Antitrust's High-Tech Exceptionalism

Abstract

American competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power-- that it failed to evolve to address the market realities of the technology sector-is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets in the early 2000s -that they were uniquely dynamic, innovative, and competitive -these courts carved out special exceptions to antitrust rules about tying and the duty to deal with competitors. The tech companies have used this blank check to entrench their market power and keep start-ups from becoming what they themselves once were: the next big thing.