antitrust law. Rather, as these new platform regulations considerably depart from the status quo of
conventional antitrust enforcement, they also constitute a mirror that throws into relief and, thereby,
allows us to better understand the basic economic and normative predispositions that shaped modern
antitrust law over the last four decades. In unpacking how the new platform regulations reconfigure
these predispositions, the article inquires into the broader implications that the new platform regula-
tions may entail for the future of antitrust law. The paper argues that these new initiatives to regulate
digital competition mark a “paradigm adjustment” of modern antitrust along four fault lines.
First, being geared toward promoting fairness, contestability, and non-economic values such as
privacy, the new platform regulations openly reject the long-standing dogma that consumer welfare
constitutes the only rational and legitimate goal of competition law. Instead, they emphasize that the
protection of competition, as the key mission of competition law, extends beyond promoting consumer
welfare and is capable of embracing other values.
Second, the new platform regulations also challenge the conventional wisdom that false positives of
competition law enforcement are more costly than false negatives. Instead, the new platform regula-
tions embody a recalibration of the error-cost framework which recognizes that the probability and
magnitude of anticompetitive harm in digital markets may be greater than usually assumed by conven-
tional antitrust literature.
Third, this recalibration of the error-cost framework becomes apparent in the reliance of the new
platform regulations on a broad set of ex ante rules that introduce presumptions of illegality for specific
types of platform conduct. By forging rule-like legal presumptions as legal commands to regulate the
conduct of digital platforms, the new regulations depart from the “effects-based” analysis as the default
mode of assessment of the “more economic approach.” Instead of endorsing an inductive case-by-case
approach, the new platform regulations highlight the value of economically informed rebuttable pre-
sumptions in antitrust analysis.
A fourth distinctive feature of the new platform regulations that also reflects the recalibration of the
conventional error-cost framework is their recourse to a probabilistically de-weighted or bounded stan-
dard of proof. Instead of requiring the showing of actual or likely anticompetitive effects, the new
platform regulations compel antitrust intervention on the mere basis that specific forms of conduct by
powerful platforms may result in potential anticompetitive harm of significant scale. This bounded
probabilism of the new platform regulations thus marks an important departure from the increasing
trend in conventional antitrust analysis to make the finding of unlawful conduct conditional on the
showing that anticompetitive effects are more likely than not.
Against the backdrop of this recalibration of the goals, error-cost framework, legal commands, and
standard of proof, the article concludes that the new platform regulations epitomize a fundamental
rethink of innovation in digital markets. In fact, the new platform regulations openly discard the
Schumpeterian conception of innovation that has shaped mainstream antitrust enforcement in dynamic,
high-tech markets. Instead of being concerned about the ability of large-scale incumbents to appropriate
and recoup their investments in the development of innovative technology, products, and services, the
new platform regulations aim to ensure market openness and contestability and preserve smaller busi-
ness users’ and rivals’ sunk investments in digital innovation.
To illustrate how the new platform regulations disrupt and evolve competition law in readjusting the
predispositions of modern antitrust, the remainder of the paper is organized as follows. Section II pro-
vides an overview of the new regulations adopted or currently discussed in Germany, the European
Union (E.U.), the United Kingdom (U.K.), and the United States (U.S.) to reign in the economic power
of digital platforms. Section III describes how the new platform regulations depart from the conven-
tional, monolithic, and consumer welfare-based understanding of competition law which assumes that
the ultimate mission of competition law consists of securing that consumers get a better deal in terms
of lower prices, greater quality, new products, or broader choice. Section IV traces how the new plat-
form regulations bring about a recalibration of the conventional error-cost framework of antitrust law.