A Revolution Without a Cause: The Digital Markets Act and Neo-Brandeisian Antitrust
Abstract
This Article uses the Digital Markets Act, which took effect on November 1, 2022 in the European Union, to demonstrate the neo-Brandeisian antitrust movement’s most fundamental problem: it has not yet shown why its proposals are necessary to accomplish its stated goals. Neo-Brandeisians cite perceived unfair conduct by the likes of Google and Apple as evidence that the existing legal regime’s approach of fostering competition has failed, and that a new approach of regulating each unfair conduct specifically is necessary. But the mere fact that bad things happen does not mean that existing law has irredeemably failed, just as the continued existence of crime does not mean that criminal law has failed. The solution might not necessarily be to abandon existing law, but to change how existing law is applied. Indeed, I show that existing law can feasibly achieve the neo-Brandeisian goal of regulating unfair conduct by platforms like Google and Apple, making the DMA unnecessary.
The DMA would also be counterproductive and ineffective for achieving its own stated objectives. For example, the DMA’s requirement that app store owners like Google and Apple use only “transparent, fair and non-discriminatory” criteria to rank apps would not prevent Google and Apple from distorting their rankings—just as a law school ranked outside the top 140 can rank itself second in the nation by equally weighting neutral factors such as “library total square footage” and the number of chairs in the law school library. In fact, an app ranked fourth for revenue on Google Play ranks 148th in the number of users, indicating that Google could easily attach different weights to any number of superficially neutral criteria to produce drastically different rankings. This Article’s chief contention is that, as long as the neo-Brandeisian antitrust movement fails to present a sober cost-benefit analysis of its own proposals, its demand to replace existing antitrust law with regulatory micromanagement of specific conduct will remain a call for a revolution without a cause.
