Making sense of the sweeping antitrust reform bills in Congress

Those tracking tech policy and regulation would be forgiven for asking: is there something in the water in the nation’s Capitol? In the first half of 2021, U.S. lawmakers have proposed a staggering nine bills–six in the House of Representatives and three in the Senate–to reform federal antitrust laws and supplement them with regulatory backstops.

This comes on top of efforts to reform state laws (for example, New York is considering a major revamp of its antitrust law1https://www.natlawreview.com/article/new-york-antitrust-law-reform-bill-fails-to-clear-assembly), the impact of a change in the composition of the Federal Trade Commission under a new Presidential administration (including the appointment of a progressive antitrust reformer as its Chair)2https://www.nytimes.com/2021/06/15/technology/lina-khan-ftc.html, and a bevy of massive antitrust lawsuits filed by federal and state officials against the largest companies in the world that go to the core of vertically integrated business models in consumer-facing tech markets (more on that here and here).

How to make sense of the laws being proposed in Congress and fit them into the broader U.S. and worldwide context of antitrust enforcement and policy debates surrounding market concentration?

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The government antitrust lawsuits against Google and Facebook: the endgame

In the second of a series of articles on the historic antitrust lawsuits against Google and Facebook, I look at what the endgame may bring for the government plaintiffs and highlight the challenges they face along the way. I also preview the broader legal reforms and regulatory changes that may follow if competition laws reveal themselves unable to reach the conduct at issue in these cases.

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The government antitrust lawsuits against Google and Facebook: what it all means for tech businesses

2020 ended with a whirlwind of US antitrust activity against the tech industry. In a three-month span, state and federal authorities shook off nearly two decades of inaction by filing five separate lawsuits alleging wide-scale violations of the antitrust laws by Google and Facebook. The historic cases go to the heart of what online platforms can and cannot do in dealings with their business users, competitors, and partners. Antitrust now stands front and center in the US debate over how to regulate Big Tech, and the entire industry should take heed.

This first in a series of articles about the landmark antitrust lawsuits against Google and Facebook looks at how the mere filing of these cases signals a reshaping of the legal landscape and what it means for tech businesses, big and small.

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Risks and opportunities in the coming era of online platform regulation

The unregulated era for the digital economy is coming to an end. Governments around the world are done studying digital markets and have moved on to crafting new antitrust laws and regulations that will reshape the relationship that exists between large online platforms and their business users, trading partners, and competitors. The big online platforms will face new legal risks, while the tech companies operating in their spheres of influence will see new legal protections and business opportunities. Everyone will need to keep up with a fast-changing legal landscape.

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Reining in Consumer Big Tech: Antitrust and Beyond

The U.S. House of Representatives recently released a long-anticipated report on the state of antitrust in consumer tech. It found that key gateways and highways online are heavily consolidated around a few Consumer Big Tech giants and that reforms of antitrust laws are needed to inject more competition into the internet.

But while the report’s recommendations are ambitious, they are not enough to take on all of the harmful effects to our culture, economy, and politics caused by consolidated consumer tech markets. One reason is that they do not tackle the law’s foundational shortcomings, which overly complicate the antitrust analysis and must be reformed. The other reason goes to the core of what modern competition laws are and what they are not, which requires looking beyond antitrust to other rules and regulations to rein in the broader societal consequences of bigness in the digital economy.

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Antitrust After American Express: Down a Competitive Effects Rabbit Hole

In 2018, the Supreme Court affirmed a decision throwing out a major antitrust case that the Department of Justice and seventeen States Attorneys General had brought against American Express. The case concerned contractual restrictions the company imposes on merchants accepting its credit cards that prevent them from steering shoppers to other credit cards. The Supreme Court concluded that the government had failed to prove that these restrictions eliminated competition on both sides of a “two-sided” market because its case focused on harm imposed on merchants without giving enough attention to what it meant for cardholders.

American Express accelerated a half-century trend in modern antitrust orthodoxy that has disarmed enforcers by imposing impossibly high burdens on them to analyze and predict the competitive conditions of complex markets in order to make out a case. It also ensured that conditions supporting lax antitrust enforcement in the analog era would persist in the digital one. The consequences have already played out in two major tech cases that the government saw tossed out by courts following the precedent of American Express: the review of the Sabre/Farelogix merger, and the monopolization case against Qualcomm.

The trio of cases exemplifies the failings of basing the antitrust laws on predictions of “actual competitive effects” using economic theories, and highlights the need for a different approach that can take on the challenges of regulating a complex modern economy.

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How tech forces a reckoning with prediction-based antitrust enforcement

Tech is testing the limits of a half-century experiment in antitrust in which predictions made by experts have guided enforcement of the law.

Over that time, it has become increasingly common for the lawfulness of a given merger or monopolist’s conduct to be decided by predicting its actual effects on competition. On first blush, it seems a sensible approach. Ostensibly, it is a rational replacement of what came before it, which was a set of hard-and-fast rules that trained antitrust on the protection of market conditions believed conducive to competitive outcomes, with less regard for how competition was actually impacted in an individual case.

But lawyers and economists may have jumped the gun in thinking themselves up to the task. A half decade of experience with the predictive approach to antitrust, bolstered by research in uncertainty and decision-making in other fields, suggests that little more than wishful thinking may support the premise that predictions about complex markets can be accurate enough to guide competition policy. And to make matters worse, the prediction-making apparatus has been focused exclusively on an overly restrictive subset of competition concerns that only serve to help consumers to buy more things for less money. The result has been the consolidation of large swaths of the economy.

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