Can the Next Amazon or Facebook Be Controlled Before It Becomes Too Powerful?

Authors

Ido Baum
Davida Lachman Messer

Abstract

Antitrust laws in the United States are at the center of a heated debate. Some scholars argue that antitrust should focus on price and output competition in a single market, with consumer welfare maximi-zation as the criterion for intervention. An emerging opposition, often categorized as the “neo-Brandeisian school,” argues that the original calling of antitrust was to restrain the political influence of corporate “bigness.” The latter criticize consumer-welfare antitrust for failing to capture the influence of concentrated economy-wide power held by individuals and corporations through their holdings in several mar-kets—the most notable examples being multi-market digital platforms such as Amazon, Facebook, Google, and Apple. Shifts in the political arena may have given this moment an influential position in the shap-ing of current U.S. antitrust regulation. The COVID-19 pandemic is aggravating the problems faced by regulators as small businesses collapse, dominant conglomerates grow stronger, and social-distancing measures diminish the ability of the public to keep governments in check. The tools available to curb ex-cessive economic power include merger control and breaking up large monopolies. While the antitrust toolbox is (mostly) equipped to dis-mantle concentrated economy-wide entities with potentially detri-mental political influence over policymakers, identifying such entities is beyond the capabilities of antitrust laws. Existing literature offers no comprehensive methodology for identifying the kind of economic “bigness” that threatens not only com-petition but also the integrity of political systems. The quest for such a methodology is crucial because without it, any intervention in the mar-ket will be timid, overly cautious, and probably delegitimized by these entities. This Article documents the incremental emergence of an Is-raeli methodology for identifying economy-wide power with excessive influence on policymakers. Building on this experience, in itself an ex-periment based on U.S. scholarship, this Article proposes a pillar for a universal methodology for identifying the accumulation of influence by economic entities, as a first step to curb the kind of economic “big-ness” that endangers democracy.

Recommended Citation

Baum, Ido and Messer, Davida Lachman (2022) "Can the Next Amazon or Facebook Be Controlled Before It Becomes Too Powerful?," University of Memphis Law Review: Vol. 52: Iss. 4, Article 1.
Available at: https://digitalcommons.memphis.edu/um-law-review/vol52/iss4/1