Paramount’s Antitrust All-Star Team: Big Names vs. Vague Laws

Leave it to Hollywood to turn a $110 billion merger between Paramount and Warner Bros. Discovery into the legal event of the decade. While the rest of America was busy with actual news, Paramount just bulked up its defense team by hiring antitrust heavyweight Jeffrey Kessler, the same guy who helped smash the NCAA’s amateurism rules and took down Live Nation’s alleged monopoly in 2025. He joins former Trump antitrust chief Makan Delrahim and Obama-era veteran David Gelfand, plus heavy hitters from Latham & Watkins and Cravath. Their mission: beat back a consumer lawsuit trying to block the deal that would create one of the biggest media behemoths in history.

This is not some small-time consolidation. The combined entity would control a staggering share of streaming subscribers (roughly 210 million across Max and Paramount+), theatrical distribution, cable networks, and content libraries stretching from The Godfather to SpongeBob. It would reshape Hollywood, reduce the number of major studios, and give the new giant massive leverage in negotiations with theaters, streamers, and talent. Critics scream “monopoly” while Kessler calls the lawsuit “baseless” and “untethered from the facts.” He’s probably right, but that’s not the point.

The real story is that modern antitrust law is a judicial crapshoot and a legislative minefield. Congress never laid out clear rules. The Sherman Act of 1890 bans “every contract, combination… or conspiracy in restraint of trade” and monopolization. That’s it. Vague, open-ended, and deliberately broad. Over the past century, judges, rather than elected lawmakers, have filled in the blanks with made-up tests, shifting standards, and policy preferences dressed up as law.

As conservative textualists and originalists have long pointed out, this is exactly what happens when Congress passes statutes so indeterminate they invite judicial legislation. The Supreme Court itself has admitted as much. In Standard Oil Co. v. United States (1911), the Court invented the “rule of reason” to decide which restraints were “unreasonable.” In United States v. Microsoft Corp. (2001), judges wrestled with whether bundling Internet Explorer was anticompetitive. More recently, the consumer-welfare standard, championed by Robert Bork and embraced for decades, has been under assault by progressives who want to punish bigness itself, regardless of consumer harm.

The result? Antitrust enforcement has become a political Rorschach test. One administration’s “vigorous competition” is the next’s “corporate predation.” Under Joe Biden, Lina Khan’s FTC turned the agency into an activist machine targeting successful companies for the crime of being successful. Now the Paramount-Warner deal, which regulators appear ready to approve, faces a private lawsuit from streaming subscribers claiming it will raise prices and reduce choice. Whether that claim survives will depend less on clear statutory text and more on whichever judge draws the case and which economic theory is in vogue that week.

Paramount doesn’t expect serious pushback from the DOJ or state AGs, but the mere existence of the suit shows how arbitrary the game has become. A handful of plaintiffs can tie up a $110 billion deal in court while Hollywood’s power brokers wait to see if a federal judge decides today’s version of “restraint of trade” applies.

This is what happens when Congress abdicates its responsibility and hands judges a blank check. The Sherman Act’s vagueness has been criticized for over a century as bordering on unconstitutional. Scholars and originalists have documented how courts turned it into a common-law regime of their own making, complete with ever-shifting standards that change with the political winds.

Meanwhile, the new media giant moves forward, reshaping an industry already dominated by a handful of players. Whether that’s good or bad for consumers is a legitimate policy debate. But pretending it’s all governed by some pristine, democratically enacted set of rules is pure fiction. Antitrust law, as currently practiced, is largely judge-made policy, and that makes every big merger a high-stakes gamble.