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 worldâubiquitous "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 playersâAmazon, Apple, Facebook (Meta), Google (Alphabet), and Microsoftâhave 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 Techârelying primarily on the federal Sherman Actâthat 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 2âwhich can be enforced by the California Attorney General and private individuals and businesses in Californiaâwill likely be enough to address any reasonable monopolization concerns regarding Big Tech platforms.