Antitrust and Unfair Competition Law
Competition: SPRING 2023, Vol 33, No. 1
Content
- Antitrust Restoration From California Anchored By a New Monopolization Synthesis
- California Should Amend the Cartwright Act To Address Single-firm Monopolization
- Competition Beyond Rivalry: Adapting Antitrust Merger Review To Address Market Realties
- Dormant Commerce Clause: a Potential Brake On State Antitrust Legislation
- Executive Committee
- Message From the Advisors
- Message From the Editor
- Over-prescription Is Bad Medicine: the Case Against a Knee-jerk Revision of Antitrust Injury
- Restrictions On Worker Mobility and the Need For Stronger Policies On Anticompetitive Employment Contract Provisions
- Should California Adopt Revisions Proposed By Congress and the New York State Legislature To Address Single-firm Conduct?
- Table of Contents
- Technological Monopolies, Innovation, and the Personal Freedom To Form Businesses: Like Oil and Water?
- The Adaptable Antitrust Laws
- The Risks of Requiring California-specific Merger Approvals
- Updating the Cartwright Act For the Twenty-first Century: Allowing Antitrust Claims For Unilateral Conduct
- Why Has California Waited So Long To Enact Its Own Merger Review Law?
- 133 Years Young: Sherman Act Section Two Keeps Up With Big Tech
133 YEARS YOUNG: SHERMAN ACT SECTION TWO KEEPS UP WITH BIG TECH
By Madhu Pocha and Patrick Jones1
If the ethos of Silicon Valley could be captured in a single phrase, it would be Mark Zuckerberg’s directive to "move fast and break things." That approach emphasizes the importance of rapid innovation and experimentation, encouraging startups to push boundaries and challenge conventional thinking. It has led to the creation of some of the largest, most valuable companies in the world—ubiquitous "Big Tech" platforms that have helped solidify California as the engine of the American economy. But the rapid growth and increasing dominance of these companies have led to concerns about Big Tech’s potential to stifle competition. Indeed, the major players—Amazon, Apple, Facebook (Meta), Google (Alphabet), and Microsoft—have all been around for a decade or more.2
Is now also the time for regulators to "move fast and break things" in the name of competition? In recent years, the Federal Trade Commission, the U.S. Department of Justice and numerous state attorneys general have advanced an aggressive enforcement agenda against Big Tech—relying primarily on the federal Sherman Act—that seems equally inspired by Zuckerberg’s popular motto. Still, some critics argue states should take enforcement into their own hands through new legislation. In California, one question worth considering is whether the state should revise its antitrust laws to ban single-firm monopolization, perhaps using Section 2 of the Sherman Act or other similar prohibitions recently proposed in various other state legislatures as a model.
We think the answer is no. In our view, Section 2—which can be enforced by the California Attorney General and private individuals and businesses in California—will likely be enough to address any reasonable monopolization concerns regarding Big Tech platforms.