Submission of Spencer Weber Waller to House Judiciary Antitrust Subcommittee Investigation of Digital Platforms

Abstract

In the course of its investigation of digital platforms the House Judiciary Antitrust Subcommittee invited submissions on 1) the adequacy of existing laws that prohibit monopolization and monopolistic conduct; 2) the adequacy of existing laws that prohibit anticompetitive transactions; and 3) whether the institutional structure of antitrust enforcement is adequate to robustly enforce the antitrust laws. My submitted comments are limited to questions one and three. I do not believe that existing U.S. monopolization law is adequate to address potentially anti-competitive conduct by digital platforms or other dominant firms. I also do not believe that the U.S. institutional structures are sufficient to robustly enforce the antitrust laws. I do believe that the United States can benefit from learning from the evolving international consensus on these issues as outlined below. As I discuss in my forthcoming article, The Omega Man or The Isolation of U.S. Antitrust Law, 52 Conn. L. Rev. (2020), the United States is an outlier in the world competition law community in its approach to the behavior of dominant firms. We currently have different, and often more limited, definitions of dominance, causes of actions, remedies, market study capabilities, and other necessary aspects of competition policy that are common in the European Union and much of the rest of the world competition community. I summarize these differences in my written submission. The full text of my article is available upon request and is also available in draft form online at https://ssrn.com/abstract=3295988.