The dynamic development of artificial intelligence, the DMA and DSA with their new approach to digital markets, the dispute between proponents of the consumer welfare standard and the competitive process standard, the push for antitrust laws to also protect non-antitrust objectives such as sustainability, privacy, labor rights, or media pluralism, the tendency for stricter merger control policies and prosecution of abuses of dominance - there is no doubt that we are witnessing revolutionary changes in antitrust policy. Most of these developments can be attributed to the march of the neo-Brandeis movement (a.k.a. hipster antitrust) in antitrust economics. The movement takes its name from Louis Brandeis, a U.S. Supreme Court justice from the early 20th century. He believed that concentration of market power was dangerous for economic, political, and social reasons (The Curse of Bigness), and that antitrust law should not be limited to short-sighted concern for price levels for consumers alone. Instead, it should seek to improve the market structures to redress income inequality, safeguard consumer rights, or protect societies from unemployment.
But what if, in parallel, a counter-revolution is already brewing, which will impose a radical new way of thinking about the nature of competition that antitrust law is supposed to protect? And what implications might it have for antitrust policy?
We are talking here about complexity theory, which draws its conclusions about uncertainty and nonlinearity from natural sciences. Since the 1990s, it has been paving its way in both natural and social sciences, from archaeology, geography, and urban planning to cultural studies - and more recently in antitrust policy. It provides an understanding of competition that goes beyond the reductionist descriptions of markets and firms offered by both neoclassical models and their contemporary neo-Brandeis critique. It posits that current antitrust law methods are ill-suited to a complex knowledge economy, with unprecedented types and levels of increasing returns, feedback loops, and technological dynamism. Complexity economics models explore how counterintuitive macro-level outcomes of a system can emerge from simple micro-level interactions. Complexity theory can also be particularly useful in identifying and addressing the competitive challenges posed by uncertainty in the digital economy.
We will be introduced to the world of antitrust complexity by Prof. Thibault Schrepel - associate professor of law at VU Amsterdam and a member of Stanford University's CodeX Center, where he created the "Computational Antitrust" project bringing together more than 65 antitrust authorities. Prof. Schrepel also holds research and teaching positions at Université Paris 1 Panthéon-Sorbonne and Sciences Po Paris; he is an alumnus of Harvard University's Berkman Center, a member of the scientific council of the French Audiovisual and Digital Communications Regulatory Authority, and a blockchain expert appointed to the World Economic Forum and the World Bank. In 2018, he received the "Academic Excellence" Global Competition Review Award. He is the author of the world's most downloaded antitrust articles of 2018, 2019, 2020, 2021 and 2022. His latest book, "Blockchain + Antitrust," came out in September 2021.
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