The Utah Statement: Reviving Antimonopoly Traditions for the Era of Big Tech
Over the last several years, a movement to revive the anti-monopoly traditions of the United States has gained increasing momentum and even retaken its place in presidential political debate. While popularly known as a movement to “break up big tech,” it is really a movement that reacts to the economic policies of the last 40 years. For we have, over that time, weakened and nearly abandoned the anti-monopoly tradition that, in various forms, has been part of the U.S. system since the Declaration of Independence and the original anti-monopoly tea-party protest. The result has been decades of economic consolidation across industries like agriculture, finance, pharmaceuticals, and telecommunications. It is a reaction also to the consolidation of tech into just a few platforms, like Google, Facebook, and Amazon.
We have been left with an economy dominated by well-protected oligopolies who maintain high profits, low levels of investment, and stagnant wages. Employers have gained disproportionate power over their workers, thanks to a weakening of labor law, declining unionization, and business models that coerce and restrict workers. The policies have also contributed to the widening gap between rich and poor, and the widespread economic dissatisfaction and anger that is a hallmark of our times.
The anti-monopoly movement is also a response to the undeniable sense that concentrated private interests have an unfairly disproportionate influence over government and Congress. The legislature regularly refuses to do what even supermajorities of citizens want, like control drug prices or provide paid maternity leave. Excessively concentrated industries, in other words, have become a threat to the basic idea of representative democracy.
The simple premise of anti-monopoly revival is that concentrated private power has become a menace, a barrier to widespread prosperity, and an indefensible division of the spoils of progress and economic security that yields human flourishing. It has sparked a wealth of new articles, books, studies and symposia. (A reading list can be found here.) And the revival movement has attracted important political adherents that cross ideological and party lines.
It is important to understand that the revival of an antimonopoly tradition is a broader project than revival of the antitrust law. While that project is a key front, a broad set of policy levers and legal interventions — including in labor law, intellectual property law, corporate law, banking law and financial regulation, and campaign finance law — can be used to structure markets and check private power in the service of anti-monopoly values.
Given the stakes, it may be no surprise to hear that the effort to revive the antimonopoly tradition has met resistance and sharp criticism — as such efforts always have. But in one area the critics have made an important point concerning antitrust revival. Those who believe in a strong revival of antitrust, and a return to its anti-monopoly roots, have a duty to specify what, exactly, they mean, in concrete, legal detail.
As a response to that criticism, the following statement was drafted over lunch by a group of participants at the “A New Future for Antitrust” conference at the University of Utah in the Fall of 2019. It followed a specific challenge from Professor Dan Crane, a prominent antitrust professor and treatise author from the University of Michigan, to declare what, exactly, were the positions taken by his co-panelists calling for antitrust revival.
In that spirit, a few of us at the conference put together an initial list of principles and proposed reforms. There are of course, healthy differences in approaches to reviving antitrust. We share this list in the spirit of promoting further conversation and view it as just one starting point in an ongoing discussion about how to reorient antitrust towards its antimonopoly roots.
The Utah Statement
(as authored by a group of participants at “A New Future for Antitrust,” Oct 25, 2019, and edited thereafter)
We believe that:
(1) Subjecting concentrated private power to democratic checks is a matter of constitutional importance;
(2) The protection of fair competition is a means to a thriving and democratic society and an instrument for both the creation of opportunity and the distribution of wealth and power;
(3) Excessive concentration of private economic power breeds antidemocratic political pressures and undermines liberties; and
(4) While antitrust is not an answer to every economic distress, it is a democratically enacted and necessary element in achieving these aims.
In reflection of these principles, we therefore call for the following reforms to current antitrust doctrine and enforcement practice:
1. Vertical coercion, vertical restraints, and vertical mergers should enjoy no presumption of benefit to the public;
2. By rule or statute, non-compete agreements should be made presumptively unlawful;
3. The Trinko doctrine of implied regulatory preemption should be overruled;
4. The Brooke Group test for predatory pricing and Weyerhaeuser test for predatory bidding should be overruled;
5. The Berkley Photo standard for establishing monopoly leveraging should be restored;
6. The essential facilities doctrine should be reinvigorated for dominant firms that deny access to critical infrastructural services;
7. Structural presumptions in merger review should be restored;
8. The LinkLine doctrine holding that price squeeze allegations fail as standalone Section 2 claims should be overruled;
9. Noerr-Pennington should be overruled and replaced by a First Amendment defense and appropriate statutory protections for workers; and
10. The Clayton Act’s worker exemption should be extended to all who labor for a living, regardless of statutory employment status, for horizontal coordination, collective bargaining, and collective action in service of either.
B. Method and Enforcement Practice
1. It is not true that “Congress designed the Sherman Act as a ‘consumer welfare prescription’”;
2. Antitrust rules should be created through case development, agency rule-making, and legislation;
3. The States, the laboratories of economic experimentation, are a critical vanguard of enforcement efforts;
4. Private enforcement is a critical complement to public enforcement;
5. The markets for labor — and in particular problems caused by labor market monopsony — should be subject to robust antitrust enforcement, and enforcers should treat business structures that restrict alternatives for or coerce working Americans as suspect;
6. The broad structural concerns expressed by Congress in its enactment of the 1950 Anti-Merger Act, including due concern for the economic and political dangers of excessive industrial concentration, should drive enforcement of Section 7 of the Clayton Act;
7. Anticompetitive conduct harming one party or class should never be justifiable by offsetting benefits to another party or class. Netting harms and benefits across markets, parties, or classes should not be a method for assessing anticompetitive effects;
8. False negatives should not be preferred over false positives, and the costs of erroneous lack of enforcement should not be discounted or assumed harmless, but given appropriate weight when making enforcement decisions;
9. Structural remedies are to be preferred;
10. Harms demonstrated by clear and convincing evidence or empirical study should never be ignored or discounted based on theories that might predict a lack of harm;
11. Clear and convincing evidence of anti-competitive intent should be taken as a presumptive evidence of harm;
12. Mergers should be subject to both prospective and retrospective analysis and enforcement practice; and
13. The determination by the antitrust agencies of relevant market definitions should receive judicial deference.