The majority staff of the House Judiciary Committee recently released its Report and Recommendations (“MSRR”) following an investigation of competition in digital markets.  It claims that the leading digital technology firms (Alphabet, Amazon, Apple, Facebook) have acquired and maintained monopoly power by exclusionary conduct, and blames this on alleged narrow vision and weak enforcement efforts of the U.S. antitrust agencies and courts.  The MSRR proposes a near-total revision of U.S. antitrust, restoring the enforcement approaches of fifty years ago when per se rules and structural presumptions were predominant.  Considering that the U.S. is the unquestioned leader in digital technology, and that the EU has far fewer leading digital technology firms but does have antitrust rules very much like those proposed by the MSRR, it seems that both the MSRR’s view of the evidence and the logic of its proposals are questionable.

By Abbott Lipsky, Jr.1

  

U.S. antitrust law has gone through a long evolutionary process of refinement in light of changing business practices and improving understandings of how the economy functions and how it responds to the law-enforcement systems applied to competitive conduct. The Sherman Act contains two very brief and general prohibitions – on “restraint of trade” and “monopolization” – which require interpretation by courts faced with particular forms of business conduct challenged in specific cas

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