Antitrust and the Challenges of Competition in Digital Markets

These are unprecedented times for antitrust concerns about the market power and conduct of big technology companies, in particular Facebook, Google, Amazon, and Apple. The companies face an onslaught of regulatory and judicial scrutiny around the world. In the United States, the Department of Justice, Federal Trade Commission, and state attorneys general are all investigating possible anticompetitive practices and/or have filed major antitrust lawsuits. Congress is pursuing multiple investigations, and the House Judiciary Committee released an extensive report last October detailing harms resulting from the alleged dominance of "online platforms." At least six bills have been introduced in Congress to expand or clarify the application of antitrust laws to "Big Tech," and vocal advocates for antitrust scrutiny of Big Tech now occupy important positions in the DOJ, the FTC, and the White House. Elsewhere in the world, the European Commission is investigating and has filed charges, and China's State Administration for Market Regulation has increased its focus on these issues. At the heart of these issues is the impact major tech platforms have on competition, competitors, the economy, our democracy, and on billions of consumers/users. Core to the consideration and resolution of these issues is the question of what role antitrust and competition law should play in addressing those impacts and whether current antitrust theory and enforcement practices are adequate for that role in the US and around the world. This seminar will closely study the development of antitrust and competition law in the United States and Europe and its application to today's digital markets. After an overview of the fundamental laws and theories underlying antitrust law, we will briefly review the evolution of antitrust theory and enforcement over the last 40 years, from the Chicago School to current calls for a "neo-Brandeisian" reinvigoration of antitrust, and the significance of that evolution for how we answer today's most-pressing competition questions. We will consider the unique challenges faced by antitrust analysis in the technology sector through case studies of landmark enforcement actions brought against IBM, Microsoft, Intel, and others. The heart of the seminar will be a close examination and assessment of the antitrust allegations raised in the present wave of investigations and lawsuits. Our analysis will include how antitrust in these contexts should properly evaluate relevant markets involving complex platform businesses, how it should assess market power, whether various acts by large tech companies are anticompetitive/predatory or have countervailing procompetitive justifications, how we should determine the nature and scope of any resulting anticompetitive harm, and what remedies might be appropriate and effective in the event violations of antitrust law have occurred. We will conclude with an analysis of whether there are currently gaps in existing antitrust law and/or theory and what if any changes are needed to better serve the underlying purposes of antitrust (as well as what those purposes are and should be). We will evaluate a variety of pending and potential recommendations for transforming antitrust to more fully address some of the complex issues raised by online platforms and digital markets. Readings will include judicial opinions, litigation documents and evidence, congressional testimony and reports, and legal and economic scholarship. Guests with significant relevant expertise will join several of the classes. The seminar does not require an antitrust background, just an interest in gaining a deeper understanding of how antitrust and competition operate in the unique context of online digital markets. Grading will be based on a series of written reflections, class participation, and a final paper or equivalent written product. Enrollment is limited to 16 students, with consent of the instructors. Students interested in this seminar should submit a consent form with a resume and statement of interest and relevant background to be reviewed by Professors Malone and Rubin.