Addressing Big Tech\u27s Market Power: A Comparative Institutional Analysis

This Article provides a comparative institutional analysis of the three leading approaches to addressing the market power of large digital platforms: (1) traditional antitrust law, the approach thus far taken in the United States; (2) ex ante conduct rules, the approach embraced by the European Union\u27s Digital Markets Act and several bills under consideration in the U.S. Congress; and (3) ongoing agency oversight, the approach embraced by the United Kingdom with its newly established Digital Markets Unit. After identifying the general advantages and disadvantages of each approach, the Article examines how they are likely to play out in the context of digital platforms. It first examines whether antitrust is indeed too slow and indeterminate to tackle market power concerns arising from digital platforms, as proponents of ex ante conduct rules and agency oversight have suggested. It next considers possible error costs resulting from the most prominent proposed conduct rules: (1) structural separations and line of business restrictions; (2) bans on self-preferencing by platforms; (3) requirements to allow platform users to remove pre-installed software, sideload apps, and use alternative payment systems to make purchases on the platform; and (4) data-portability, data-sharing, and platform interoperability mandates. It then shows how three features of the agency oversight model - its broad focus, political susceptibility, and perpetual control - render it particularly vulnerable to rent-seeking efforts and agency capture. The Article ultimately concludes that antitrust\u27s downsides (relative indeterminacy and slowness) are likely to be less significant than those of ex ante conduct rules (large error costs resulting from high informational requirements) and ongoing agency oversight (rent-seeking and agency capture)