Donna Faye Imadi ‘22
Staff Editor
“My challenge for today is to convince you that being an antitrust lawyer is cool,” said Chris Hockett ’85 in his opening remarks at the “Antitrust in the Age of Technology” event sponsored by Law, Innovation, Security, and Technoology (LIST) on Wednesday, September 25, 2019.
“I think I’ll take an antitrust class now. I like the way he explained it. It’s a lot of systems thinking. I think I might be good at it,” said Claire McDowell ’22, at the end of the lecture. So, was the mission accomplished at the event? Read on, and perhaps it’ll be mission accomplished for you as well.
Hockett is a former partner at Davis Polk’s Northern California office and global head of the firm’s antitrust practice. He was greeted by a packed room of UVA Law students eager to learn about the evolving and exciting opportunities within antitrust law. Hockett’s remarks focused especially on the new forefront of antitrust enforcement in an age where tech companies have significant power in both data and privacy over consumers and small businesses.
The event began with Professor Nachbar’s introduction of Hockett. Professor Nachbar characterized the event’s purpose as being twofold: First, to “convince you that being an antitrust lawyer is cool.” And second, to introduce “the problem of antitrust in tech,” providing a presentation on an issue—big tech—that “examines the soul of antitrust.”
Hockett then began his presentation. He first framed the tension in the antitrust debate through the backdrop of the four largest tech companies: Google, Amazon, Facebook, and Apple (referred to as GAFA). He characterized how the emergence of GAFA is “leading to concerns about [their] economic and political power” today.
Hockett underscored that, as a result of GAFA’s rapid growth in scope and size within the last ten years, “bipartisan interest has emerged in examining the power” that these mega-tech companies wield within society and a vibrant democracy. “There are presidential candidates who are urging changes in antitrust laws and intensified antitrust enforcement against platforms,” Hockett said, further explaining that their “animosity” toward tech platforms has resulted in even a new word to describe the social/political backlash to tech’s influence—a word called “Techlash.”
The platforms’ “responses to antitrust critiques is that they succeed because they are efficient and innovative—offering extremely valued service to customers. Some for zero to little prices,” Hockett said. He notes that their perspective is such that “they succeeded not because they are doing anything wrong or harming competition . . . and they shouldn't be punished [for that success].”
Here lies the tension. Are tech companies harboring too much power? Or is their power justified because they’ve acquired it through “innovative and productive practices?” Should the government be regulating or breaking up the power of these giant tech companies regardless of the means by which they acquired power, because the effects of their power are too great? Hockett later elaborates on this debate by first presenting the traditional framework of antitrust jurisprudence for the last forty years. Then, he contrasts the “traditional framework” with the new transformative “Brandeis movement” that has emerged in recent years.
Intensifying antitrust regulation is opposed to the dominant theory of “consumer welfare,” which emerged from the “Chicago School of Thought” beginning in the 1970s/1980s (see “The Antitrust Paradox by Robert Bork”). Hockett explained that this prevailing school of thought led to the decline of U.S. antitrust enforcement because its economic theory acts on the presumption that “it is wrong to evoke antitrust against firms just because they are big.” Essentially, according to this theory, “punishing a firm’s success is the opposite of what antitrust should do. Rather, it should be reserved on protecting consumer welfare standards.” As further explained by Hockett, “consumer welfare standards are things such as prices and quality.” This Chicago School Theory has been the prevailing view within antitrust enforcement since the 1970s. It emphasizes that the free market and capitalism—not government regulation—will best correct market forces and regulate the size/scope of companies.
This prevailing standard for the last forty years has led to a significant decline in antitrust enforcement and typically “defendant friendly” courts, says Hockett. But this may change in the future as it’s now being challenged in the context of intensified scrutiny of tech companies. The “rapid rise in size, scope, and perceived political power of tech platforms, data privacy issues, concerns of disruption to incumbent players and industries” have all contributed to this increased scrutiny of tech. The concerns about “fake news” and “increasing social and political divisions and other corrosive online content,” have been at the center of our socio-political discourse, all contributing to how some are now arguing that the techlash presents a new opportunity to shift the way antitrust regulation is carried out.
