacturers, trendsource (july 5, 2016, 8:00 am), http://trustedinsight.trendsource.com‌/trusted insight trends/amazon private labels threaten manufacturers [http://perma.cc‌/w7ve lxss]. see alistair barr, amazon finds startup investments in the ‘cloud,’ reuters (nov. 9, 2011, 3:44 pm), http://www.reuters.com/article/amazon cloud idusn1e7a727q20111109 [http://‌perma.cc/bh4q jpw7]. id. european antitrust authorities do investigate how concentrated control over data may have anticompetitive effects, and unlike u.s. antitrust authorities investigated the facebook/whatsapp merger for this reason. complaints from companies that their rivals are acquiring an unfair competitive advantage through acquiring a firm with huge troves of data may also prompt u.s. authorities to take the exclusionary potential of data more seriously. in september, salesforce announced it would urge regulators in the united states and in europe to block microsoft’s bid to acquire linkedin, on grounds that the deal would foreclose competition by giving microsoft too much control over data. see rachael king, salesforce.com to press regulators to block microsoft linkedin deal, wall st. j. (sept. 29, 2016, 7:18 pm), http://www.wsj.com/articles/salesforce com to press regulators to block  microsoft linkedin deal 1475178870 [http://perma.cc/5eze gvbc]. see david s. evans, the antitrust economics of multi sided platform markets, 20 yale j. on reg. 325 (2003); king, supra note 377; david s. evans & richard schmalensee, the antitrust analysis of multi sided platform businesses (coase sandor inst. for law & econ., working paper no. 623, 2012). see julian wright, one sided logic in two sided markets, 3 rev. network econ. 44 (2004). see david s. evans, platform economics: essays on multi sided business 112 (2011). two sided markets are platforms that have two distinct user groups that offer each other network benefits. see evans, supra note 379, at 112 (“the pricing and investment strategies that firms in two sided markets use to ‘get both sides on board’ and ‘balance the interests of both sides’ raise novel ones. these pricing and other business strategies are needed to solve a fundamental economic problem arising from the interdependency of demand on both sides of the market. in some cases, the product could not even exist without efforts to subsidize one side of the market or the other.”). brody mullins et al., inside the u.s. antitrust probe of google, wall st. j. (mar. 19, 2015, 7:38 pm), http://www.wsj.com/articles/inside the u s antitrust probe of google  1426793274 [http://perma.cc/h4pz jz9k]. mark scott & james kanter, google faces new round of antitrust charges in europe, n.y. times (july 14, 2016), http://www.nytimes.com/2016/07/15/technology/google european  union antitrust charges.html [http://perma.cc/2syp 5z4b]. see supra note 319. stucke & grunes, supra note 47, at 163. this is a form of “scale of data” network effect rather than a “traditional network effect.” id. at 170. novell inc. v. microsoft corp., 505 f.3d 302, 308 (4th cir. 2007). see guy rolnik & asher schechter, is the digital economy much less competitive than we think it is?, promarket (sept. 23, 2016), http://promarket.org/digital economy much  less competitive think [http://perma.cc/k2r6 tb7q]. interestingly, agencies have required vertically merging parties to erect firewalls to prevent anticompetitive use of data. see, e.g., in re coca cola co., 150 f.t.c. 520, 2010 wl 9549986 (2010) (ordering coca cola to set up a firewall to ensure that its merger with a bottling subsidiary does not give it access to information from its competitor, dr. pepper snapple group); press release, ftc, ftc puts conditions on coca cola’s $12.3 billion acquisition of its largest north american bottler (sept. 27, 2010), http://www.ftc.gov/news  e‌vents/press releases/2010/09/ftc puts conditions coca colas 123 billion acquisition its [http://‌perma‌.cc/bp7u ey33] (discussing the coca cola settlement and a similar pepsico settlement). mike shields, amazon looms quietly in digital ad landscape, wall st. j. (oct. 6, 2016, 3:28 pm), http://www.wsj.com/articles/amazon looms quietly in digital ad landscape  1475782113 [http://‌perma.cc/5acl mj7d]. see eric newcomer, uber draws fresh amazon comparisons as growth trumps profit, bloomberg (july 1, 2015, 12:30 am), http://www.bloomberg.com/news/articles/2015 07 01/uber  draws fresh comparison with amazon as growth trumps profit [http://perma.cc/ayf9  9rj7]. uber does not just lose money in the aggregate by reinvesting more than it generates, but also by pricing rides below what it pays drivers. in other words, it is pricing below its variable costs which enforcers traditionally read as a sign of predatory pricing. “as anyone who has taken an uber and talked to the driver knows, sometimes the fare collected from the rider is less than what uber pays the driver.” id. charles clover & leslie hook, uber losing more than $1bn a year in china, fin. times (feb. 18, 2016, 7:25 pm), http://www.ft.com/content/f889f812 d664 11e5 829b  8564e7528e54 [http://perma.cc/6u6p jq7q]. “‘they’re wise to expand as fast as they can,’ said lou shipley, a lecturer at the mit sloan school of management. ‘i would liken it to what amazon did with books.’” newcomer, supra note 391. douglas macmillan & telis demos, uber valued at more than $50 billion, wall st. j. (july 31, 2015, 8:50 pm), http://www.wsj.com/articles/uber valued at more than 50 billion  1438367457 [http://perma.cc/t6gw sy2j]. leslie hook, uber cranks up ride hailing battle with $3.5 bn saudi investment, fin. times (june 2, 2016), http://www.ft.com/content/3ac7c982 2879 11e6 8b18 91555f2f4fde [http://‌perma.cc/rxv8 tpbp]. eugene kim, billionaire vc says that most companies will eventually pay an amazon ‘tax,’ bus. insider (jan. 21, 2016, 4:21 am), http://www.businessinsider.in/billionaire vc  says that most companies will eventually pay an amazon tax/articleshow/50662558.cms [http://‌perma.cc/4zgs vsl7]. the supreme court has affirmed the validity of emh. see halliburton co. v. erica p. john fund, 134 s. ct. 2398, 2409 11, 2417 (2014). horizontal merger guidelines, supra note 44, at 4 (“for example, a purchase price in excess of the acquired firm’s stand alone market value may indicate that the acquiring firm is paying a premium because it expects to be able to reduce competition or to achieve efficiencies.”). ironically, the logic that is motivating investors the idea that it is worth encouraging platforms to bleed money to establish a dominant position and capture the market, at which point these firms will be able to recoup those losses maps on to the logic underpinning current predatory pricing doctrine. the main issue is how narrowly the law currently conceives of recoupment, which does not account for how amazon can leverage its multiple lines of business. see tim hwang & madeleine clare elish, the mirage of the marketplace: the disingenuous ways uber hides behind its algorithm, slate (july 27, 2015, 6:00 am), http://www.slate.com/articles/technology/future_tense/2015/07/uber_s_algorithm‌_and‌_the_mirage_of_the_marketplace.html [http://perma.cc/b5ur p9pn]. see felix salmon, why the internet is perfect for price discrimination, reuters (sept. 3, 2013), http://blogs.reuters.com/felix salmon/2013/09/03/why the internet is perfect for price discrimination [http://perma.cc/nz4e svjj]. see david singh grewal, before peer production: infrastructure gaps and the architecture of openness in synthetic biology, 20 stan. tech. l. rev. (forthcoming 2017). the justice department wrote, “[a]s more retailers purchase bazaarvoice’s prr platform, the bazaarvoice network becomes more valuable for manufacturers because it will allow[ ] them to syndicate content to a greater number of retail outlets. the feedback between the manufacturers and retailers creates a network effect that is a significant and durable competitive advantage for bazaarvoice.” complaint at 18, united states v. bazaarvoice, inc., no. 13 0133 2014 (n.d. cal. jan. 10, 2013), 2014 wl 203966. terrell mcsweeny, comm’r, ftc, remarks to the u.s. chamber of commerce at tecnation 2016 (sept. 20, 2016), http://www.ftc.gov/system‌/files/documents‌/public‌_state‌ments‌/985773‌/mcsweeny_ _tecnation_2016_9 20 16.pdf [http://‌perma‌.cc‌/n7ga yn5p]. see supra section i.a. see stucke, supra note 38; horizontal merger guidelines, supra note 44, at 2. see k. sabeel rahman & lina khan, restoring competition in the u.s. economy, in untamed: how to check corporate, financial, and monopoly power 18, 18 (nell abernathy et al. eds., 2016). see leslie, supra note 94, at 1753. see id. at 1759. id. at 1758. admittedly, this approach would not reach vertical integration that arose due to internal expansion. that type of vertical integration could be covered by the prophylactic approach discussed below. for a list of ftc thresholds, see revised jurisdictional thresholds for section 7a of the clayton act, 81 fed. reg. 4,299 (jan. 26, 2016). see stucke & grunes, supra note 47, at 74. for some of the potential concerns raised by this deal, see kevin carty, will uber rouse the trustbusters?, slate (aug. 9, 2016, 11:22 am), http://www.slate.com‌/articles/technology‌/future_tense/2016/08/uber_s_deal_with_didi_chuxing_could_open_it_up_to_antitrust _scrutiny.html [http://perma.cc/f4nt ayrz]. see id. see generally stucke & grunes, supra note 47 (analyzing how big data issues relate to competition laws and policy). see, e.g., scott & kanter, supra note 384; benjamin edelman & damien geradin, android and competition law: exploring and assessing google’s practices in mobile 1 2 (harvard bus. sch. negotiation, orgs. & mkts. unit, working paper no. 17 018, 2016), http:// ssrn.com/abstract=2833476 [http://perma.cc/7ja6 rxpn]. this is a version of the “separations principle” that tim wu recommends for information industries. wu, supra note 316, at 305 (“more than anything else, the preceding chapters chronicle the corrupting effects of vertically integrated power. a strong stake in more than one layer of the industry leaves a firm in a position of inherent conflict of interest. you cannot serve two masters, and the objectives of creating information are often at odds with those of disseminating it. that is the very first reason for the separations principle.”). see supra section iv.d. this prophylactic approach has also been applied in the power industry. for example, in 1996, the federal energy regulatory commission issued a mandate requiring vertically integrated utilities to “functionally separate their generation, transmission, and distribution business, and provide transmission access to all generators on transparent, nondiscriminatory terms.” sandeep vaheesan, reviving an epithet: a new way forward for the essential facilities doctrine, 3 utah l. rev. 911, 927 (2010). see, e.g., saule t. omarova, the merchants of wall street: banking, commerce, and commodities, 98 minn. l. rev. 265, 268, 274 75 (2013); bernard shull, banking and commerce in the united states, 18 j. banking & fin. 255, 267 (1994); bernard shull, the separation of banking and commerce in the united states: an examination of principal issues, 8 fin. mkts. institutions & instruments 1, 1 (1999). omarova, supra note 420, at 268. bank holding company act of 1956, pub. l. no. 84 511, § 4, 70 stat. 133, 135 37 (codified as amended at 12 u.s.c. §§ 1841 48 (2012)). omarova, supra note 420, at 268 (citing 12 u.s.c. § 1843(k)(1)(a)). id. at 275. see id. at 275 76. id. at 276. id. id. at 275 77. notably, several banking regulations that previously sought to prevent concentration of systemic risk in our financial system were repealed by congress in the 1990s leading in part to the “too big to fail” crisis. see johnson & kwak, supra note 179. see sara e. needleman & greg bensinger, small businesses are finding an unlikely banker: amazon, wall st. j. (oct. 4, 2012, 1:17 pm), http://www.wsj.com/articles‌/sb10000‌87239‌6‌39‌0443‌493304578034103049644978 [http://perma.cc/puh8 xfks]; eric newcomer & olivia zaleski, inside uber’s auto lease machine, where almost anyone can get a car, bloomberg (may 31, 2016, 11:00 am), http://www.bloomberg.com‌/news/‌articles/2016  05 31/inside uber s auto lease machine where almost anyone can get a car [http://‌perma.cc‌/a7am vzrj]; richard waters & barney jopson, google makes first foray into credit business, fin. times (oct. 7, 2012), http://‌http://www.ft.com‌/content‌/55be35f2 1093 11e2  a5f7 00144feabdc0 [http://perma.cc/nc6p 2eeg]. chris isidore, target: hacking hit up to 110 million customers, cnn money (jan. 11, 2014, 6:20 pm), http://money.cnn.com/2014/01/10/news/companies/target hacking [http://‌perma.cc/d6w3 tm75]. there have been some policy debates about whether google should be considered “critical infrastructure.” see, e.g., eric engleman, google exception in obama’s cyber order questioned as unwise gap, bloomberg (mar. 5, 2013, 12:01 am), http://www.bloomberg.com‌/news/articles/2013 03 05/google exception in obama s cyber order questioned as unwise  gap [http://perma.cc/5z2m hvu3]. that debate has not yet extended to amazon, but given the growth of amazon web services it may be appropriate. that