The ideal of self-correcting competitive markets has delayed proper acknowledgement of consumer harm and monopolization in technology platform markets. Two attitudes have long dominated the policy landscape: a historical reluctance to over-enforce antitrust and a tendency to frame the regulation of digital platforms in categorical terms. Should policy makers “regulate” or should they “break up” Big Tech? Should they decentralize digital power, or should they transform companies like Google into accountable bottlenecks? These ways of articulating the problem reflect an impoverished understanding of the scope of antitrust law and the nature of regulation in the digital economy more broadly. Policymakers often rely on narrow justifications for legal intervention such as efficiency, natural monopoly, externalities, and transaction costs. They conceive of antitrust, which includes remedies such as break-ups, as a body of law that acts marginally to preserve pre-legal, efficient, and decentralized market processes. They view utilities and other regulatory schemes as rigid modes of intervention in production that interfere with free competition and limit consumer choice and innovation.
These conceptions obscure a more nuanced picture. Decentralizing and centralizing efforts, which structure digital markets, overlap across legal domains. To make sense of this overlap, the Article defends a conceptual move away from disciplinary categories and discontinuous remedial solutions and toward an experimentalist approach to law in digital ecosystems. In practice, antitrust and regulatory law are converging in revealing ways. Antitrust cases are increasingly sensitive to the gatekeeping power of platform intermediaries and procompetitive digital market regulation is on the rise. As such, the justifications for an either/or approach to antitrust and regulation, e.g., the preference for underenforcement and ex post intervention, are untenable. Antitrust is but one branch of law that structures and enables competition. Regulatory frameworks such as the DMA in Europe do not undermine but instead can promote competition, innovation, and consumer choice.
Relying on the case of Google and its regulation between 1998 and 2022, and looking at regulatory schemes such as the EU DMA, AICOA and the AMERICA Act, the Article situates antitrust and public utility efforts as part of a spectrum of regulatory approaches to digital markets. It configures the space of regulatory possibility across ex ante and ex post, centralizing and decentralizing strategies. The question is not whether to break up or regulate Big Tech, it is what forms of competition, innovation, and choice a digital society needs as it transforms.
* Assistant Professor of Law and Computer Science at Northeastern University. I have more people to thank for feedback on this article than could reasonably be mentioned here. I am particularly grateful for ideas and suggestions from Jack Balkin, Yochai Benkler, Friso Bostoen, William Boyd, Raul Carillo, Anupam Chander, Jennifer Cobbe, Julie Cohen, Madison Condon, Dan Danielsen, Brenda Dvoskin, Rashmi Dyal-Chand, Richard Fallon, Michal Gal, James Grimmelmann, Nikolas Guggenberger, Woodrow Hartzog, Scott Hemphill, Luke Herrine, Herbert Hovenkamp, Margot Kaminski, Amy Kapczynski, Filippo Lancieri, Gianclaudio Malgieri, Deni Mantzari, Helen Nissenbaum, Saule Omarova, Jeremy Paul, Sanjukta Paul, Sabeel Rahman, Aziz Rana, Morgan Ricks, Howard Shelanski, Jessica Silbey, Scott Skinner-Thompson, Ganesh Sitaraman, Daniel Sokol, Jed Stiglitz, Katherine Strandburg, Alexandre de Streel, Peter Swire, Rory Van Loo, Salome Viljoen, Dwayne Winseck, Christopher Yoo, the ILI Fellows and Affiliates and the JSD-ILI students at NYU, the DLI Fellows at Cornell Tech, the Climenko Fellows and the Harvard SJD community, the Berkman Klein Center Fellows, the Yale ISP Fellows as well as many other colleagues at law schools and conferences in the U.S., Europe and Canada. I also thank Leigh Biddlecombe for editorial assistance in August 2022, and the editors of the University of Illinois Law Review for their editorial support and for their patience with my numerous edits. All errors are mine.
The full text of this Article is available to download as a PDF.