Tech Policy Podcast 393: Herbert Hovenkamp on the State of Antitrust Law
Dec 17, 2024
Herbert Hovenkamp is a leading expert in antitrust law, teaching at Penn Law and Wharton. He shares insights on the progressive antitrust movement and the government's aggressive stance on Big Tech. The conversation highlights the 2023 Merger Guidelines and critiques the reliance on outdated legal doctrines. Hovenkamp also delves into iconic antitrust cases like Microsoft's and the historical AT&T breakup, emphasizing the impact on innovation. His forward-thinking approach advocates for a balanced enforcement strategy in today's tech landscape.
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Neo-Brandeisian Antitrust: A Reactionary Movement
- The neo-Brandeisian antitrust movement, while initially forward-looking, has become reactionary, focusing on past doctrines like the Brown Shoe case.
- This approach hinders progress by clinging to outdated precedents instead of embracing fresh empirical study.
Brown Shoe's Flawed Market Definition
- The Brown Shoe case's market definition factors are flawed, often misinterpreting market dynamics.
- For example, it wrongly suggests that specialized vendors indicate a relevant market, when they're more likely to sell complements than substitutes.
Consumer Welfare Standard: A Historical Focus on Competition
- The consumer welfare standard in antitrust, despite its name, has historically focused on promoting competition.
- Courts have consistently targeted high prices, reduced output, and restrained innovation as the core issues since the Sherman Act.