platforms’ concentration of economic power also concentrates political power is becoming increasingly evident. amazon, google, and uber have all shifted regulatory debates and in some cases directly shaped outcomes. see liam dillon, uber and lyft are winning at the state capitol here’s why, l.a. times (may 7, 2016, 12:05 am), http://‌http://www.latimes‌.com‌/politics/la pol sac‌ why‌ uber‌ is winning in california 20160507 snap html‌story.html [http://perma.cc/7brx f39u]; peter elkind & doris burke, amazon’s (not so secret) war on taxes, fortune (may 23, 2013, 10:42 am), http://fortune.com/2013‌/05/23/amazons not  so secret war on taxes [http://‌perma‌.cc/ln8g gtnn]; simon marks & harry davies, revealed: how google enlisted members of us congress it bankrolled to fight $6bn eu antitrust case, guardian, (dec. 17, 2015, 7:30 am), http://‌http://www.theguardian.com‌/world/2015‌/dec‌/17/google lobbyists congress antitrust brussels eu [http://perma.cc/nla7 knvc]; anna palmer & scott wong, lobbying drives uber’s expansion, politico, (sept. 18, 2013, 11:16 pm), http://‌http://www.politico‌.com/story/2013/09/uber taxi lobbying expansion 097028 [http://perma.cc/b3la 7wud]; sam jewler & taylor lincoln, mission creep y: google is quietly becoming one of the nation’s most powerful political forces while expanding its information collection empire, pub. citizen (nov. 2014), http://www.citizen.org/documents‌/google‌ political spending mission creepy.pdf [http://perma.cc/83qr x3pa]; martin moore, tech giants and civil power, ctr. for study media, comm. & power (apr. 2016), http://‌‌www‌.kcl.ac.uk/sspp/policy institute/cmcp/tech giants and civic  power.pdf [http://‌‌perma‌.cc/d76x nalm]. see lavecchia & mitchell, supra note 6; barry c. lynn, killing the competition: how new monopolies are destroying open markets, harper’s mag., feb. 2012, at 27. william boyd, public utility and the low carbon future, 61 ucla l. rev. 1614, 1616 (2014). id. at 1643. see christopher leslie, antitrust law as public interest law, 2 u.c. irvine l. rev. 885, 887 (2012). 94 u.s. 113 (1877). id. at 126. id. at 130. id. boyd, supra note 434, at 1635. id. at 1643. see k. sabeel rahman, from railroad to uber: curbing the new corporate power, bos. rev. (may 4, 2015), http://bostonreview.net/forum/k sabeel rahman curbing new corporate  power [http://perma.cc/y6tu e449]; k. sabeel rahman, private power and public purpose: the public utility concept and the future of corporate law in the new gilded age, address at the association of american law schools’ 110th annual meeting (jan. 8, 2016) (transcript on file with author). net neutrality is a form of common carrier regime. for an exposition of why net neutrality and search neutrality should apply to major platforms, see frank pasquale, internet nondiscrimination principles: commercial ethics for carriers and search engines, 2008 u. chi. legal f. 263. a “fair return” has been variously defined. for an overview of public utility regulatory regimes, see william a. prendergast, public utilities and the people 2 (1933) (“what is a utility? . . . it is commonly used to denote a business the product or use of which serves the public generally . . . . [it is] a business which cannot choose its clients or customers.”). i am indebted to david kim for making this connection at the yale law journal author seminar workshop on october 12, 2016. boyd, supra note 434, at 1656. open internet, fed. comm. commission, http://www.fcc.gov/general/open internet [http://‌perma.cc/zl6s 6q38]. vaheesan, supra note 419, at 911. 708 f.2d 1081, 1132 33 (7th cir. 1982). id. this last factor allows for efficiency defenses. vaheesan, supra note 419, at 921. id. at 918 (citing marianna lao, networks, access, and ‘essential facilities,’ 62 smu l. rev. 557 (2009)). the three cases that vaheesan identifies are united states v. terminal railroad ass’n, 224 u.s. 383 (1912); united states v. associated press, 326 u.s. 1 (1945); and otter tail power co. v. united states, 410 u.s. 366 (1973). see verizon commc’ns inc. v. law offices of curtis v. trinko, llp, 540 u.s. 398, 410 (2004). see brett frischmann & spencer weber waller, revitalizing essential facilities, 75 antitrust l.j. 1, 3 (2008). id. at 4. for more pieces grappling with the possibility of applying the “essential facilities” doctrine to internet platforms, see frank pasquale, dominant search engines: an essential cultural & political facility, in the next digital decade 401 (berin szoka et al. eds., 2011); and zachary abrahamson, comment, essential data, 124 yale l.j. 576 (2014). see a giant problem, economist (sept. 17, 2016), http://‌http://www.economist .com‌/news‌/leaders/21707210 rise corporate colossus threatens both competition and legit‌i‌macy bu‌s‌iness [http://perma.cc/dnn2 ykl3] (“[t]he most striking feature of business today is . . . the entrenchment of a group of superstar companies at the heart of the global economy . . . . but they have two big faults. they are squashing competition, and they are using the darker arts of management to stay ahead.”); davidoff solomon, supra note 319. in a striking speech welcoming the public and political attention towards antitrust, assistant attorney general for antitrust renata hesse stated, “antitrust is too important to be left solely in the hands of antitrust experts.” renata hesse, assistant att’y gen., antitrust div., dep’t of justice, remarks at the 2016 global antitrust enforcement symposium: and never the twain shall meet? connecting popular and professional visions for antitrust enforcement (sept. 20, 2016), http://www.justice.gov/opa/speech/acting assistant attorney  general renata hesse antitrust division delivers opening [http://perma.cc/84e6 h4jb]. theo francis & ryan knutson, wave of megadeals tests antitrust limits in u.s., wall st. j. (oct. 18, 2015), http://www.wsj.com/articles/wave of megadeals tests antitrust limits in  u s 1445213306 [http://perma.cc/wa8j atzt]. too much of a good thing, economist (mar. 26, 2016), http://‌www‌.economist‌.com‌/news/briefing/21695385 profits are too high america needs giant dose competition too  much good thing [http://perma.cc/4ypa g3hb]. see eduardo porter, with competition in tatters, the rip of inequality widens, n.y. times (july 12, 2016), http://www.nytimes.com/2016/07/13/business/economy/antitrust  competition inequality.html [http://perma.cc/8z8a kcfj]; america’s monopoly problem, new am., http://www.newamerica.org/open markets/events/americas monopoly problem [http://perma.cc/64yf 6kzv]; marc jarsulic et al., reviving antitrust, ctr. for am. progress (june 29, 2016), http://www.americanprogress.org‌/issues/economy‌/report‌/2016/06/29/140613/reviving antitrust [http://perma.cc/qcv8 52tv]; making antitrust work for the 21st century, ctr. for equitable growth, http://equitablegrowth.org‌/event/making antitrust work for the 21st century [http://perma.cc/hax7 brk2]; untamed: how to check corporate, financial, and monopoly power, roosevelt inst. (2016), http://rooseveltinstitute.org/wp content/uploads/2016/06/untamed final single  pages‌.pdf [http://perma.cc/fm9r dxjj]. see neil irwin, liberal economists think big companies are too powerful. hillary clinton agrees, n.y. times (oct. 4, 2016), http://www.nytimes.com/2016/10/05/upshot/lib eral economists think big companies are too powerful hillary clinton agrees.html [http://‌perma.cc/wxa9 rx2j]; hillary clinton’s vision for an economy where our businesses, our workers, and our consumers grow and prosper together, hillary clinton, http://www.hillaryclinton.com/briefing/factsheets/2016/10/03/hillary clintons  vision for an economy where our businesses our workers and our consumers grow and  pros‌per together [http://perma.cc/2ehg pt9z] (“promote free and fair competition and stopping big businesses from hurting small businesses”). one of the most striking aspects of hesse’s speech is that she distances herself from a strict consumer welfare based approach departing from current orthodoxy: but, although we believe competition maximizes consumer welfare, the ultimate standard by which we judge practices is their effect on competition, not on consumer welfare. it is certainly relevant when a merger will lead to higher prices and reduced output because these results are hallmarks of reduced competition. but the law instructs us to examine whether a merger may substantially lessen competition and that means we must sometimes look to other evidence of harm to competition. hesse, supra note 460.

transcript this transcript was created using speech recognition software. while it has been reviewed by human transcribers, it may contain errors. please review the episode audio before quoting from this transcript and email transcripts@nytimes.com with any questions. all right, let’s start the show. love now and always. did you fall in love last night? just tell her i love her. the love was stronger than anything for the love of love. and i love you more than anything. what is love? just love. love. [music playing] from “the new york times,” i’m anna martin. this is “modern love.” every week, we bring you stories and conversations inspired by the modern love column. this week, i’m talking to the actor andrew garfield about his new movie, “we live in time.” this movie, i got to tell you, it wrecked me. andrew plays a man named tobias who falls in love with a woman named almut, who’s played by florence pugh. their story feels epic and expansive, but still somehow very intimate. it zooms in on these small, everyday moments that just feel so real to me. but that’s not to say it’s all sunshine and roses. tobias and almut go through the types of challenges most young couples can’t even imagine. and as you watch them navigate this messy stuff, the movie encourages us to turn inward and look a little closer at our own relationships. also, i just want to say something before we start going into this interview with andrew garfield. i thought it would be pretty straightforward, i figured we’d talk about “we live in time,” chat about how it relates to the modern love essay he chose to read, and then listen to him perform it. but during his reading, something happened, something that’s never happened on the show before. i don’t want to spoil it for you. so here we go. here’s my conversation with andrew garfield. andrew garfield, welcome to “modern love.” i’m so happy to be here. thank you for having me. i’m so happy you’re here with us in the studio. i have seen your new movie. it’s called “we live in time.” everyone should see it. but very briefly, it’s about a woman named almut, played by florence pugh, and your character, a man named tobias. they meet because   this isn’t a spoiler. this is in the trailer   she runs tobias over with her car. correct. which is a classic meet cute, isn’t it? yeah, a trope, if you will. you have your tinder, you have your hinge, you have your running over with a car. despite that violent start, they end up in a truly transformative relationship that spans all sorts of themes that we talk about here, on “modern love.” also, i cried so much. oh, good. i cried a lot. in a good, nice, cathartic   i mean, ask my producers. i was sitting next to them. it was one of those kind of hiccup y sobs with a lot of snot. that’s wonderful. and that’s what   that’s you want? that’s what we aim for, yeah. really? we’re trying to crack the old heart open. you really cracked my old heart open. there was seriously some stuff i needed to work through, clearly, so thank you. you’re so welcome. before we get too far into it, i want to ask, what drew you to this film at this point in your career in life? what did you want to explore through playing tobias? it definitely wasn’t a career move. it was a life move, because i was on a kind of unofficial sabbatical because i was tired and entering midlife looking around, looking forward, looking back, looking presently where i stood and wondering what we were doing, being alive at this point   the small questions you ask.   in the culture and in our civilization. and i didn’t have a good answer. and then in the middle of my sabbatical, a year in, i read this very, very beautiful script. and i could compare it to, oh, this is a big, massive clay that’s already begun to be carved by this amazing writer, nick payne. and the raw material of this piece is kind of the raw material that i’m longing to express and explore and deal with. so it felt like i was able to go into the next room with some friends and collaborators, including florence and john crowley, and go, ok, i’m going to make something with you guys. but just so you know, i’m bringing   this is all   it feels like i could have written this. very deeply relevant to the place you are in life. yeah, it felt very, very prescient and very kind of present, yeah. did you go in looking for answers to these big, big questions that you were asking yourself during this midlife   can i call it a crisis? i don’t know if you called it a crisis. i didn’t. but i can see what you’re   you’re reading into my demeanor and body language. for those of you who aren’t watching, it does look like i might be in a crisis. no, you have a cool jacket on. yeah. no, i