Hipster antitrust: Not so cool

By Justin Ling May 11, 201811 May 2018

Hipster antitrust: Not so cool
Photo by rawpixel on Unsplash

 

There are many things antitrust law shouldn’t do: Like fixing everything from bad labour practices, low wages, media centralization, and everything in between. At least that was the consensus among a panel of legal experts discussing the growing influence of the hipster antitrust movement at the CBA’s Competition Law Spring Conference in Toronto on Thursday.

The question put to them for debate, at a time when there is a growing backlash against tech giants in particular, was whether public interest or other consumer-focused considerations have a place in antitrust enforcement.

Joshua Wright, a George Mason University Professor and Executive Director of the Global Antitrust Institute, located near D.C., has been pushing back against the rising tide of populism that is trying, in his view, to twist antitrust law into a sort of progressive swiss army knife. “Most of the ideas have a bit of a retro, blast-from-the-past feel,” he said.

Mind you, the U.S. has a pretty rich antitrust history — going back to adoption of the Sherman Antitrust Act in 1890, under which the federal government filed cases that led the breakups of Standard Oil in 1911 and AT&T in 1984. According to Wright, right up until the 1960s American courts laid the groundwork for a “vague public interest standard” that would allow governments and litigants to try to shoehorn in a variety of non-economic interests into antitrust law.

It was “antitrust as counter-culture,” he said. But that movement laid relatively quiet — until now.

The U.S. Democratic Party has an entire platform plank on antitrust, entitled “Cracking Down on Corporate Monopolies and the Abuse of Economic and Political Power.” Politicians and theorists in Canada and elsewhere are talking about what to do with tech conglomerates like Facebook and Google. Many are wondering whether antitrust law can reverse the trend of growing inequality in the West.

All of which may be laudable goals, said Vicky Eatrides, the Deputy Commissioner of the Competition Promotion Branch in Canada’s Competition Bureau. But they have little to do with antitrust law. The antitrust world needs to keep its eyes ahead and “stay in our lane.”

It’s a view that may not win many friends, Eatrides concedes. “It can come across as technocratic, it comes across as unfeeling.”

But there’s a real risk to straying away from focusing on promoting efficiencies and competition in the marketplace, said University of Toronto Law School Professor Anthony Niblett. “We’re opening ourselves up for increased discretion of regulators and judges.”

The trade-off in giving regulators and judges a wide berth to push vague notions of public interest is that this will come at the expense of a more efficient marketplace. “It feels a lot like the debates we were having in trade law in the 1990s,” he added.

For now hipster antitrust law may be fashionable in the U.S., said Eatrides, but it has yet to catch on in Canada. While she admitted it may yet be coming, she also underscored just a particular distaste for populism in Canada. What’s more Canada doesn’t have as rich a history as the U.S. in breaking up monopolies.

A recent House of Commons Heritage Committee report recommended expanding the Competition Act to go after an increasingly centralized media market. The Trudeau government, she noted, gave a flat answer: No. Still, she noted certain parts of this hipster movement taking root in language coming out of the Bank of Canada and elsewhere.

Niblett took aim at the increasing weariness over the increasing size of world’s massive tech firms. “Just because it’s big doesn’t mean it’s bad,” he noted. What’s more, he noted: Consumers love those brands. The Cambridge Analytica scandal, for Facebook, notwithstanding, plenty of consumers would be shattered, should the government do anything to make Amazon Prime more expensive, for example. “I question how big this ‘techlash’ actually is,” he said.

Wright underscored that if the U.S. or Canada began migrating away from a very narrow, targeted field of antitrust law, it would be a large break from what the rest of the world is doing — including an array of developing nations that inherited their antirust legal procedures from WTO, OECD, and so on. And, as all three panelists agreed, if the public wants better labour protections or a crackdown on vertical integration — existing laws already cover those things. Just don’t drag antitrust law into it.

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