By: Tom Blakely, Boston-based attorney and federal judicial law clerk

For decades, antitrust law has effectively been walled off from ordinary Americans. Antitrust trials have traditionally been bench trials, played out in federal courthouses before lone judges who while experienced, technically sophisticated, and capable, have often been temperamentally disposed to giving monopolists the benefit of the doubt. Given the elite pedigrees and Wall Street law firm backgrounds that federal judges disproportionately are selected from—smoke and mirrors tricks around market definition, Chicago School orthodoxy about consumer welfare, and the notion that big companies got big just by being good at things, often found traction with the federal bench.

This dynamic was most recently on display when Judge Amit Mehta in the District of Columbia, having found that Google was a monopolist in online search, declined to actually impose any meaningful remedies, citing the need for “humility” when facing down tech giants. Understandably, the fealty of judges towards corporate power has long vexed antitrust enforcers. But this fealty is a sentiment not shared by ordinary Americans.

As a result, the era of bench trials may be ending, as government and private plaintiffs seem increasingly willing to take their chances with jury trials, where they are finding repeat success. Juries, drawn from a public that has spent the last decade plus watching corporate giants crush them with high prices, brazenly anticompetitive conduct, exploitative business models, and malicious, extractive platforms designed to squeeze and manipulate them—are showing little sympathy for the defendants. A jury in the Southern District of New York recently found Ticketmaster to be an illegal monopolist. This comes on the heels of juries ringing up Meta and Google for the intentionally addictive, mental health-corroding designs of these platforms and their algorithms. The verdicts keep coming back guilty, and there is no good playbook for corporate America on what to do about it.

While a judge can be lead astray around the margins and defense counsel can calibrate arguments around baroque technicalities, bad-faith market definitions, and jazz hands cybersecurity defenses used as a talisman to ward off accountability—juries are less inclined to be thrown off the scent by the defense in this way. In an era where public satisfaction with big business is at an all-time low, with Americans from both political parties expressing deep distrust of these companies—big business—already losing in the court of public opinion, can be expected to continue to lose in front of juries in courts of law.

These companies are no longer seen as scrappy innovators. A juror who has watched their insurance premiums rise astronomically while they fight with Kafkaesque bureaucracies designed to deny their claims, seen grocery prices and corporate profits climb while jobs disappear, felt the squeeze of dynamic pricing and gig app wages, and witnessed consumer choice evaporate as prices soar, is unlikely to embrace courtroom antics intended to explain away what they can see with their own eyes, in the same way a judge might.

The legal establishment has long treated antitrust as a dusty, genteel and technical discipline, something closer to economics than law. That framing served defendants well. Juries don’t speak Chicago School. They speak common sense—and common sense, applied to the conduct of most major monopolists, tends to produce liability findings.

The success of recent jury trials can be expected to inspire enforcers to opt for more jury trials going forward. There is no simple solution for the defense bar to this democratization of antitrust law. Sure, arbitration clauses and other artifices buried deep inside corporate boilerplate have long been spoilers for many prospective cases, and judges still have the ability to dismiss cases before they reach a jury. Most significantly, judges are still responsible for overseeing antitrust remedies. Indeed, judicial remedies have been a particularly mixed bag, with Google Search standing out as a recent notable case where despite losing, the “conviction” of the monopolist was effectively nullified by the judge through slap-on-the-wrist remedies that did not seek to meaningfully remediate proven anticompetitive market structures or attack the core excesses of the monopolist.

However, judges are a consensus-driven bunch. If the public, as constituted through juries, continues to ring up monopolists at the current pace, some judges inclined towards more appropriate remedies will order them. Other judges will take note of changing tides and tough new precedent and begin to follow. As a result, as antitrust enforcers—who are increasingly active at the state level—bring more actions, the trend of juries uniformly finding against corporate defendants can be expected to make it tougher for judges not to fashion strong remedies as case law reflecting broken and anticompetitive markets piles up across the country, and they see some of their peers cracking down.

In sum, when cases seeking to hold corporate power accountable do reach juries these days, the defense bar is increasingly striking out at each and every at bat. Americans’ views of corporate America have simply become so negative across all divides, that assuming recalcitrant market incumbents refuse to meaningfully change their anticompetitive proclivities—short of finding ways to lobby or weasel their way out of reaching trials, it is hard to see how the defense bar will turn their losing streak around when it has to face juries.

Tom  Blakely is a Boston-based attorney and federal judicial law clerk who served in  the United States Department of Justice, the Massachusetts Office of the Senate  Counsel, and practiced at an international law firm. He frequently writes about  numerous legal topics. Tom serves on the board of Boston College Law School  where he hosted the Just Law Podcast.