Randy Picker Writes on Antitrust in Inaugural Publication Covering Regulation of the Digital Economy

What Should We Do About The Big Tech Monopolies?

Sue them? Regulate them? Both? The rise of the big tech firms has created a moment of possible change in how those firms are regulated. You really do need a scorecard to keep track of the pending antitrust suits and investigations of Amazon, Apple, Facebook and Google. (Microsoft, so far, seems to be mainly below the radar). The same is true of pending bills in the U.S. Congress. It is easier in Europe, where both the Digital Services Act and Digital Markets Act are under consideration, though as soon as we turn to the member states possible responses grow quickly, where Germany has been an early mover. If we switch to Asia, South Korea has moved to regulate app stores. This is platform regulation organized around the gatekeeping positions of the big tech firms.

Antitrust and regulation are different approaches to possible controls over these firms. U.S. antitrust laws are organized around ideas of fault, market definition, and market power. Litigation in the U.S. is a slow path to change and the same is true in Europe. New laws offer the promise of a quick regime change, though the lessons of regulatory statutes like the Telecommunications Act of 1996 make clear that vague statutes can also lead to litigation timelines measured in decades over the language of new statutes.

In this essay, I pursue two paths. In the first, I revisit the beginnings of U.S. antitrust law to emphasize that that law has long had a policy of permitting firms to grow organically into dominant market positions. The Sherman Act created an anti-trust policy, not a broad anti-monopoly policy. And even as U.S. antitrust law moved in 1914 to supplement the Sherman Act with The Federal Trade Commission Act and The Clayton Act, leading voices of that era — soon-to-be-Justice Louis Brandeis and soon-to-be-President Woodrow Wilson — made clear that even though they opposed the trusts, they were not opposed to firms that achieved their market positions though legitimate competition and organic growth.

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