wouldn’t call it a crisis, actually. i would call it a midlife exploration   reckoning? reckoning. a falling apart to put oneself back together. like, natural. it feels very, very natural. and i think the mislabeling   i think it becomes a crisis when you don’t consciously deal with the shit that’s going on. gotcha. but you were kind of dealing with it, it sounds like   consciously, for sure.   through inhabiting this role of tobias in this film. this felt like a sculptor or a potter. it’s like i was full of all the primal matter of what was transforming through. and this script and this film just allowed me to put some form on it. it was like i could get in and shape something. it was like it felt healing. it felt exorcising. yeah, it felt very, very beautiful. yeah. i mean, the best way that i could describe this film is just to say that it feels extremely real. the movie’s full of these moments that you can imagine yourself in. you see tobias and almut washing dishes and talking after a dinner party, or they’re eating a biscuit in the tub together, or they’re cracking eggs for breakfast. and through all these intimate, small, everyday moments, you can just tell that these characters love each other deeply. it feels like you’re watching a real life couple live their life and try to figure so much out. i want to know, what do you hope people feel when they witness these moments? i think what’s amazing about the film and about, as you say, these small, more ordinary, extraordinary moments is it’s all of us. if they feel representative of these liminal spaces between the larger, more explosive, dramatic moments of a partnership or of a life, and i think people will watch and feel connected to their own lives in a way that maybe they haven’t been if they’ve been running around in this kind of late stage capitalist nightmare we’re in. say that again. i mean, i told you i was sobbing. clearly, it brought up a lot. it was the right movie for me to see   oh, good, good.   at the right time. say more. no. [both laugh] oh, fuck you, man. i asked the question. this is some bullshit. people aren’t going to get what they need unless we meet in the middle, man. this is   no, i’m just kidding. i’m entirely kidding. my editor is like, no, no, no. i’m totally kidding. but at the same time, i’m not. i was going through a big breakup. i’ll just say that. and so i think that   and also, and we’ll get to this, but the big fight that almut and tobias had was so   i’m 30 years old, so   we should cut all of this. but it was very   the good news is you have the right to. i know. it’s just, that conversation and that fight felt like when i could   i have had. so it was very   it hit. yep. yep, yep, yep, yep. good, good. ok. so there are these beautiful, small moments, and they’re also balanced out by these very painful scenes, these tough points in the story where tobias and almut are grappling with the fact that she’s been diagnosed with cancer and the very real prospect that there might not be many more mornings with eggs for breakfast or biscuits in the bath. what do you think this movie says about how to hold on   ugh. oh, no. you don’t like this question? no, i love it. it’s just impossible. go on, go on. that sigh was heavy. yeah, man. what do you think this movie says about how to hold on to the beauty of those moments when you’re really scared to lose them? and sorry, it is a very big question i’m posing to you. but the problem is is you can’t hold on to anything. it’s all a letting go. this is all a letting go, so it’s emotional. yeah. this life is all a letting go. and the idea of holding on   i like the idea of savoring things. i think that the jesuits are pretty good at that. i learned that from the jesuits. not where i thought that was going. segue. they had this. wonderful prayer called the examine that they do every night, and it’s pretty much the same as   i don’t know if you’ve seen the film “about time,” the richard curtis film. the domhnall gleeson character, basically, he starts by saying, so what i did is i started living each day twice and choose to see deeper and be more present in every small, banal, seemingly, moment. and you haven’t got to be a jesuit or a catholic or even religious to do this, but it’s a beautiful practice, at the end of the day, every night, just to lay down, close your eyes, go back over the day, think of the three or four moments where, as the jesuits would say, where you felt god’s presence very near you, but fill in the blank, where you felt alive, where you felt close to yourself, where you felt connected to the mystery, the unseen forces. and you re enter those moments and you savor the feeling of   it could be something to do with nature, a conversation with a friend, time spent with a godchild, whatever it is. and then you go through the whole day and you notice where you were aware of that mystery, and then you notice, again, where you missed the mark and you ask for forgiveness and you ask to do better tomorrow. it takes 15 minutes, and usually, you fall asleep during and you have a better sleep because you’re connecting and you’re savoring the things that matter. but my god, it’s all so transient and it’s all leaving constantly. and the people that i’m inspired by most and that i respect and love the most are the people that   i think i’m thinking now about mike nichols, who i got to do “death of a salesman” with, and he became a friend and a mentor before he passed away in the last 10 years. i remember him as someone who seemed to be giving himself away like seed, just planting himself like seed as he exited this earth. and he was able to move with such lightness. and i think he got to the place of wisdom to know that he can’t take any of it with him. he just wants to leave it all here for other people to feast upon. do you do that prayer every night? when i’m a good boy. so, no, unfortunately. well, it’s interesting. i was going to ask you where the emotion lay for you, because when you said you can’t hold on to anything, it clearly struck a chord. but i’m listening to you speak, i realize the emotion was perhaps   i mean, break it down for me. it doesn’t feel completely like sadness. there’s a real liberation in the fact that we can’t hold on. it’s sorrow. there’s no joy without sorrow. there’s no sorrow without joy. i mean, that wonderful pixar film “inside out” taught us that. but i really love those films. i think they are a great manual for us. i agree. i’m sure you could be in one. i don’t know. this is my pitch, i guess. no, i really feel like the only gateway to true vitality through a broken heart is acknowledging that our hearts are meant to break and break and break and live by breaking. that’s definitely a quote. it’s not mine. certainly. it might be the jesuits. no, i think it’s the beginning of “angels in america.” i think that’s a quote that tony kushner has. basically, the idea is that the only way our hearts can expand is by cracking open and cracking open further and further and further. the finite nature of us being here is the only thing that makes it meaningful. it’s like the concept that a friend taught me once, called onism. o n i     i s m. and i believe   if someone could be googling this just to make sure i’m not incorrect   i believe it is a   i can tell you. no, no. i want to say first, and then you can   it’s like a test. like a game and a test. it’s both. so i’m going to say it’s the sense and knowing and the sorrow of knowing that you will only be able to live your own life. you won’t be able to have all of the experiences you want, that i won’t be able to read all the books in the library, see all the films in the cinema, know all the people on earth, visit all the countries, know all of history, all of time. there’s a kind of an imprisonment in the life that you have, realizing you’re trapped to a certain amount of experience as you’re alive. that is it, yes. yes! [laughs]: the ai overview when i google it is telling me that you’re very correct. but i have to   this concept of the prison of one experience, one body, one life, that is super on the nose to the modern love essay you’ve selected to read for us today. yes. this essay is called “learning to measure time in love and loss” by chris huntington. before we get into it, can you just tell me, why did you choose this essay? it chose me. you guys sent me a few, and this was the first one i read, and it felt like i   it was a combination of being dragged inside of it and diving inside of it simultaneously. and i felt like i knew the ending at the beginning and it does the magic trick that it’s talking about. and then i read the other few and i thought they were wonderful, but i kept on thinking about this one while i was reading the other few, so i was like, oh, i have to do that one. [music playing] when we come back, andrew reads chris huntington’s essay, “learning to measure time in love and loss.” you will not want to miss it. [music playing] “learning to measure time in love and loss,” by chris huntington. “for about 10 years. i worked full time in prisons as a teacher. i logged more than 40 hours a week behind those fences, including a long winter at one facility that had been a cereal factory and stood near the highway in downtown indianapolis. it was a rock of a building with finger thick grilles on the windows. during my first week there, an inmate laughed when i asked him to reset the wall clock. ‘a few minutes off?‘, he said. ‘we need one that goes by months and years. what do we care about five minutes?’ i mention this only because his words summed up the love story that had defined my life. when my wife left me, i was living in paris, which was not as romantic as it may sound because i was incredibly lonely. my bones ached, especially at the sound of accordions and train stations. all my plans had come to nothing. i had failed at marriage, failed at work, and had no money to speak of. sometimes i would see my ex wife on the street and she would turn away with an eagerness that could not be ignored. one night, i came upon two boys robbing an old vietnamese man, and when i tried to intervene and make them stop, they turned on me. i began to wonder if maybe a part of me wanted to die. i moved back to the united states and took the job in the prison. i met the inmate who helped me with the clock. i also met an inmate who had salt and pepper hair, huge biceps, and a pair of ridiculous glasses no one in the free world would ever wear. this inmate’s name was mike. mike showed me a folder of clippings and photocopied certificates from all the educational programs he had completed in prison. he had earned a ged and a bachelor’s degree, as well as certifications in the usual programs like small engine repair and barbering. he had kept letters from his counselors, chaplains, and teachers. in these letters, supervisor after supervisor claimed to love him, but it all struck me as kind of sad and awkward. i couldn’t read the whole thing. i had my own problems. i had taken a tiny apartment and spent my evenings trying to write a book and corresponding with women i had met on the internet. i took all my lost chances personally. when i first met mike, he said, ‘these young guys, they just get locked up and they’ve got five years to do and they hate it. when you’re 20, five years is a long time, so they act out. i used to be like that, but now i’m two thirds done, so every day is taking me closer to the door. when i think that, i can get up in the morning and smile.’ a month later, my supervisor told me mike had been locked up for more than 16 years and had at least eight more to go. arrested when he was a teenager. he wasn’t going to be released until he was in his mid forties. he had raped the sheriff’s daughter in his home town. it didn’t matter how fat his folder of supportive letters got. ‘i used to be angry,’ mike told me. ‘i’d pick fights over nothing. i was mad to be in prison, and i wanted everyone else to be mad, too. but then i realized, man, this is my life. do i want to be that guy? always mad? i’m not going to get married or have a family. not today. maybe never. i’m going to be here. i’m a prisoner. and there are some things i’m never going to do, and i can spend my life being mad about that or i can try something else.’ i asked him what he had decided. ‘i decided to be the best prisoner i could be,’ he said. this all relates to the clock on the wall because i fell in love again and this became my new life. she was from new hampshire and had never been to france. she left me for two years to write a memoir about her mother, but then she came back. she wrote me letters, and i felt i knew her entire apartment because i studied the tiny photos she sent me of her sitting at her desk or standing by her curtains. we were married, but not before i went to new hampshire and met her mother. that afternoon, her mother could barely look at me. she was 48 and very sick, just a few months away from being dead. my wife drove me through her home town and i saw the lake where she had spent her summers when she was a teenager   not quite 5 feet tall, and voluptuous in swimsuits long gone. we ate ice cream and talked quietly in the afternoon. she held my hand. she gave me an expensive watch that i kept wearing even after the crystal was scratched. our son is from ethiopia, where i once saw a dead horse on the side of the road that resembled an abandoned sofa. i asked a friend if we needed to do something about that, and he said the wild dogs would take care of it. we took our son far away from all of that five years ago, which may seem like a kindness, except it also hurts. i wish our son could know those dirt roads and the way they looked like chocolate milk in the rain, the way the hillsides were a delicate green, the way our driver would not go into the zoo because he was disgusted by the concrete ugliness of the lion cages. i wish my son’s birth parents could see him swimming. he is such a good swimmer. i wish they could hear him reading books aloud. i wish he could know them. i wish our son could speak oromo, the language of his birth. our story, so full of love, is also full of loss. when i was younger, i used to get up early in the morning to write. now i get up early to make my son breakfast. i rarely stay up late. i like my job, but i have to work after dinner most nights. i can reach my laptop only if i lean over the pile of markers and a tiny buzz lightyear on my desk. my wife hasn’t worn a bikini for six years and probably never will again. she says she’s too old, which makes me sad. she’s a beautiful woman with gray in her hair. my parents no longer drive at night  ” sorry. [sniffles] fucking hell. i’m sorry. no, it’s beautiful. do you want to take a break? no, it’s ok. are you sure? yeah. [sniffles] oh, dear. can i ask you   this might take you out of it, so tell me to stop. but what’s hitting you so much in this section? i don’t know. it’s mysterious. this is why art is so important. it can get us to places that we can’t get to any other way. i think what’s hitting me   i don’t know. i don’t know. i don’t know. it’s the preciousness. it’s the preciousness, as we’ve been talking about, and it’s the longing for more. it’s like we all pass with so much more to know with so much more longing. mike passed away. mike nichols. yeah, and he was in the middle of prepping his next movie, and in the middle of his favorite pasta, with his favorite person in the world. and it’s hard to understand why that has to be the setup. i don’t know. i don’t know why it’s affecting me so deeply. but i just i feel this man’s writing and it feels like   for all of us, it feels like he’s tapping into something so universal   a longing to be here. and there are moments in our film when i watched it in toronto with an audience where all i saw was   it was in the quiet moments, particularly after a diagnosis or something heavy   all i saw was two people that want to live. they’re not asking for much. they just want their fair shot at creating a life. and i think that’s all of us. i think we all just want a fair shot at creating a life. i don’t know. i’m sad. i’m sad. i’m sad at losing anyone. i’m sad at losing anything. i’m sad at the transience of certain relationships in my life. i’m sad at losing my mother, of course. i’m sad at the idea of losing my father, of not being there when my nephews are my age or older. i’m sad at the concept of not having children of my own. but the sadness is longing. it’s true longing, and there’s no shame in it. and i think we feel   i can feel myself right now putting the modern conditioning taboo on this very, very pure feeling i’m having and expressing with you. and i find that sad. what do you mean? like you’re trying to push   there’s a part of me that’s like, ok, now, come on now, dude. pull yourself together. i wish you wouldn’t until you’re ready. well, i appreciate that. but i think that is the killer. and that impulse that is not mine, that is inherited, that is conditioned from our culture to not feel to calcify the heart, to not reveal the heart, to not trust another person with our hearts, is what gets us into trouble. and i think it’s so easy now to feel hopeless in this current state of the world. being alive right now, it can feel quite hopeless. and we can feel quite numb, we can feel quite disconnected and isolated. but   i don’t know. i feel like the feeling, the longing, lives in all of us, the longing to connect, the longing to love, the longing to risk. yeah. i really appreciate you being so open with us. i mean, it brings a new depth, i think, to this piece. maybe there’s also a cracking open happening with this essay, similar to what you mentioned reading the script for the first time   for sure.   of “we live in a time,” and i’m grateful to be able to witness it or be in the same room as it. hold space. you’re holding a lovely space for it. thank you. well, can i meta with you for a second? get into it. no one has ever stopped in this way, when we’ve done these essay reads, and i find it very   it’s very interesting for me to experience because i’m listening to you read this and inhabit the voice and the experience of the author. and then you break out in this way that feels at once very from what i know of you but also very much still in this world as well. and it’s very interesting. i feel like you’re bridging many different worlds. i also feel like you’re kind of inhabiting the role of tobias again and speaking from that perspective that i saw in the film. so i feel like you’re world jumping a bit and it’s very interesting. it’s really neat, and that’s the wrong word. this is neat. totally neat. but i want this to be a more normal type of interaction for people. wonderful. whenever you’re ready. yeah, i’m ready. you stopped at   yeah, i remember. ok, wonderful. thank you. [sigh] “my parents no longer drive at night and have fewer and fewer hobbies. this summer, my mother made a box of cookies just for my son, and i was happy to see them talking quietly in the kitchen. i’m constantly aware of lost opportunities. i used to think such lost opportunities were beautiful towns flashing by my train windows, but now i imagine they are lanterns from the past, casting light on what’s ahead. my life is constrained in hundreds of ways and will be for years as my son grows up and my wife and i grow older. i don’t know when i will return to paris, if ever. i don’t know when or if i will finish my book. i do know i love eating breakfast with my son. my wife wants us to open only one box of cereal at a time to keep the flakes from going stale, but my son and i get up first, so we eat what we want. we like the change. he gives me a thumbs up whenever i open a new box. in our family, we talk about our days and recount our best part and worst part at dinner time. last week, i was reading a bedtime story with my son and was distracted by the laptop and work waiting on my desk. but i turned to him, and i said, we forgot best part, worst part. what was the best part of your day? he pushed his chin into my shoulder and said, ‘this is, daddy. this is.’ i felt a complete fool. i had to close my eyes for a moment, and then we agreed that his worst part was when he had cried about eating chickpeas. when i was a boy, i hated beets. i hope i can protect my son from beets until he’s old enough to hold in the tears. they’re not worth it. when the battery in my watch died, i still wore it. there was something about the watch that said, it doesn’t matter what time it is. think in months, years. someone loves you. where are you going? there are some things you will never do. it doesn’t matter. there is no rush. be the best prisoner you can be. big breath. [groans]: there’s a poem that it makes me think of. please. can i? yeah, of course. it’s   are you on the wi fi? no, i think i have it, actually. i have a photo of it at handy because i was thinking about it. it’s called “the man watching,” and it’s by rilke. i’m happy to read it. do you want to read it? do i want to read it? no, i’m happy to read it. i’m happy to read it. because it’s a little bit of a tricky one because the structure is a little weird, but i’ll read it. ok. i think you should certainly read it, not me. ok, so this is “the man watching” by rainer maria rilke, translated by robert bly, one of my favorite translators of rilke’s poetry and a great poet unto himself. ok. i can tell by the way the trees beat after so many dull days on my worried window panes that a storm is coming and i hear the far off field say things that i can’t bear without a friend i can’t love without a sister the storm, the shifter of shapes, drives on across the woods and across time and the world looks as if it had no age the landscape, like a line in the psalm book, is seriousness and weight and eternity what we choose to fight is so tiny what fights with us is so great if only we would let ourselves be dominated as things do by some immense storm we would become strong too, and not need names when we win, it’s with small things and the triumph itself makes us small what is extraordinary and eternal does not want to be bent by us i mean, the angel who appeared to the wrestlers of the old testament when the wrestlers’ sinews grew long like metal strings he, the angel, felt them under his fingers like chords of deep music whoever was beaten by this angel who often simply declined the fight they went away proud and strengthened and great from that harsh hand that kneaded him as if to change his shape winning does not tempt that man. this is how he grows   by being defeated, decisively by constantly greater beings wow. why did that   we get two readings for the price of one, a. hey, i’m not getting paid shit for this, actually. yeah, that’s journalism. can you tell me   why? and i want to dive   yeah. it’s a poem about humility in the face of the greater opponents, the things that don’t want to be bent by us. it’s about the prison. yeah. i want to ask you about the prison. that last line is also, of course, echoed in the beginning of the piece. and i want to really close read that final sentence, “be the best prisoner you can be.” what is the prison? this body. onism. onism. this body, the gravity, the time of my birth to the time of my death. my white skin, my brown hair, my brown eyes, the shoe size that i have. i’m never going to know what it’s like to have smaller feet. it’s awesome. i knew it. fuck. it rocks, yeah. but the prison, and i think the best prisoner is the best version of this, the best andrew. i like the idea that at the end of our lives, if there is some celestial being that we meet, that i like the idea them asking, hey, were you andrew? did you do it? did you live into all of what you were meant to live into, or as much as you could? i don’t know. and the prison being the fated thing, the thing that we have no control over. and it’s just, how do we surrender to our fate so that we can live into our destiny? did you just come up with that right now? i wish i could’ve. i wish. i could lie and say yes. no, there’s a really wonderful mythologist thinker called michael mead, who i really love. and he’s full of wisdom and he’s someone that i look to a lot and i read around a lot and listen to his talks. he was a collaborator of robert bly, who translated that poem. yeah. [music playing] we’re going to take a quick break. we’ll be right back. can i ask you a bit more about the prison, and then i promise we’ll move on? no, it’s good. do you think we’re alone in there? oh, man. isn’t that interesting? because the thing that comes to mind as you ask that is, i think the loneliness we feel here and the longing that we feel here is a kind of unconscious remembrance of a fact. and that fact is that we are all actually one thing. like, i do   that does sound like i could be a burning man, and i’m aware of that. but i do think we are   i’m going to say something that illustrates this, hopefully, in a way that   i don’t know. when my mom passed, something made sense to me. and it could just be my imagination. it could be magical thinking, and i’m actually ok with that. i got the sense that she was back running with her angel tribe. for real, though. for real. because in life, she was an angel on this earth. she was a helper. she was a carer. she was a giver. she was a healer in the small, little subtle ways that are mostly invisible. and she would get frustrated with herself because she couldn’t be in a thousand places at once. she was frustrated with the kind of prison of her own carnal form. onism again. and then the sense i got when she passed, one of the things that i saw in a dream or i felt as a waking dream, i’m not sure, was, oh, she’s back with her tribe and she can be in the thousand places at once now because she’s pure spirit. she’s back with the everything. she’s back with the source of the mystery of where we all will go back to and where we all originated from. i don’t know. that’s just a theory. i can’t know. it could be absolute bullshit. i like that. i like it too. i really like that. it’s a lovely image. you’re bringing up your mom, which i’m grateful for. i wanted to ask you about your experience filming “we live in time,” given your mom’s passing from cancer a few years ago. did playing tobias teach you