COLUMN / THE ANTITRUST LITIGATOR
Amending the Antitrust Laws to Address Big Tech By JEFFERY M. CROSS
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n April, I participated in a debate at the Dole Institute of Politics at the University of Kansas. The topic was whether the antitrust laws should be amended to address conduct of Big Tech. I took the position that the current antitrust laws were sufficient. A key point I made during this debate was that a monopoly is not illegal. Indeed, in a market economy, we want to encourage producers to strive for a monopoly by innovating or using business acumen. The mere possession of a monopoly is not only not unlawful,
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it is an important element of a freemarket system. It is also well-established that monopolists are both expected and permitted to compete. As courts have stated, a monopolist is not obliged to “watch . . . the quality of its products deteriorate and its customers become disaffected” and “lie down and play dead” because “even a monopolist is entitled to compete.” To encourage the risk-taking that results in innovation, we reward the producer lawfully establishing a monopoly with monopoly
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profits, at least for the short term. The theory is that new entrants will be attracted by the monopoly profits and will drive profits back to competitive levels. However, aspects of several Big Tech firms — Facebook, Google, Amazon — create substantial barriers to entry that hinder this mechanism. Perhaps the most significant is the so-called “network effect,” in which a business becomes more valuable to users the more people use it. For example, the more people that are on Facebook, the more developers BACK TO CONTENTS