Hockett presents the questions that these issues in big tech pose: In light of techlash, “should we abandon the ‘consumer welfare standard’” to regulate the industry? If so, “what are the potential unintended consequences” of abandoning the standard? “Is changing antitrust laws or the enforcement approach the right remedy?” These are all questions he presents as unanswered and full of opportunity for young lawyers to grapple with, learn about, and solve.
The “techlash” side of the debate is clear in the political sphere: candidates such as Elizabeth Warren and Amy Klobuchar (as well as Ted Cruz), seem to vocally believe that the “consumer welfare standard” is no longer working, Hockett noted in his presentation.
He then identified the new transformative view of antitrust as the “New Brandeisians.” He explained, their vision is one which “calls to the populist roots of antitrust law”—mirroring the antitrust framework prior to the 1970’s Chicago School of Thought—more similar to the “protection of competitors” framework that came with the break-up of Standard Oil Co. in 1911. Rather than focused on protecting consumer welfare standards such as “price fixing,” they are focused on protecting the ability of “competitors” to enter the market.
The goal under this “New Brandeisians” framework is “to disburse political and economic power of large firms,” Hockett explained. Actors under this believed framework “reject focus of consumer welfare and price effects,” weighing the harm to the “competitive process” rather than consumer welfare. The big worry for the “ New Brandeisians” is the “winner-take-all market dynamics” that mega-tech platforms have created, Hockett says. He painted a picture of this by introducing the framework of Lina Khan’s Yale Law Journal article “Amazon’s Antitrust Paradox,” which introduces the prevailing frameworks of a newly envisioned set of rules for the future of antitrust.
These two views: The “consumer welfare standard” view, emphasizing deregulation, in contrast to the new view that the government needs to intervene to protect competitors (the New Brandeisians), are the backdrop of the emerging debate over whether and how the government should intervene with dominant tech giants that wield significant power over data, security, and the market.
When asked about the challenges that greater regulation may impose, Hockett explained that “you have a diversity of enforcers and these companies are global in scale, so having to comply with the most strict interpretation of the strictest law is going to affect how they do business everywhere, and that means it's going to be a challenge.”
Because these companies harbor massive amounts of data and have the capability to influence and filter the realities of our perceived lives, these tech giants have power over billions of peoples’ privacy and perceived choices in the marketplace. Isabelle Perfetto ’22 commented on what solutions we may be able to devise and whether antitrust is the key to the solution: “People are so focused on breaking up these tech companies, but they don't even know if that will fix what they are worried about. Maybe other solutions such as privacy law might be more appropriate?”
There is no prevailing solution at the moment, as Hockett stated. That’s a big reason why he posits that antitrust is cool. “Antitrust is a hot sector now, and this application of antitrust in technology is really interesting. I am teaching a class on it, and I’d like to have more people take it and come learn.”
Hockett will be offering his course on antitrust starting this November, entitled “Antitrust in the Digital Economy.”
J.R. Isaacson ’22 seemed convinced by the end of the lecture of at least one thing that Hockett relayed: “I like that he said that ‘being a lawyer pays you to learn and especially in the antitrust arena.’ I will take away that . . . I’d like to be paid to learn.”
Regarding the future of antitrust, Hockett closed his remarks stating: “The paint is not dry on this. We haven’t even finished applying the paint. It makes it a specially interesting topic to spend time on because it’s changing every day. That’s not like most of the things you study in law school.”
Critical to the debate of antitrust are things that most of us in law school do every day: such as checking our phones, logging into our Macs, or scrolling on Facebook/Instagram for the tenth time in a day. But as seen through this lens of antitrust, these everyday interactions with technology have big potential to symbolize a greater shift in society than what the simple interface with your technology would lead you to believe. Whether we choose to regulate those “everyday” services differently (through a change in antitrust enforcement starting with big tech) has the potential to reshape our economy, social discourse, and political processes.
Perhaps greater quality and variations of services offered by more platforms could improve our relationships with technology, if more tech competitors were able to enter a more equitable market. Or, perhaps, greater regulation could impose negative effects on consumers of tech, creating disruption in the lives of consumers who are perfectly happy with the status quo of convenience and capacity.
If you take an antitrust class, maybe you’ll write the next chapter in this unwritten script of how society deals with these tensions in big tech and help lead the way into our understanding of the multiple potential realities.
One thing’s for certain, antitrust is something to think about next time you pull out your phone—and an issue to watch out for in the coming 2020 election.
___
dfi3un@virginia.edu