anything new or surprising about your grief and how to go on living after loss? damn. gosh. i think what the film does beautifully is it honors grief. it honors the experience of grief. it honors what the essay does that we read today as well. it acknowledges that we don’t get to be in charge of what we lose, how we lose it, and when. and i think i fight loss all the time. i try to resist loss all the time, foolishly and pigheadedly and egotistically. and i think in terms of the transient nature of letting go of everything, i had a friend that passed recently. sorry. thank you. and he was like a zen master, in some regard. not intentionally, he just was. and by the end of his life, he was allowing himself the sorrow and the joy of transitioning, as he said it, going over to the other side. and there was something so exquisite about his courage, his courage not only to be like, this is the way it has to be, but he’s also his courage to be like, i want to stay. i wish i could stay. i have more i want to do. i’m so sad i’m not going to be able to be your friend anymore. in fact, i felt like you were another son to me. oh, my gosh. i wish i could, but bye bye, and i love you. if i can follow in my friend’s footsteps in any way, that would be   and in mike nichols, as i said, giving himself away, holding it lightly, not wanting to be the richest man in the graveyard or caring about legacy, particularly, but just kind of, just   being able to be present while also giving grace to the future and embracing both in equal turn. i feel like to bring it back just once more to the movie, tobias and almut do a really admirable job of doing that, of balancing the present and also looking forward. how do you calibrate that balance in your own relationships? sorry, heavy hitters. we could go with easier questions. no, listen, i love this. i love it. this is what i want my life to be. it’s a tough question, actually. yeah. well, time, right? right, right. what is time? we live in it. what is it, though? the future has already happened. there’s no   it’s all connected. what i love, again, and i think what was said in this essay about the missed opportunities becoming lanterns to guide the way into a future, that was so beautiful. and i really got it in a deeper way in the second reading. i don’t know. it’s so hard to listen and trust one’s longing. i think we all have so much longing in us to live. we have an image of what our life wants to look like, feel like, tastes, sense. and i think it’s so hard to have the courage to follow those longings, to own those longings, to want what we want. because then what if we don’t fucking get it? and then the heartbreak comes. and the deepest longings are the ones that we are really afraid to mention, the ones that really could cost us. only as much as you feel comfortable sharing, i think one of my final questions to you, you’re speaking about the things you long for, and i wonder, whatever you feel comfortable sharing, what are some things   my own personal longings? yeah, in your own life. they’re pretty basic. they’re pretty garden variety. i find that surprising. no, but i long for love, to connect with life. to connect. this is very broad in general, but it’s like i want to live courageously. i want to live true to myself and whatever that means. i want to make things that are beautiful and that connect with people, that give people some solace, some comfort, that help them connect with the world and themselves. i want great friendships. i want great time with my family. i want healthy boundaried relationships with friends and partners and family members. right now, i’m working on codependency in my life. i want to know. for real. can you go into that? yeah, for sure. basically, i want to know where you end and i begin. i don’t want to feel like i have to take on and become and hold all of   me? all of me? all of you, particularly, specifically. are you single? that is none of your business. no, it’s fine. it’s a fine thing to ask. and yeah, weirdly, for whatever reason, i don’t give that part of my life anywhere publicly. i just don’t. yeah, i respect it. i had to ask. we’re a love show. no, no, it’s totally fine, and i understand the question. and i think it’s such a sacred thing. and i think becoming a public person is very challenging, i think, for anybody, let alone a sensitive little fuck like me. and i just know that you and i might have a really lovely conversation coming off of that question, but certain people listening from certain other publications will take that and turn it into something that is exploitative. i understand. and i’m just not interested in that. ok. i could talk forever, but i want to respect your time. you have a hard out, so i’m going to close us. ok. i’m trying to debate   you can tell me which one you’d rather do, because i was planning on ending this by playing the game that chris huntington, the author of the essay, plays with his kid, which is the best part, worst part of our days. nice. or   what?   we could do the thing that you were talking about with the jesuit prayers. and you could say four things that made you feel very   well, you don’t have to say four. you could say a couple of things that made you feel present today. you know what? i think they’re both the same thing. i think best part, worst part and the jesuit prayer are kind of very similar things. so let’s do best part, worst part. we’re both doing it? yeah. ok. it’s the least you could do. let’s start with worst. ok. go ahead. i have to think. me too. i got it. wow, ok. my worst part is that we had lunch an hour and a half after lunchtime today, and i got very cranky for an hour and a half because just the schedule, the nature of the schedule while we’re promoting this film. i get cranky, i get hangry, if i don’t. you’re nodding so much at everything. appreciate you. i mean, i get it. my worst part was this morning, there was a dead cockroach in my kitchen when i woke up. and i was all alone. [laughs]: why is that funny? because it was really scary. i get it. it was totally   have you had a cockroach? i’m laughing because it’s like an acknowledgment. have you seen the new york ones? i know about new york cockroaches, girl. have you encountered them, boy? of course i have, human person. ok, that’s true. ok, here’s what i did. i raided it a lot, even though it was already dead, and then i flushed it down the toilet. good for you. thank you. you’re brave. and you can do it on your own. thank you. but it would have been nicer if you had some kind of assistance. 100 percent. i understand. that was my worst part. now we do best part. was it the first thing in the morning as well? it was like, i was walking to get my coffee. yeah, right there in the middle. yeah, i’m sure you might have welled up a little bit in frustration. i feel like my worst is worse than yours. it absolutely is. my worst was not bad at all. i think you’re being coy. all right, let’s do   best part? yeah. i’m going to go first because we should end with you. we should end with you. yeah, sure. my best part was this conversation. very nice. thank you. thanks. i was going to say, my best part was   not the conversation. it was the end of this conversation. no, i would say my best part was absolutely generally this conversation, but also particularly in a moment of cracked open vulnerability, to feel safe, that i could allow that to be there and to feel that not only did i have my own, i could hold my own myself in that vulnerability, but i felt safe to do it in this room with you people. felt like quite a privilege, and i’m just very, very grateful for that. wow. well, we’re grateful for you, andrew garfield. thank you so much for this conversation. thank you. [music playing] i feel like that was kind of a dream state we were in for a while. i know. i feel like i have to breathe. yeah, it was a little odd. i want to shake it out. i know, i know. it was a little kind of portal. if you want to read the modern love essay featured in today’s episode, you can find the link in our show notes. and before we go, this year is the 20th anniversary of the modern love column. and if you’re a reader or a listener, we want to know how the column has affected you. has it made a difference in how you think about love in your own life? if it has, please leave us a message on our modern love hotline at 212 589 8962. that’s 212 589 8962. include your name and a number where we can call you back and you just might hear yourself on a future episode of the show. “modern love” is produced by reva goldberg, davis land, emily lange, and amy perl. it’s edited by lin levy and our executive producer, jen poyant. production management by kristina jose. special thanks to paula szuchman. the “modern love” theme music is by dan powell. original music by aman sahota, diane wong, and dan powell. this episode was mixed by daniel ramirez. studio support from maddy masiello and nick pittman. digital production by mahima chablani and nell gallogly. the modern love column is edited by daniel jones. miya lee is the editor of modern love projects. if you want to submit an essay or a tiny love story to “the new york times,” we’ve got instructions to do that in our show notes. i’m anna martin. thanks for listening. transcript this transcript was created using speech recognition software. while it has been reviewed by human transcribers, it may contain errors. please review the episode audio before quoting from this transcript and email transcripts@nytimes.com with any questions. all right, let’s start the show. love now and always. did you fall in love last night? just tell her i love her. the love was stronger than anything for the love of love. and i love you more than anything. what is love? just love. love. [music playing] from “the new york times,” i’m anna martin. this is “modern love.” every week, we bring you stories and conversations inspired by the modern love column. this week, i’m talking to the actor andrew garfield about his new movie, “we live in time.” this movie, i got to tell you, it wrecked me. andrew plays a man named tobias who falls in love with a woman named almut, who’s played by florence pugh. their story feels epic and expansive, but still somehow very intimate. it zooms in on these small, everyday moments that just feel so real to me. but that’s not to say it’s all sunshine and roses. tobias and almut go through the types of challenges most young couples can’t even imagine. and as you watch them navigate this messy stuff, the movie encourages us to turn inward and look a little closer at our own relationships. also, i just want to say something before we start going into this interview with andrew garfield. i thought it would be pretty straightforward, i figured we’d talk about “we live in time,” chat about how it relates to the modern love essay he chose to read, and then listen to him perform it. but during his reading, something happened, something that’s never happened on the show before. i don’t want to spoil it for you. so here we go. here’s my conversation with andrew garfield. andrew garfield, welcome to “modern love.” i’m so happy to be here. thank you for having me. i’m so happy you’re here with us in the studio. i have seen your new movie. it’s called “we live in time.” everyone should see it. but very briefly, it’s about a woman named almut, played by florence pugh, and your character, a man named tobias. they meet because   this isn’t a spoiler. this is in the trailer   she runs tobias over with her car. correct. which is a classic meet cute, isn’t it? yeah, a trope, if you will. you have your tinder, you have your hinge, you have your running over with a car. despite that violent start, they end up in a truly transformative relationship that spans all sorts of themes that we talk about here, on “modern love.” also, i cried so much. oh, good. i cried a lot. in a good, nice, cathartic   i mean, ask my producers. i was sitting next to them. it was one of those kind of hiccup y sobs with a lot of snot. that’s wonderful. and that’s what   that’s you want? that’s what we aim for, yeah. really? we’re trying to crack the old heart open. you really cracked my old heart open. there was seriously some stuff i needed to work through, clearly, so thank you. you’re so welcome. before we get too far into it, i want to ask, what drew you to this film at this point in your career in life? what did you want to explore through playing tobias? it definitely wasn’t a career move. it was a life move, because i was on a kind of unofficial sabbatical because i was tired and entering midlife looking around, looking forward, looking back, looking presently where i stood and wondering what we were doing, being alive at this point   the small questions you ask.   in the culture and in our civilization. and i didn’t have a good answer. and then in the middle of my sabbatical, a year in, i read this very, very beautiful script. and i could compare it to, oh, this is a big, massive clay that’s already begun to be carved by this amazing writer, nick payne. and the raw material of this piece is kind of the raw material that i’m longing to express