Law and Technology
Forum
Dominant Digital Platforms: Is Antitrust Up to the Task?
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
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…
Forum
Market Definition and Anticompetitive Effects in Ohio v. American Express
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…
Forum
The Easterbrook Theorem: An Application to Digital Markets
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
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
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…