Antitrust law is back in the news and, perhaps for the first time since 1912, in the presidential campaign. The Federal Trade Commission and various committees of Congress have held hearings on fundamental antitrust questions. Scholars from multiple disciplines have published books, articles, and reports addressing whether antitrust law needs substantial revision. Perhaps the most compelling evidence of the winds of change is that leading academic economists now appear to take seriously proposals that acquisitions by tech platforms that create “risks of anticompetitive effects” should be prohibited and that large tech platforms like Amazon should be “broken apart from any participants on the platform.” Prominent conservative commentator Peggy Noonan has said of Facebook: “Break them up. Break them in two, in three; regulate them.”
A confluence of four factors seems to have provoked this unrest. The first is a rising populism, on both the left and the right, that decries free markets, globalism, and increasing inequality within the developed countries. The second is the rise of big tech, which provokes unease because its power seems to expand without limit through scale and scope economies and network effects; because it is based on new and largely invisible technology; because it aggregates data and threatens privacy; because it implicates broader themes of powerful communications media, which have repeatedly been subject to antitrust scrutiny in the past; and because some fear that big tech undermines political stability and familiar communities and associations. The third is a growing body of economic studies that suggest that market concentration and market power have increased in recent years. The fourth is the increasing concern of libertarians about private, as well as government, power and evidence of widespread increases in industry concentration.
Antitrust law is the tool that comes first to mind as a means of addressing concerns about private economic power. On the surface, there appears to be a conversation about the future of antitrust law between three groups. The first group might be called the conservatives. They argue that antitrust law is basically fine as it is and that market concentration is transitory and, when enduring or not a reflection of superior efficiency, is largely “the result of heavy regulation rather than a natural development from the nature of business.” To the extent they advocate revisions to antitrust doctrine, they generally support modifying doctrinal provisions, such as market-share presumptions in horizontal merger cases, that make enforcement easier, and extending doctrinal provisions that restrict enforcement, such as the price-cost test for predatory pricing, to more complex forms of conduct, such as loyalty discounts. The second group might be called mainstream progressives. They argue that antitrust enforcement has been too lax and that antitrust law should be adjusted but within the prevailing consumer welfare paradigm. The third group might be called the populist critics. They include the self-described “New Brandeis” proponents and some who have more far-reaching and eccentric proposals.