and explore and deal with. so it felt like i was able to go into the next room with some friends and collaborators, including florence and john crowley, and go, ok, i’m going to make something with you guys. but just so you know, i’m bringing   this is all   it feels like i could have written this. very deeply relevant to the place you are in life. yeah, it felt very, very prescient and very kind of present, yeah. did you go in looking for answers to these big, big questions that you were asking yourself during this midlife   can i call it a crisis? i don’t know if you called it a crisis. i didn’t. but i can see what you’re   you’re reading into my demeanor and body language. for those of you who aren’t watching, it does look like i might be in a crisis. no, you have a cool jacket on. yeah. no, i wouldn’t call it a crisis, actually. i would call it a midlife exploration   reckoning? reckoning. a falling apart to put oneself back together. like, natural. it feels very, very natural. and i think the mislabeling   i think it becomes a crisis when you don’t consciously deal with the shit that’s going on. gotcha. but you were kind of dealing with it, it sounds like   consciously, for sure.   through inhabiting this role of tobias in this film. this felt like a sculptor or a potter. it’s like i was full of all the primal matter of what was transforming through. and this script and this film just allowed me to put some form on it. it was like i could get in and shape something. it was like it felt healing. it felt exorcising. yeah, it felt very, very beautiful. yeah. i mean, the best way that i could describe this film is just to say that it feels extremely real. the movie’s full of these moments that you can imagine yourself in. you see tobias and almut washing dishes and talking after a dinner party, or they’re eating a biscuit in the tub together, or they’re cracking eggs for breakfast. and through all these intimate, small, everyday moments, you can just tell that these characters love each other deeply. it feels like you’re watching a real life couple live their life and try to figure so much out. i want to know, what do you hope people feel when they witness these moments? i think what’s amazing about the film and about, as you say, these small, more ordinary, extraordinary moments is it’s all of us. if they feel representative of these liminal spaces between the larger, more explosive, dramatic moments of a partnership or of a life, and i think people will watch and feel connected to their own lives in a way that maybe they haven’t been if they’ve been running around in this kind of late stage capitalist nightmare we’re in. say that again. i mean, i told you i was sobbing. clearly, it brought up a lot. it was the right movie for me to see   oh, good, good.   at the right time. say more. no. [both laugh] oh, fuck you, man. i asked the question. this is some bullshit. people aren’t going to get what they need unless we meet in the middle, man. this is   no, i’m just kidding. i’m entirely kidding. my editor is like, no, no, no. i’m totally kidding. but at the same time, i’m not. i was going through a big breakup. i’ll just say that. and so i think that   and also, and we’ll get to this, but the big fight that almut and tobias had was so   i’m 30 years old, so   we should cut all of this. but it was very   the good news is you have the right to. i know. it’s just, that conversation and that fight felt like when i could   i have had. so it was very   it hit. yep. yep, yep, yep, yep. good, good. ok. so there are these beautiful, small moments, and they’re also balanced out by these very painful scenes, these tough points in the story where tobias and almut are grappling with the fact that she’s been diagnosed with cancer and the very real prospect that there might not be many more mornings with eggs for breakfast or biscuits in the bath. what do you think this movie says about how to hold on   ugh. oh, no. you don’t like this question? no, i love it. it’s just impossible. go on, go on. that sigh was heavy. yeah, man. what do you think this movie says about how to hold on to the beauty of those moments when you’re really scared to lose them? and sorry, it is a very big question i’m posing to you. but the problem is is you can’t hold on to anything. it’s all a letting go. this is all a letting go, so it’s emotional. yeah. this life is all a letting go. and the idea of holding on   i like the idea of savoring things. i think that the jesuits are pretty good at that. i learned that from the jesuits. not where i thought that was going. segue. they had this. wonderful prayer called the examine that they do every night, and it’s pretty much the same as   i don’t know if you’ve seen the film “about time,” the richard curtis film. the domhnall gleeson character, basically, he starts by saying, so what i did is i started living each day twice and choose to see deeper and be more present in every small, banal, seemingly, moment. and you haven’t got to be a jesuit or a catholic or even religious to do this, but it’s a beautiful practice, at the end of the day, every night, just to lay down, close your eyes, go back over the day, think of the three or four moments where, as the jesuits would say, where you felt god’s presence very near you, but fill in the blank, where you felt alive, where you felt close to yourself, where you felt connected to the mystery, the unseen forces. and you re enter those moments and you savor the feeling of   it could be something to do with nature, a conversation with a friend, time spent with a godchild, whatever it is. and then you go through the whole day and you notice where you were aware of that mystery, and then you notice, again, where you missed the mark and you ask for forgiveness and you ask to do better tomorrow. it takes 15 minutes, and usually, you fall asleep during and you have a better sleep because you’re connecting and you’re savoring the things that matter. but my god, it’s all so transient and it’s all leaving constantly. and the people that i’m inspired by most and that i respect and love the most are the people that   i think i’m thinking now about mike nichols, who i got to do “death of a salesman” with, and he became a friend and a mentor before he passed away in the last 10 years. i remember him as someone who seemed to be giving himself away like seed, just planting himself like seed as he exited this earth. and he was able to move with such lightness. and i think he got to the place of wisdom to know that he can’t take any of it with him. he just wants to leave it all here for other people to feast upon. do you do that prayer every night? when i’m a good boy. so, no, unfortunately. well, it’s interesting. i was going to ask you where the emotion lay for you, because when you said you can’t hold on to anything, it clearly struck a chord. but i’m listening to you speak, i realize the emotion was perhaps   i mean, break it down for me. it doesn’t feel completely like sadness. there’s a real liberation in the fact that we can’t hold on. it’s sorrow. there’s no joy without sorrow. there’s no sorrow without joy. i mean, that wonderful pixar film “inside out” taught us that. but i really love those films. i think they are a great manual for us. i agree. i’m sure you could be in one. i don’t know. this is my pitch, i guess. no, i really feel like the only gateway to true vitality through a broken heart is acknowledging that our hearts are meant to break and break and break and live by breaking. that’s definitely a quote. it’s not mine. certainly. it might be the jesuits. no, i think it’s the beginning of “angels in america.” i think that’s a quote that tony kushner has. basically, the idea is that the only way our hearts can expand is by cracking open and cracking open further and further and further. the finite nature of us being here is the only thing that makes it meaningful. it’s like the concept that a friend taught me once, called onism. o n i     i s m. and i believe   if someone could be googling this just to make sure i’m not incorrect   i believe it is a   i can tell you. no, no. i want to say first, and then you can   it’s like a test. like a game and a test. it’s both. so i’m going to say it’s the sense and knowing and the sorrow of knowing that you will only be able to live your own life. you won’t be able to have all of the experiences you want, that i won’t be able to read all the books in the library, see all the films in the cinema, know all the people on earth, visit all the countries, know all of history, all of time. there’s a kind of an imprisonment in the life that you have, realizing you’re trapped to a certain amount of experience as you’re alive. that is it, yes. yes! [laughs]: the ai overview when i google it is telling me that you’re very correct. but i have to   this concept of the prison of one experience, one body, one life, that is super on the nose to the modern love essay you’ve selected to read for us today. yes. this essay is called “learning to measure time in love and loss” by chris huntington. before we get into it, can you just tell me, why did you choose this essay? it chose me. you guys sent me a few, and this was the first one i read, and it felt like i   it was a combination of being dragged inside of it and diving inside of it simultaneously. and i felt like i knew the ending at the beginning and it does the magic trick that it’s talking about. and then i read the other few and i thought they were wonderful, but i kept on thinking about this one while i was reading the other few, so i was like, oh, i have to do that one. [music playing] when we come back, andrew reads chris huntington’s essay, “learning to measure time in love and loss.” you will not want to miss it. [music playing] “learning to measure time in love and loss,” by chris huntington. “for about 10 years. i worked full time in prisons as a teacher. i logged more than 40 hours a week behind those fences, including a long winter at one facility that had been a cereal factory and stood near the highway in downtown indianapolis. it was a rock of a building with finger thick grilles on the windows. during my first week there, an inmate laughed when i asked him to reset the wall clock. ‘a few minutes off?‘, he said. ‘we need one that goes by months and years. what do we care about five minutes?’ i mention this only because his words summed up the love story that had defined my life. when my wife left me, i was living in paris, which was not as romantic as it may sound because i was incredibly lonely. my bones ached, especially at the sound of accordions and train stations. all my plans had come to nothing. i had failed at marriage, failed at work, and had no money to speak of. sometimes i would see my ex wife on the street and she would turn away with an eagerness that could not be ignored. one night, i came upon two boys robbing an old vietnamese man, and when i tried to intervene and make them stop, they turned on me. i began to wonder if maybe a part of me wanted to die. i moved back to the united states and took the job in the prison. i met the inmate who helped me with the clock. i also met an inmate who had salt and pepper hair, huge biceps, and a pair of ridiculous glasses no one in the free world would ever wear. this inmate’s name was mike. mike showed me a folder of clippings and photocopied certificates from all the educational programs he had completed in prison. he had earned a ged and a bachelor’s degree, as well as certifications in the usual programs like small engine repair and barbering. he had kept letters from his counselors, chaplains, and teachers. in these letters, supervisor after supervisor claimed to love him, but it all struck me as kind of sad and awkward. i couldn’t read the whole thing. i had my own problems. i had taken a tiny apartment and spent my evenings trying to write a book and corresponding with women i had met on the internet. i took all my lost chances personally. when i first met mike, he said, ‘these young guys, they just get locked up and they’ve got five years to do and they hate it. when you’re 20, five years is a long time, so they act out. i used to be like that, but now i’m two thirds done, so every day is taking me closer to the door. when i think that, i can get up in the morning and smile.’ a month later, my supervisor told me mike had been locked up for more than 16 years and had at least eight more to go. arrested when he was a teenager. he wasn’t going to be released until he was in his mid forties. he had raped the sheriff’s daughter in his home town. it didn’t matter how fat his folder of supportive letters got. ‘i used to be angry,’ mike told me. ‘i’d pick fights over nothing. i was mad to be in prison, and i wanted everyone else to be mad, too. but then i realized, man, this is my life. do i want to be that guy? always mad? i’m not going to get married or have a family. not today. maybe never. i’m going to be here. i’m a prisoner. and there are some things i’m never going to do, and i can spend my life being mad about that or i can try something else.’ i asked him what he had decided. ‘i decided to be the best prisoner i could be,’ he said. this all relates to the clock on the wall because i fell in love again and this became my new life. she was from new hampshire and had never been to france. she left me for two years to write a memoir about her mother, but then she came back. she wrote me letters, and i felt i knew her entire apartment because i studied the tiny photos she sent me of her sitting at her desk or standing by her curtains. we were married, but not before i went to new hampshire and met her mother. that afternoon, her mother could barely look at me. she was 48 and very sick, just a few months away from being dead. my wife drove me through her home town and i saw the lake where she had spent her summers when she was a teenager   not quite 5 feet tall, and voluptuous in swimsuits long gone. we ate ice cream and talked quietly in the afternoon. she held my hand. she gave me an expensive watch that i kept wearing even after the crystal was scratched. our son is from ethiopia, where i once saw a dead horse on the side of the road that resembled an abandoned sofa. i asked a friend if we needed to do something about that, and he said the wild dogs would take care of it. we took our son far away from all of that five years ago, which may seem like a kindness, except it also hurts. i wish our son could know those dirt roads and the way they looked like chocolate milk in the rain, the way the hillsides were a delicate green, the way our driver would not go into the zoo because he was disgusted by the concrete ugliness of the lion cages. i wish my son’s birth parents could see him swimming. he is such a good swimmer. i wish they could hear him reading books aloud. i wish he could know them. i wish our son could speak oromo, the language of his birth. our story, so full of love, is also full of loss. when i was younger, i used to get up early in the morning to write. now i get up early to make my son breakfast. i rarely stay up late. i like my job, but i have to work after dinner most nights. i can reach my laptop only if i lean over the pile of markers and a tiny buzz lightyear on my desk. my wife hasn’t worn a bikini for six years and probably never will again. she says she’s too old, which makes me sad. she’s a beautiful woman with gray in her hair. my parents no longer drive at night  ” sorry. [sniffles] fucking hell. i’m sorry. no, it’s beautiful. do you want to take a break? no, it’s ok. are you sure? yeah. [sniffles] oh, dear. can i ask you   this might take you out of it, so tell me to stop. but what’s hitting you so much in this section? i don’t know. it’s mysterious. this is why art is so important. it can get us to places that we can’t get to any other way. i think what’s hitting me   i don’t know. i don’t know. i don’t know. it’s the preciousness. it’s the preciousness, as we’ve been talking about, and it’s the longing for more. it’s like we all pass with so much more to know with so much more longing. mike passed away. mike nichols. yeah, and he was in the middle of prepping his next movie, and in the middle of his favorite pasta, with his favorite person in the world. and it’s hard to understand why that has to be the setup. i don’t know. i don’t know why it’s affecting me so deeply. but i just i feel this man’s writing and it feels like   for all of us, it feels like he’s tapping into something so universal   a longing to be here. and there are moments in our film when i watched it in toronto with an audience where all i saw was   it was in the quiet moments, particularly after a diagnosis or something heavy   all i saw was two people that want to live. they’re not asking for much. they just want their fair shot at creating a life. and i think that’s all of us. i think we all just want a fair shot at creating a life. i don’t know. i’m sad. i’m sad. i’m sad at losing anyone. i’m sad at losing anything. i’m sad at the transience of certain relationships in my life. i’m sad at losing my mother, of course. i’m sad at the idea of losing my father, of not being there when my nephews are my age or older. i’m sad at the concept of not having children of my own. but the sadness is longing. it’s true longing, and there’s no shame in it. and i think we feel   i can feel myself right now putting the modern conditioning taboo on this very, very pure feeling i’m having and expressing with you. and i find that sad. what do you mean? like you’re trying to push   there’s a part of me that’s like, ok, now, come on now, dude. pull yourself together. i wish you wouldn’t until you’re ready. well, i appreciate that. but i think that is the killer. and that impulse that is not mine, that is inherited, that is conditioned from our culture to not feel to calcify the heart, to not reveal the heart, to not trust another person with our hearts, is what gets us into trouble. and i think it’s so easy now to feel hopeless in this current state of the world. being alive right now, it can feel quite hopeless. and we can feel quite numb, we can feel quite disconnected and isolated. but   i don’t know. i feel like the feeling, the longing, lives in all of us, the longing to connect, the longing to love, the longing to risk. yeah. i really appreciate you being so open with us. i mean, it brings a new depth, i think, to this piece. maybe there’s also a cracking open happening with this essay, similar to what you mentioned reading the script for the first time   for sure.   of “we live in a time,” and i’m grateful to be able to witness it or be in the same room as it. hold space. you’re holding a lovely space for it. thank you. well, can i meta with you for a second? get into it. no one has ever stopped in this way, when we’ve done these essay reads, and i find it very   it’s very interesting for me to experience because i’m listening to you read this and inhabit the voice and the experience of the author. and then you break out in this way that feels at once very from what i know of you but also very much still in this world as well. and it’s very interesting. i feel like you’re bridging many different worlds. i also feel like you’re kind of inhabiting the role of tobias again and speaking from that perspective that i saw in the film. so i feel like you’re world jumping a bit and it’s very interesting. it’s really neat, and that’s the wrong word. this is neat. totally neat. but i want this to be a more normal type of interaction for people. wonderful. whenever you’re ready. yeah, i’m ready. you stopped at   yeah, i remember. ok, wonderful. thank you. [sigh] “my parents no longer drive at night and have fewer and fewer hobbies. this summer, my mother made a box of cookies just for my son, and i was happy to see them talking quietly in the kitchen. i’m constantly aware of lost opportunities. i used to think such lost opportunities were beautiful towns flashing by my train windows, but now i imagine they are lanterns from the past, casting light on what’s ahead. my life is constrained in hundreds of ways and will be for years as my son grows up and my wife and i grow older. i don’t know when i will return to paris, if ever. i don’t know when or if i will finish my book. i do know i love eating breakfast with my son. my wife wants us to open only one box of cereal at a time to keep the flakes from going stale, but my son and i get up first, so we eat what we want. we like the change. he gives me a thumbs up whenever i open a new box. in our family, we talk about our days and recount our best part and worst part at dinner time. last week, i was reading a bedtime story with my son and was distracted by the laptop and work waiting on my desk. but i turned to him, and i said, we forgot best part, worst part. what was the best part of your day? he pushed his chin into my shoulder and said, ‘this is, daddy. this is.’ i felt a complete fool. i had to close my eyes for a moment, and then we agreed that his worst part was when he had cried about eating chickpeas. when i was a boy, i hated beets. i hope i can protect my son from beets until he’s old enough to hold in the tears. they’re not worth it. when the battery in my watch died, i still wore it. there was something about the watch that said, it doesn’t matter what time it is. think in months, years. someone loves you. where are you going? there are some things you will never do. it doesn’t matter. there is no rush. be the best prisoner you can be. big breath. [groans]: there’s a poem that it makes me think of. please. can i? yeah, of course. it’s   are you on the wi fi? no, i think i have it, actually. i have a photo of it at handy because i was thinking about it. it’s called “the man watching,” and it’s by rilke. i’m happy to read it. do you want to read it? do i want to read it? no, i’m happy to read it. i’m happy to read it. because it’s a little bit of a tricky one because the structure is a little weird, but i’ll read it. ok. i think you should certainly read it, not me. ok, so this is “the man watching” by rainer maria rilke, translated by robert bly, one of my favorite translators of rilke’s poetry and a great poet unto himself. ok. i can tell by the way the trees beat after so many dull days on my worried window panes that a storm is coming and i hear the far off field say things that i can’t bear without a friend i can’t love without a sister the storm, the shifter of shapes, drives on across the woods and across time and the world looks as if it had no age the landscape, like a line in the psalm book, is seriousness and weight and eternity what we choose to fight is so tiny what fights with us is so great if only we would let ourselves be dominated as things do by some immense storm we would become strong too, and not need names when we win, it’s with small things and the triumph itself makes us small what is extraordinary and eternal does not want to be bent by us i mean, the angel who appeared to the wrestlers of the old testament when the wrestlers’ sinews grew long like metal strings he, the angel, felt them under his fingers like chords of deep music whoever was beaten by this angel who often simply declined the fight they went away proud and strengthened and great from that harsh hand that kneaded him as if to change his shape winning does not tempt that man. this is how he grows   by being defeated, decisively by constantly greater beings wow. why did that   we get two readings for the price of one, a. hey, i’m not getting paid shit for this, actually. yeah, that’s journalism. can you tell me   why? and i want to dive   yeah. it’s a poem about humility in the face of the greater opponents, the things that don’t want to be bent by us. it’s about the prison. yeah. i want to ask you about the prison. that last line is also, of course, echoed in the beginning of the piece. and i want to really close read that final sentence, “be the best prisoner you can be.” what is the prison? this body. onism. onism. this body, the gravity, the time of my birth to the time of my death. my white skin, my brown hair, my brown eyes, the shoe size that i have. i’m never going to know what it’s like to have smaller feet. it’s awesome. i knew it. fuck. it rocks, yeah. but the prison, and i think the best prisoner is the best version of this, the best andrew. i like the idea that at the end of our lives, if there is some celestial being that we meet, that i like the idea them asking, hey, were you andrew? did you do it? did you live into all of what you were meant to live into, or as much as you could? i don’t know. and the prison being the fated thing, the thing that we have no control over. and it’s just, how do we surrender to our fate so that we can live into our destiny? did you just come up with that right now? i wish i could’ve. i wish. i could lie and say yes. no, there’s a really wonderful mythologist thinker called michael mead, who i really love. and he’s full of wisdom and he’s someone that i look to a lot and i read around a lot and listen to his talks. he was a collaborator of robert bly, who translated that poem. yeah. [music playing] we’re going to take a quick break. we’ll be right back. can i ask you a bit more about the prison, and then i promise we’ll move on? no, it’s good. do you think we’re alone in there? oh, man. isn’t that interesting? because the thing that comes to mind as you ask that is, i think the loneliness we feel here and the longing that we feel here is a kind of unconscious remembrance of a fact. and that fact is that we are all actually one thing. like, i do   that does sound like i could be a burning man, and i’m aware of that. but i do think we are   i’m going to say something that illustrates this, hopefully, in a way that   i don’t know. when my mom passed, something made sense to me. and it could just be my imagination. it could be magical thinking, and i’m actually ok with that. i got the sense that she was back running with her angel tribe. for real, though. for real. because in life, she was an angel on this earth. she was a helper. she was a carer. she was a giver. she was a healer in the small, little subtle ways that are mostly invisible. and she would get frustrated with herself because she couldn’t be in a thousand places at once. she