Anat Alon-Beck, J.D. – Associate Professor of Law

Dear Colleagues:

I don’t think most of us would have much trouble believing that Google uses monopoly power to get advantages over its customers and competitors.

Antitrust law enforcement was fairly weak for a period of decades, partly because potential regulators in the “1970s and 1980s… adopted a laissez-faire approach to antitrust policy” and “argued that a firm’s size did not matter and that the benchmark for bringing an antitrust case should be the exertion of market power that demonstrably hurts consumers.” This meant less attention to how very large firms could squeeze out competitors and posed the obvious problem of how one could show that companies that had grown to dominate a new market were harming millions or billions of consumers who hadn’t quite ever had alternatives.

A reaction began, in part, with the Justice Department’s suit in the 1990s against Microsoft’s “stranglehold on personal computer software,” which ended in a consent decree approved in a series of stages in the 2000s. As Professors Anat Alon-Beck, Rita Bryce, Eric Chaffee and Raymond Ku have argued, the Microsoft case provides some context for current litigation against Google.

But the Google situation is a bit more complicated for a few reasons. First, in the past 25 years the European Union has become another venue for competition regulation. Second, Google at the moment faces multiple federal government proceedings. In August, U.S. District Judge Amit Mehta ruled that “Google had acted illegally to maintain a monopoly on the search engine market,” “the culmination of an antitrust lawsuit that the Justice Department filed against Google in 2020, which was joined by 38 state attorneys general.” That lawsuit is now in the stage of arguing about remedies (and presumably fighting over appeals as well). Meantime, a trial began in September over claims that Google has built and maintained a monopoly over online advertising technology, again giving it market power that allows it to “keep as much as 36 cents on the dollar when it brokers sales between publishers and advertisers.” In a third case, after losing a jury trial, Google has been ordered to “open up its lucrative App store, Play, to greater competition, including making Android apps available from rival sources.”

In partial response, Google has gone after Microsoft, filing an antitrust complaint with European competition authorities in ways that (by Microsoft’s account), involve some rather underhanded political tactics. Meantime, it is hard not to wonder whether the sheer volume of litigation suggests that lawsuits are not going to be the appropriate way to make policy, leading to calls for “a digital regulator.”

There are all sorts of other reasons for something like that – setting some sort of limits on AI comes quickly to my mind. But even if we just see this as an antitrust or economic competition question, it just seems to be getting hotter and hotter. Most of the links in the description above are from the past two months. What on earth is happening, what might happen next and, by the way, how might any of this be affected by the new administration? That too is not at all clear.

Joe White
Luxenberg Family Professor of Public Policy and Director, Center for Policy Studies

About Our Guest

Anat Alon-Beck’s research focuses on corporate law and governance. Her work examines how legal and regulatory structures influence the shift in equities from public markets to private markets, and the rise in the number of “unicorn” firms, which are privately held venture-capital backed startups that are valued at $1 billion or more. She hopes to develop a novel, comprehensive framework within which a deeper understanding of market contracting, regulatory changes, and policy surrounding unicorn firms can be achieved. Her research on these issues is frequently cited by policymakers, judges, leading scholars in the corporate law and finance fields. It was cited to US Congress, the Securities and Exchange Commission and the 9th Circuit Court of Appeals.

Professor Alon-Beck holds JSD and LLM degrees, with honors, from Cornell Law School, where she served as an editor of the Cornell International Law Journal. She received her LLB from Tel Aviv University Buchmann Faculty of Law and served as an editor of Theoretical Inquiries in Law.