Experimentalism in Digital Platform Markets: Antitrust and Utilities' Convergence

Abstract

The ideal of self-correcting competitive markets has delayed proper acknowledgement of consumer harm and monopolization in technology platform markets. Two attitudes have long dominated the policy landscape: a historical reluctance to over-enforce antitrust and a tendency to frame the regulation of digital platforms in categorical terms. Should policy makers “regulate” or should they “break up” Big Tech? Should they decentralize digital power, or should they transform companies like Google into accountable bottlenecks? These ways of articulating the problem reflect an impoverished understanding of the scope of antitrust law and the nature of regulation in the digital economy and more broadly. Policymakers often rely on narrow justifications for legal intervention such as efficiency, natural monopoly, externalities, and transaction costs. They conceive of antitrust, which includes remedies such as break-ups, as a body of law that acts marginally to preserve pre-legal, efficient, and decentralized market processes. They view utilities and other regulatory schemes as rigid modes of intervention in production that interfere with free competition and limit consumer choice and innovation.

These conceptions obscure a more nuanced picture. Decentralizing and centralizing efforts, which structure digital markets, overlap across legal domains. To make sense of this overlap, the Article defends a conceptual move away from disciplinary categories and discontinuous remedial solutions and toward an experimentalist approach to law in digital ecosystems. In practice, antitrust and regulatory law are converging in revealing ways. Antitrust cases are increasingly sensitive to the gatekeeping power of platform intermediaries and procompetitive digital market regulation is on the rise. As such, the justifications for an either/or approach to antitrust and regulation, e.g. the preference for underenforcement and ex post intervention, are untenable. Antitrust is but one branch of law that structures and enables competition. Regulatory frameworks such as the DMA in Europe do not undermine but instead can promote competition, innovation and consumer choice.

Relying on the case of Google and its regulation between 1998 and 2022, and looking at regulatory schemes such as the EU DMA, AICOA and the AMERICA Act, the Article situates antitrust and public utility efforts as part of a spectrum of regulatory approaches to digital markets. It configures the space of regulatory possibility across ex ante and ex post, centralizing and decentralizing strategies. The question is not whether to break up or regulate Big Tech, it is what forms of competition, innovation and choice a digital society needs as it transforms.

Keywords: Antitrust, regulation, utilities, digital platforms, technology, privacy, speech, interoperability, data portability, FTC, DOJ, AGs, big tech, convergence, pragmatism, pluralism, Google, Alphabet, search, advertising

JEL Classification: K00, K21, K23