was frustrated with the kind of prison of her own carnal form. onism again. and then the sense i got when she passed, one of the things that i saw in a dream or i felt as a waking dream, i’m not sure, was, oh, she’s back with her tribe and she can be in the thousand places at once now because she’s pure spirit. she’s back with the everything. she’s back with the source of the mystery of where we all will go back to and where we all originated from. i don’t know. that’s just a theory. i can’t know. it could be absolute bullshit. i like that. i like it too. i really like that. it’s a lovely image. you’re bringing up your mom, which i’m grateful for. i wanted to ask you about your experience filming “we live in time,” given your mom’s passing from cancer a few years ago. did playing tobias teach you anything new or surprising about your grief and how to go on living after loss? damn. gosh. i think what the film does beautifully is it honors grief. it honors the experience of grief. it honors what the essay does that we read today as well. it acknowledges that we don’t get to be in charge of what we lose, how we lose it, and when. and i think i fight loss all the time. i try to resist loss all the time, foolishly and pigheadedly and egotistically. and i think in terms of the transient nature of letting go of everything, i had a friend that passed recently. sorry. thank you. and he was like a zen master, in some regard. not intentionally, he just was. and by the end of his life, he was allowing himself the sorrow and the joy of transitioning, as he said it, going over to the other side. and there was something so exquisite about his courage, his courage not only to be like, this is the way it has to be, but he’s also his courage to be like, i want to stay. i wish i could stay. i have more i want to do. i’m so sad i’m not going to be able to be your friend anymore. in fact, i felt like you were another son to me. oh, my gosh. i wish i could, but bye bye, and i love you. if i can follow in my friend’s footsteps in any way, that would be   and in mike nichols, as i said, giving himself away, holding it lightly, not wanting to be the richest man in the graveyard or caring about legacy, particularly, but just kind of, just   being able to be present while also giving grace to the future and embracing both in equal turn. i feel like to bring it back just once more to the movie, tobias and almut do a really admirable job of doing that, of balancing the present and also looking forward. how do you calibrate that balance in your own relationships? sorry, heavy hitters. we could go with easier questions. no, listen, i love this. i love it. this is what i want my life to be. it’s a tough question, actually. yeah. well, time, right? right, right. what is time? we live in it. what is it, though? the future has already happened. there’s no   it’s all connected. what i love, again, and i think what was said in this essay about the missed opportunities becoming lanterns to guide the way into a future, that was so beautiful. and i really got it in a deeper way in the second reading. i don’t know. it’s so hard to listen and trust one’s longing. i think we all have so much longing in us to live. we have an image of what our life wants to look like, feel like, tastes, sense. and i think it’s so hard to have the courage to follow those longings, to own those longings, to want what we want. because then what if we don’t fucking get it? and then the heartbreak comes. and the deepest longings are the ones that we are really afraid to mention, the ones that really could cost us. only as much as you feel comfortable sharing, i think one of my final questions to you, you’re speaking about the things you long for, and i wonder, whatever you feel comfortable sharing, what are some things   my own personal longings? yeah, in your own life. they’re pretty basic. they’re pretty garden variety. i find that surprising. no, but i long for love, to connect with life. to connect. this is very broad in general, but it’s like i want to live courageously. i want to live true to myself and whatever that means. i want to make things that are beautiful and that connect with people, that give people some solace, some comfort, that help them connect with the world and themselves. i want great friendships. i want great time with my family. i want healthy boundaried relationships with friends and partners and family members. right now, i’m working on codependency in my life. i want to know. for real. can you go into that? yeah, for sure. basically, i want to know where you end and i begin. i don’t want to feel like i have to take on and become and hold all of   me? all of me? all of you, particularly, specifically. are you single? that is none of your business. no, it’s fine. it’s a fine thing to ask. and yeah, weirdly, for whatever reason, i don’t give that part of my life anywhere publicly. i just don’t. yeah, i respect it. i had to ask. we’re a love show. no, no, it’s totally fine, and i understand the question. and i think it’s such a sacred thing. and i think becoming a public person is very challenging, i think, for anybody, let alone a sensitive little fuck like me. and i just know that you and i might have a really lovely conversation coming off of that question, but certain people listening from certain other publications will take that and turn it into something that is exploitative. i understand. and i’m just not interested in that. ok. i could talk forever, but i want to respect your time. you have a hard out, so i’m going to close us. ok. i’m trying to debate   you can tell me which one you’d rather do, because i was planning on ending this by playing the game that chris huntington, the author of the essay, plays with his kid, which is the best part, worst part of our days. nice. or   what?   we could do the thing that you were talking about with the jesuit prayers. and you could say four things that made you feel very   well, you don’t have to say four. you could say a couple of things that made you feel present today. you know what? i think they’re both the same thing. i think best part, worst part and the jesuit prayer are kind of very similar things. so let’s do best part, worst part. we’re both doing it? yeah. ok. it’s the least you could do. let’s start with worst. ok. go ahead. i have to think. me too. i got it. wow, ok. my worst part is that we had lunch an hour and a half after lunchtime today, and i got very cranky for an hour and a half because just the schedule, the nature of the schedule while we’re promoting this film. i get cranky, i get hangry, if i don’t. you’re nodding so much at everything. appreciate you. i mean, i get it. my worst part was this morning, there was a dead cockroach in my kitchen when i woke up. and i was all alone. [laughs]: why is that funny? because it was really scary. i get it. it was totally   have you had a cockroach? i’m laughing because it’s like an acknowledgment. have you seen the new york ones? i know about new york cockroaches, girl. have you encountered them, boy? of course i have, human person. ok, that’s true. ok, here’s what i did. i raided it a lot, even though it was already dead, and then i flushed it down the toilet. good for you. thank you. you’re brave. and you can do it on your own. thank you. but it would have been nicer if you had some kind of assistance. 100 percent. i understand. that was my worst part. now we do best part. was it the first thing in the morning as well? it was like, i was walking to get my coffee. yeah, right there in the middle. yeah, i’m sure you might have welled up a little bit in frustration. i feel like my worst is worse than yours. it absolutely is. my worst was not bad at all. i think you’re being coy. all right, let’s do   best part? yeah. i’m going to go first because we should end with you. we should end with you. yeah, sure. my best part was this conversation. very nice. thank you. thanks. i was going to say, my best part was   not the conversation. it was the end of this conversation. no, i would say my best part was absolutely generally this conversation, but also particularly in a moment of cracked open vulnerability, to feel safe, that i could allow that to be there and to feel that not only did i have my own, i could hold my own myself in that vulnerability, but i felt safe to do it in this room with you people. felt like quite a privilege, and i’m just very, very grateful for that. wow. well, we’re grateful for you, andrew garfield. thank you so much for this conversation. thank you. [music playing] i feel like that was kind of a dream state we were in for a while. i know. i feel like i have to breathe. yeah, it was a little odd. i want to shake it out. i know, i know. it was a little kind of portal. if you want to read the modern love essay featured in today’s episode, you can find the link in our show notes. and before we go, this year is the 20th anniversary of the modern love column. and if you’re a reader or a listener, we want to know how the column has affected you. has it made a difference in how you think about love in your own life? if it has, please leave us a message on our modern love hotline at 212 589 8962. that’s 212 589 8962. include your name and a number where we can call you back and you just might hear yourself on a future episode of the show. “modern love” is produced by reva goldberg, davis land, emily lange, and amy perl. it’s edited by lin levy and our executive producer, jen poyant. production management by kristina jose. special thanks to paula szuchman. the “modern love” theme music is by dan powell. original music by aman sahota, diane wong, and dan powell. this episode was mixed by daniel ramirez. studio support from maddy masiello and nick pittman. digital production by mahima chablani and nell gallogly. the modern love column is edited by daniel jones. miya lee is the editor of modern love projects. if you want to submit an essay or a tiny love story to “the new york times,” we’ve got instructions to do that in our show notes. i’m anna martin. thanks for listening. hosted by anna martin produced by reva goldbergemily langdavis landchristina djossa and amy pearl edited by jen poyant and lynn levy engineered by daniel ramirez original music by dan powell in the new movie “we live in time,” the actor andrew garfield plays a newly divorced man named tobias who falls in love with a chef named almut, played by florence pugh. their story feels epic and expansive, but still intimate. it focuses on the small, everyday moments that make up a love story: washing dishes together after a dinner party, sharing biscuits, smelling fruit at a farmers’ market. these are the moments that sustain them through almut’s excruciatingly difficult medical crisis. in this episode, garfield reads the modern love essay “learning to measure time in love and loss,” by chris huntington. his reading was unlike any other in the history of this show. mr. garfield was so moved by mr. huntington’s essay that he spoke in a surprisingly raw way with the host anna martin about the need for art to crack us all open, including himself.
supported by word of the day this word has appeared in 41 articles on nytimes.com in the past year. can you use it in a sentence? by the learning network 1. boding ill 2. presaging ill fortune 3. contrary to one’s interests or welfare the word inauspicious has appeared in 41 articles on nytimes.com in the past year, including on dec. 21 in “he’s the only 3 michelin starred chef in seoul. don’t cross him” by daisuke wakabayashi: in 2016, mr. anh opened his first restaurant in san francisco called mosu, a play on the korean pronunciation of cosmos, a flower that grew in a field near his childhood home in south korea. mosu offered a tasting menu for $195, a record high for a new restaurant in the city. in a column for the san francisco chronicle, the restaurant critic michael bauer said he was shocked at the “audacity of the pricing out of the gate” considering that “chef owner sung anh doesn’t have much name recognition.” despite the inauspicious start, mosu was awarded one michelin star, an impressive achievement for a new restaurant, and the reservation book at the 18 seat hideaway was consistently full. but amy in, mr. anh’s wife, said this was a challenging time. can you correctly use the word inauspicious in a sentence? based on the definition and example provided, write a sentence using today’s word of the day and share it as a comment on this article. it is most important that your sentence makes sense and demonstrates that you understand the word’s definition, but we also encourage you to be creative and have fun. if you want a better idea of how inauspicious can be used in a sentence, read these usage examples on vocabulary.com. you can also visit this guide to learn how to use ipa symbols to show how different words are pronounced. if you enjoy this daily challenge, try our vocabulary quizzes. students ages 13 and older in the united states and the united kingdom, and 16 and older elsewhere, can comment. all comments are moderated by the learning network staff. the word of the day is provided by vocabulary.com.