Antitrust is Poised for Change: How Far Will It Go?

A lively debate about the effectiveness of current antitrust laws and enforcement capabilities has erupted in the U.S., focused in particular on the competitiveness of what has been labelled “digital markets.” This article focuses on two of the most recent contributions to that debate, the fruits of hearings held by the U.S. House Judiciary Committee, Subcommittee on Antitrust, Commercial and Administrative Law, which propose potentially significant reforms.  The two reports join an ongoing and global discussion of the institutional and doctrinal adequacy of competition law to adapt to new technology-driven business models and the information economy.  This article summarizes the legislative recommendations of the two reports, evaluates areas of agreement and disagreement among the two reports, considers public reaction to the recommendations, and evaluates the likelihood of the legislative proposals becoming law.

By Andrew I. Gavil & Angel Prado¹

I. INTRODUCTION

On October 6, 2020, the majority staff of the U.S. House Judiciary Committee, Subcommittee on Antitrust, Commercial and Administrative Law, released a long-anticipated report on the state of competition in digital markets (“Staff Report”).² The 450-page Staff Report is the capstone of a year-plus investigation of some of the largest online companies and the effectiveness of current antitrust law and enforcement. As had been expected, the Staff Report argues that there is inade