We Need Rules to Rein in Big Tech

CPI Antitrust Chronicle October 2020

NYU Law and Economics Research Paper No. 20-46

7 Pages Posted: 13 Nov 2020 Last revised: 16 Dec 2020

See all articles by Eleanor M. Fox

Eleanor M. Fox

New York University School of Law

Harry First

New York University School of Law

Date Written: October 27, 2020

Abstract

What should the U.S. do about Big Tech? This essay proposes antitrust rule-making by the Federal Trade Commission. Case-by-case litigation is too slow and too piecemeal, and the Sherman Act jurisprudence is too conservative. Break-ups are unlikely to be ordered; even divestitures of anti-competitive acquisitions may prove difficult to implement where a platform has deeply integrated those acquisitions into its operations. Legislative restructuring and a required separation of functions raise the need for on-going supervision and the potential for regulatory capture. In comparison, the FTC is an established agency with competition as a core mission. It already has significant evidence of Big Tech's economic power and how they use it to stifle competition and take advantage of people as consumers, users, and budding competitors. The FTC uniquely has power over anti-competitive, unfair, and anti-consumer tactics, can address the problems holistically, and can best assure that Big Tech plays by the rules. With rule-making proceedings, the United States would finally join the international conversation over how to deal with the global challenge that Big Tech platforms present.

Keywords: Antitrust, Department of Justice, Federal Trade Commission, Platforms, Competition Policy, Consumer Welfare Standard, High Tech, GAFA

JEL Classification: K21, L40, L41

Suggested Citation

Fox, Eleanor M. and First, Harry, We Need Rules to Rein in Big Tech (October 27, 2020). CPI Antitrust Chronicle October 2020, NYU Law and Economics Research Paper No. 20-46, Available at SSRN: https://ssrn.com/abstract=3724595

Eleanor M. Fox

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6171 (Phone)

Harry First (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6211 (Phone)
212-995-4760 (Fax)

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