Peering Beyond Nirvana: A Comparative Institutional Analysis of Proposed Means of Addressing the Market Power of Digital Platforms

Abstract

This Article provides a comparative institutional analysis of the three leading approaches to addressing the market power of large digital platforms: (1) traditional antitrust, the approach thus far taken in the United States; (2) ex ante conduct rules, the approach embraced by the European Union’s Digital Markets Act and several bills recently advanced by the Judiciary Committee of the U.S. House of Representatives; and (3) ongoing agency oversight, the approach embraced by the United Kingdom with its newly established “Digital Markets Unit.” After identifying the general pros and cons of each approach, the Article examines how they are likely to play out in the context of digital platforms. It first examines whether antitrust is indeed too slow and indeterminate to tackle market power concerns arising from digital platforms, as proponents of ex ante conduct rules and agency oversight have suggested. It next considers possible error costs resulting from the most prominent proposed conduct rules: (1) structural separations and line of business restrictions; (2) bans on self-preferencing by platforms; (3) requirements to allow platform users to remove pre-installed software, “side-load” apps, and use alternative payment systems to make purchases on the platform; and (4) data portability, data sharing, and platform interoperability mandates. It then shows how three features of the agency oversight model — its broad focus, political susceptibility, and perpetual control — render it particularly vulnerable to rent-seeking efforts and agency capture. The article ultimately concludes that antitrust’s downsides (relative indeterminacy and slowness) are likely to be less significant than those of ex ante conduct rules (large error costs resulting from high informational requirements) and ongoing agency oversight (rent-seeking and agency capture).