Self-Regulating Platforms and Antitrust Justice

Abstract

Until recently, we lived in an era dominated by the ideal of the self-regulating platform market. The hope was that digital platforms such as Amazon Marketplace, Google Search or Twitter could remain autonomous, inherently efficient and self-governing spaces of exchange immune from political whims and from the corrupt laws of states. By envisioning “markets” as separate from “politics” and digital platforms as divorced from political life, dominant schools of antitrust law have long justified distributive asymmetries and concentrations of commercial power. Today, it is difficult to deny that digital platforms are more than efficient spaces for commercial exchange; they are also political actors that engage in lobbying, gatekeepers that curate platform infrastructures as loci of engagement and social environments that have real effects on people’s lives.

Taking stock of the law’s blind spots, this Essay argues that digital platforms’ contested status represents an opportunity to bridge the imaginary market- politics divide in antitrust law and beyond. Platforms powerfully reveal that market processes are also political processes. They highlight that antitrust law must bring commercial life into alignment with societal needs. The Essay looks at the specific ways in which antitrust law has interacted with digital platforms, shaping and interpreting these spaces as ‘self-regulating’ marketplaces. It shows that the facial neutrality of Chicago School antitrust’s emphasis on total welfare maximization and efficiency has actively contributed to the erosion of social and collective values in these spaces. Embedding the values of equality and reciprocity in the structure of digital markets and re-imagining platform environments as more openly political is, I argue, not only possible but urgent in the context of the increasing privatization of digital life.

Keywords: antitrust, self-regulating market, platform, Polanyi, Amex, US, competition, justice, legal theory, political theory, privacy, data, lock-in, de-regulation, self-regulation, neoliberalism, Chicago School, Brandeis, Neo-Brandeisian, Progressive

JEL Classification: K21