Professor Zephyr Teachout shared her expert opinion on antitrust policies with The New York Times and ProMarket.
Word that the White House plans to pick Lina Khan, a Columbia Law professor whose research has spurred a rethinking of competition law, for a seat on the Federal Trade Commission has Washington and business types speculating that the Biden administration is preparing to get tough on antitrust. (She would need to be confirmed by the Senate.)
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Zephyr Teachout, a Fordham Law professor who supports tough antitrust policies, said that Ms. Khan — and her Columbia Law colleague, Tim Wu, who was recently named to the National Economic Council — were “two extraordinary, powerful choices” that give “hope that the last 40 years of consumer welfarism in antitrust could be on its last legs.”
A Change of ValuesWhat makes Khan’s nomination so significant isn’t just her critique of the current status quo in antitrust, but also what she proposes replacing it with. In “Amazon’s Antitrust Paradox,” Khan argued that the unique anticompetitive harms associated with platform markets—harms that the current dominant paradigm in antitrust fails to capture—require a reevaluation of the way antitrust law is enforced. She suggested replacing the consumer welfare framework with a framework “oriented around preserving a competitive process and market structure.” Instead of focusing on price and output, this approach would focus on market structure and competition, with the intent of protecting not just consumers, but also suppliers and workers through measures that would aim for a fairer distribution of economic power—for instance, prohibiting vertical integration by dominant platforms, the kind that Amazon used to enhance and entrench its power by operating as marketplace and at the same time as a competitor of firms that rely on its platform. In cases where a dominant platform like Amazon is pricing products below cost, she wrote, such a regime would introduce a “presumption of predation.”