Competition in the Evolving Digital Marketplace–Congressional Hearing - International Center for Law & Economics
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Competition in the Evolving Digital Marketplace–Congressional Hearing

I will be testifying tomorrow before the House Judiciary Committee’s Subcommittee on Courts and Competition Policy on competition in the digital marketplace.  My testimony won’t be surprising to readers of this blog–in fact some of it was lifted directly from blog posts that have appeared here.  Also on the panel are Richard Feinstein from the FTC, Edward Black from CCIA, Morgan Reed from ACT, Scott Cleland from Precursor LLP and Mark Cooper from the Consumer Federation of America.

For some reason the links to written testimony on the House website don’t seem to be working, but my testimony is available here.

A taste for those who prefer not to devour the whole thing:

In brief, given the link between innovation and economic growth, the stakes of “getting it right” are high.  Caution and humility are warranted in light of both the historical hostility towards innovative business practices by competition policy as well as the large gaps of empirically-validated theory in the economic literature on competition and innovation.  The traditional problem of identifying and distinguishing pro-competitive from anticompetitive conduct faced by enforcers and courts in all antitrust cases is a difficult one.  But those difficulties are exacerbated in innovative industries.

Both product and business innovations involve novel practices, and such practices generally result in monopoly explanations from the economics profession followed by hostility from the courts (though sometimes in reverse order) and then a subsequent, more nuanced economic understanding of the business practice usually recognizing its pro-competitive virtues.  This sequence and outcome is exactly what one might expect in a world where economists’ career incentives skew in favor of generating models that demonstrate inefficiencies and debunk the economics status quo, while defendants engaged in business practices that have evolved over time through trial and error have a difficult time articulating a justification that fits one of a court’s checklist of acceptable answers.  In the words of Nobel economist Ronald Coase,

[i]f an economist finds something—a business practice of one sort or another—that he does not understand, he looks for a monopoly explanation.  And as in this field we are rather ignorant, the number of un-understandable practices tends to be rather large, and the reliance on monopoly explanations frequent.”

From an error-cost perspective, the critical point is that antitrust scrutiny of innovation and innovative business practices is likely to be biased in the direction of assigning higher likelihood that a given practice is anticompetitive than the subsequent literature and evidence will ultimately suggest is reasonable or accurate.

I look forward to mixing it up again with Scott Cleland.  Last time we met it was over similar issues (specifically revolving around Google), and the audio of that event is available here.

Filed under: antitrust, google, international center for law & economics, law and economics, privacy, technology Tagged: antitrust, Competition law, Federal Trade Commission, ftc, google, Industrial organization, United States House Committee on the Judiciary