Time for a New Antitrust Era: Refocusing Antitrust Law to Invigorate Competition in the 21st Century

Abstract

U.S. antitrust laws have repeatedly responded to the changing needs of the nation’s economy. As the marketplace grows ever more data-driven, we find ourselves at yet another critical economic juncture that requires us to revisit antitrust practices to ensure healthy and sustainable competition. In this article, we propose two new antitrust approaches that fit into the existing regulatory landscape, detect signs of anticompetitive behavior early, and handle the unique nature of the digital marketplace. First, we advocate for an expanded definition of monopoly power under the Sherman Act that takes corporate data ownership into account. While current proxies for monopoly power, namely market share and price control, are symptoms of anticompetitive behavior, data ownership is increasingly its harbinger. Second, we advocate for an expanded premerger review process that seeks to prevent nascent competitors from being swallowed up by dominant players, a widespread practice that can be shown to reduce competitiveness. To this end, we leverage new insights from network science and empirical data to anticipate which types of mergers are most likely to have anticompetitive effects. Finally, we propose scalable regulatory strategies to discourage the anticompetitive behaviors we describe in their incipiency, without requiring case-by-case review.