Google,Facebook,Amazon,Apple, and Microsoft, among others, for presumed anticompetitive acts.
Antitrust is thought to have failed,
and enforcement laxity is presumed to have set in,
with a few
individuals and businesses materially benefiting at the expense of the many.
involvement clamor is substantial.
Two complementary institutional approaches exist. The first approach is structural, anchored on
antitrust. This is the stick. The second approach is behavior regulation,
anchored on regulatory
policies. This is the carrot; defined in a relative sense where regulations incorporate incentives.
The presumed anticompetitive behavior of firms has raised concerns, and a remedies’ need is
The necessity to control firms and make them answerable is palpable.
of presumed anticompetitive behavior has led to suggestions involving the enforcement of struc-
tural separations as sanctions.
Theissue iswhethertouseastructural or a behavioral approach in
remedy design. The allied question of which approach, the structural or the behavioral, generates
relatively better performance is unexplored. This article presents evidence as to which remedy is
A. The Crying Need and a Confusing Controversy
While the need for rebalancing antitrust versus regulatory approaches has been recognized,
there is a
misperception on how to achieve rebalancing.
The debate is extensive and otiose, but facts are
as to which approach, structural or behavioral, is more effective.
assessment, involving the weighing of each type of remedy’s merits, debates are inchoate.
A set of views posit that competition, as an outcome of the structural approach, is always superior
for governing an economy.
Another view describes the endemic cases of market failure arising as
due to firms’ preconceived egregious behaviors.
These market failure outcomes call for extensive
and-google/?utm_sour ce¼CPIþSubscribers&utm _campaign¼a6987a6f83- EMAIL_CAMPAIGN_2020_0 1_25_06_27&
4. Carl T. Bogus, The New Road to Serfdom: The Curse of Bigness and the Failure of Antitrust,49U.MI.J.LAWREF. 1 (2015).
5. Carl Shapiro, Protecting Competition in the American Economy: Merger Control, Tech Titans, Labor Markets, 33 J. ECON.
PERSP. 69 (2019).
6. Maurice E. Stucke & Ariel Ezrachi, The Rise, Fall, and Rebirth of the U.S. AntitrustMovement, HARVARD BUS.REV.,Dec. 15
7. JOHN A. KAY &JOHN S. VICKERS Regulatory Reform: An Appraisal,inDEREGULATIONOR RE-REGULATION 223 (GIANDOMENICO
MAJONE, ed., 1990).
8. Joseph A. Farrell & Philip J. Weiser, Modularity, Vertical Integration, and Open Access Policies: Towards a Convergence
of Antitrust and Regulation in the Internet Age, 17 HARVARD J. LAW &TECH. 85 (2003); Howard Shelanski & J. Gregory
Sidak, Antitrust Divestiture in Network Industries, 68 U. CHICAGO LAW REV. 1 (2001); U. S. House of Representatives,
Subcommittee on Antitrust, Commercial and Administrative Law of the Committee on the Judiciary, Investigation of
Competition in Digital Markets (2020) [hereinafter Competition in Digital Markets].
9. Kelly Fayne & Gabrielle Kohlmeier, Editor’s Note: “No Question of More Pressing Importance?”82A
NTITRUST L. J. 763
10. Competition in Digital Markets,supra note 8.
11. Howard Shelanski, The Case for Rebalancing Antitrust and Regulation, 109 MICH. L. J. 683 (2011).
12. Howard Shelanski, Antitrust and Deregulation, 127 YALE L. J. 1922 (2018).
13. Three studies, by Tomaso Duso et al., How Effective is European Merger Control? 55 EUR.ECON.REV. 980 (2011); John E.
Kwoka, Does Merger Control Work? A Retrospective on U.S. Enforcement Actions and Merger Outcomes,78ANTITRUST L.
J. 619 (2013); and JOHN E. KWOKA,CONTROLLING MERGERS AND MARKET POWER:APROGRAM FOR REVIVING ANTITRUST IN
AMERICA (2020), have concluded that both structural and behavioral remedies are, at best, only partially effective.
14. Hal R. Varian, Recent Trends in Concentration, Competition and Entry, 82 ANTITRUST L. J. 807 (2019).
15. William E. Kovacic & Carl Shapiro, Antitrust Policy: A Century of Economic and Legal Thinking, 14 J. ECON.PERSP.43
16. Williamson, Economies as an Antitrust Defense: The Welfare Trade-Offs, 58 AMER .ECON.REV. 18 (1968); OLIVER E.
WILLIAMSON,MARKETS AND HIERARCHIES:ANALYSISAND ANTITRUST IMPLICATIONS (1975); Oliver E. Williamson, Economies as
432 The Antitrust Bulletin 66(3)