CELS/USC Virtual Antitrust Workshop: 'Could Mandated Neutrality Save Antitrust?'

Title: 'Could Mandated Neutrality Save Antitrust?' 

Speaker: Professor Barak Orbach, University of Arizona College of Law

Abstract: Mandated neutrality standards (MNS)—namely, equal treatment duties—require companies to deal with all interested parties on fair and equal terms. In recent years, lawmakers, antitrust enforcers, and commentators have promoted the idea that MNS could tame and discipline tech giants such as Amazon, Apple, Facebook, and Google. Under this approach, fairness duties of tech giants will fix capitalism and allow wealth and opportunities to trickle down smoothly and effectively. This Article examines the nature and practicality of the MNS vision. In the early years of the digital economy, scholars observed that digital markets tend to tip toward monopolies and oligopolies. This observation has inspired voluminous literature about “platforms” and “two-sided markets.” However, the tendency of successful platforms to expand and establish themselves as digital ecosystems has received limited attention. Digital ecosystems are enterprises that use data infrastructures to integrate and intertwine several digital platforms and other lines of business so that each integrated arm strengthens and promotes the others and, together, the arms entrench the position of the ecosystem in the relevant economic sectors. This architecture of integration—intertwined integration of multiple lines of business—was not feasible in the past. Amazon, Apple, Facebook, and Google are today’s most prominent global ecosystems. Critics depict digital ecosystems as monster octopuses whose intertwined tentacles reach into every industry, strangle freedom, spread misery, and grow endlessly. Digital ecosystems, critics argue, systemically tilt the playing field in their favor to entrench their dominance. As used in antitrust contexts, the playing field theory implies that excessive concentration in the economy explains why wealth and opportunities stopped trickling down in recent decades. MNS are offered as measures to mitigate the problem. Inquiries into the intellectual foundations of MNS tend to frustrate serious antitrust thinkers. First and foremost, the antitrust’s playing field theory is strange. In the marketplace, firms do not treat rivals as they treat their own units and do not treat all potential trading partners alike. Rather, firms integrate economic activities and enter contractual relations to gain otherwise unavailable advantages. The MNS vision offers fairness as an alternative to the organization of economic activities within firms and through contractual relations. Second, assertions that fairness is an administrable legal standard are an old line of criticism of market institutions. There are no examples of successful implementations of this idea. MNS, this talk argues, are thin populist ideas whose promotion comes at the expense of practical and badly needed public policies.  

To register your interest for this event please contact Dr Oke Odudu (oo201@cam.ac.uk)