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Do Antitrust Laws Need Overhauling?

Concern has been mounting on both sides of the political aisle over the growing size and sway of Big Tech firms. Democrats cite concerns about the massive wealth these companies have accrued through vertical integration, while Republicans fear that liberal activism within these companies has led to censorship of conservatives online—most notably former President Trump.

Joshua Wright, former FTC commissioner and leading antitrust scholar at George Mason University’s Antonin Scalia Law School, addressed some of the legal and regulatory issues surrounding Big Tech at a BC Law Federalist Society event on April 5 titled “Silencing a President: The Dangers of Big Tech.” He provided an overview of the current antitrust challenges pending against Google and Facebook, before segueing into a discussion of Congressional proposals meant to address these issues.

Regarding Senate-led proposals to amend antitrust legislation, Wright weighed the pros and cons of legislation proposed by 2020 Democratic presidential contenders Elizabeth Warren, Bernie Sanders, and Amy Klobuchar. Among these proposals, Senator Warren’s, which would prohibit vertical integration for companies over a certain size, bore the brunt of his criticism for what he called its overly broad language.

The bill, Wright said, “prevents Apple from having Apple stores, Walmart from selling private label products” and is not sufficiently tailored to Big Tech. When you actually write these bills and people read the language, he noted, whom they apply to is “a little bit different than what it sounds like during a presidential campaign.”

Nevertheless, Wright conceded, proposals from the right were not much better, saying, “There’s no monopoly—no pun intended—on bad ideas to change antitrust laws.”

Legislative overhaul of antitrust legislation is unnecessary to address the concerns of either party, Wright argued. Citing the 85 percent administrative win rate on such cases, he said that the best solution would be one that simply enabled the FTC to try more cases, perhaps through increased funding. While the concerns of both sides are valid, Wright emphasized, novel antitrust legislation is not the solution.

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