Innovation Misunderstood

61 Pages Posted: 6 Sep 2023 Last revised: 10 Mar 2024

See all articles by Maurice E. Stucke

Maurice E. Stucke

University of Tennessee College of Law

Ariel Ezrachi

University of Oxford - Faculty of Law

Date Written: August 21, 2023

Abstract

Innovation is transformative and key to future prosperity. It is therefore of no surprise that antitrust laws seek to promote it. What is surprising, however, is that despite the central role that innovation occupies in competition cases, its actual treatment by the courts is far from nuanced.

In this paper, we reflect on the D.C. Circuit’s 2023 ruling in N.Y. v Meta to illustrate the prevailing monocular vision adopted by the court in its treatment of innovation. That vision, we argue, reflects simplistic assumptions as to innovation dynamics and mistaken beliefs about the digital economy. It is further compounded by jurisprudential problems that characterize U.S. antitrust laws.

The result is troublesome. While “everyone talks about innovation,” the courts do little to inquire about its scope, nature, and value. Nor do courts recognize the impact of anticompetitive strategies deployed by the dominant platforms on disruptive innovations and their heterogeneity.

Keywords: Innovation, competition law, antitrust, digital economy

JEL Classification: K21, D42, L41, O30

Suggested Citation

Stucke, Maurice E. and Ezrachi, Ariel, Innovation Misunderstood (August 21, 2023). American University Law Review, Vol. 73, University of Tennessee Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4547201 or http://dx.doi.org/10.2139/ssrn.4547201

Maurice E. Stucke (Contact Author)

University of Tennessee College of Law ( email )

1505 W. Cumberland Ave.
Knoxville, TN 37996
United States
865-974-9816 (Phone)

HOME PAGE: http://www.mauricestucke.com

Ariel Ezrachi

University of Oxford - Faculty of Law ( email )

Oxford
United Kingdom

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