The Yale Law Journal

Law and Technology

Article

Deplatforming

Ganesh Sitaraman

This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. It shows that the tension between service and exclusion is endemic to common carriers, utilities, and other infrastructural services, including technology platforms, and that the American …

Forum

Dominant Digital Platforms: Is Antitrust Up to the Task?

Steven C. Salop

Consolidation through mergers and exclusionary conduct by dominant firms can harm consumers and workers and reduce innovation. Digital networks are a particular concern because of barriers to entry. While antitrust law in principle can be strengthened by evolution, new legislation would be a more ra…

Forum

Antitrust’s High-Tech Exceptionalism

Rebecca Haw Allensworth

Today, the digital marketplace is dominated by only a handful of tech companies. During the last two decades, American antitrust law has acquiesced to this consolidation not only by failing to evolve from its roots in smoke-stack industries, but also by giving big tech special dispensation under tra…

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Market Definition and Anticompetitive Effects in Ohio v. American Express

Aaron M. Panner

With high-tech industries attracting increased scrutiny, the Supreme Court’s analysis of the two-sided market in Ohio v. American Express will be a focus of antitrust litigation.  This Essay argues that, despite the apparent focus on market definition, the Court’s opinion is most persuasive in its c…

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The Easterbrook Theorem: An Application to Digital Markets

Joshua D. Wright & Murat C. Mungan

Frank Easterbrook argued that erroneous antitrust convictions are more costly than erroneous acquittals. We find that if he is correct, the optimal standard of proof is stronger than preponderance of evidence. Our conclusion stands in stark contrast to proposals to reduce the evidentiary burdens fac…

Forum

The New Antitrust/Data Privacy Law Interface

Erika M. Douglas

Antitrust theory portrays data privacy as a factor, like quality, that improves with competition. This Essay argues that view, though not inaccurate, is incomplete. It offers a new account of how data privacy interests have begun to clash at the margins with antitrust law, particularly in the digita…

Review

The Law of Informational Capitalism

Amy Kapczynski

Informational capitalism brings new dangers of surveillance and manipulation—but also of accelerating monopoly, inequality, and democratic disempowerment. Examining two important new books on the topic, this Review maps the law and political economy of informational capitalism, a domain of rising pr…