I. Is Antitrust all about a Paradox?
Many academic lawyers and economists see antitrust enforcement as either being too lax or too prone to over-regulation.2 Today, Bork’s antitrust “paradox” is even more relevant, because increasingly dynamic data-driven markets are making the enforcement of antitrust principles challenging. Price is no longer the main parameter of competition — most digital markets are data driven, and products and services are offered free of charge to users. Network effects, which characterize these markets, can easily lead to a “winner takes all” outcome.3 As a consequence, concentration in data markets is likely to be the result of a company’s success rather than anticompetitive conduct — and no antitrust action at all or heavy fines seem to be the common solutions.
Like in the past, the antitrust “paradox” seems to be what antitrust is all about — a discipline that is constantly seeking to define its identity and scope. Some scholars have suggested that antitrust should be simply abolished,4 on the basis that for much of its history it has done more harm than good. But, as simple and attractive this suggestion might be, it is unlikely to be an effective solution.
II. Could Consent Hold the Key to Resolve such a Paradox?
In 1906, the DOJ reached the first consent-based solution to settle an antitrust investigation in Otis Elevator Co.5 Nowadays, approximately ninety…