UT Law professor advises U.S. House Judiciary Committee

The research of University of Tennessee College of Law Professor Maurice Stucke is playing a role in the U.S. House Judiciary Committee’s investigation into whether tech companies like Google, Apple, Facebook, and Amazon have too much power in the marketplace.

During a meeting last week of the of the House Judiciary Committee’s antitrust subcommittee, legislators heard testimony about online platforms and market power with a focus on how data and privacy affect competition.

Stucke and Ariel Ezrachi, co-authors of the forthcoming book “Competition Overdose,” were asked to submit a written statement for the committee’s consideration in this third hearing on the subject matter since June.

In their statement, Stucke and Ezrachi concluded, “Congress needs to act.”

“Part of the problem is an ongoing erosion of the scope and relevance of U.S. antitrust law,” the two wrote. “A series of Supreme Court decisions have emasculated antitrust under a consumer welfare standard that neither concerns citizens nor promotes their welfare.”

“We are at a risk of using a tool ill-equipped and limited in its ability to address the challenges of the digital economy and deliver on its intended promise.”

Stucke and Ezrachi also offered the following for consideration as a new enforcement approach is considered:  

– Antitrust price-centric tools don’t necessarily work well in the digital platform economy where products and services are often free or subsidized by the platform;

– Basic assumptions about the operation of markets, the likelihood of them self-correcting, and their power to disrupt are no longer valid;

– Traditional remedies (like fines and enjoining the anticompetitive behavior) are less effective than they once were because they are not imposed in a timely manner and when a remedy is imposed, it’s often too late and ineffectual;

– Attention should be given to where competition, privacy, and consumer protection policies intersect, with particular focus on theories of anticompetitive harm; and

– U.S. antitrust policymakers and enforcers should coordinate with other jurisdictions.

Stucke said he appreciates being part of a discussion that he hopes will influence privacy protections and promote autonomy.

“The Congressional hearings are building upon the findings and proposals from the academic scholarship and over 20 reports by other jurisdictions addressing the risks of these data-opolies,” Stucke said. “There is growing demand for an inclusive economy that actually protects our privacy. I believe antitrust reform and meaningful privacy legislation are needed in order to meet that demand.”