TPRC53 Antitrust Stack

Transcript

1. The Antitrust Stack A Computational Analysis of Lina Khan’s Legacy TPRC53 1 Sean Norick Long | September 20, 2025
2. TPRC53 2 Framework 02 Descriptive 03 Normative 01
3. TPRC53 3 My Question to You How can computational tools reveal the subtle patterns in judicial reasoning that experts usually see by experience?
4. Motivation TPRC53 4 “There can hardly be any question that the discretion delegated to the courts by the Sherman Act was that of determining the consumer interest in particular cases....” “Congress wrote the antitrust laws to create checks and balances … to protect us from concentrations of economic power.” Robert Bork “Legislative Intent and the Policy of the Sherman Act” 1966 Lina Khan Remarks to Harvard Center for Labor and a Just Economy 2024
5. Tech Antitrust Infrastructure Servers, cloud storage Academic discourse, public statements Intermediate Processes Algorithms, data processing Soft law, enforcement actions Outcomes User-facing applications Binding judicial decisions The “Stack” TPRC53 5
6. TPRC53 6 Speeches by FTC Leadership, 1915–2023 Bernardo Mueller, The Arc of Antitrust: A Text-based Measure of Antitrust Policy Beliefs and Attitudes, 4 Stan. Computational Antitrust 107, 128 (2024). “The Arc of Antitrust”
7. TPRC53 7 Trend of Relative Word Frequencies in FTC Chair Speeches
8. Speaker Average NB Score Mentions Per Speech N1 N2 N3 N4 N5 N6 N7 Luke M. Froeb 0.34 6.31 analysis income effects model merger antitrust role Lina M. Khan 0.57 2.27 new power markets liberty coercion american people TPRC53 8 Most Common Neighbor Words to “Economic” in FTC Speeches
9. TPRC53 9 Distribution of FTC Speech Scores Since 1915
10. Sentence-Level Ideological Shift in the 2023 Guidelines TPRC53 10
11. TPRC53 11 “This Note argues that the current framework in antitrust— specifically its pegging competition to “consumer welfare,” defined as short-term price effects—is unequipped to capture the architecture of market power in the modern economy. We cannot cognize the potential harms to competition posed by Amazon’s dominance if we measure competition primarily through price and output.” Lina Khan “Amazon’s Antitrust Paradox” Lina M. Khan, Note, Amazon’s Antitrust Paradox, 126 Yale L.J. 710, 710 (2017).
12. Price- focused (%) Structure- focused (%) Hybrid (%) Amazon 25.0 41.4 7.5 Facebook 1.2 58.8 1.2 Microsoft 1.3 79.2 2.5 Structure vs. Price Paragraphs Across Technology Complaints TPRC53 12 Note: Purple for structure-focused, red for price-focused, and green for “hybrid”
13. TPRC53 13 “Gateway executive James Von Holle testified that Gateway had to install Windows because ‘We don't have a choice.’ (J. Von Holle Tr. 37-41; GW 26521-27). Mr. Von Holle has testified that if there were competition to Windows he believed such competition ‘would drive prices lower’ and promote innovation.” Complaint ¶ 59, United States v. Microsoft Corp, No. 98-1232 (D.D.C., May 18, 1998). Microsoft Complaint By suppressing, neutralizing, and deterring the emergence and growth of personal social networking rivals, Facebook also suppresses meaningful competition for the sale of advertising . . . . By monopolizing personal social networking, Facebook thereby also deprives advertisers of the benefits of competition, such as lower advertising prices . . . .” Complaint ¶¶ 9, 167, Fed. Trade Comm’n v. Facebook, Inc., No. 1:20-cv-03590 (D.D.C. Jan. 13, 2021). Facebook Complaint
14. TPRC53 14 This is an action under Sections 1 and 2 of the Sherman Act to restrain anticompetitive conduct by defendant Microsoft Corporation ("Microsoft"), the world's largest supplier of computer software for personal computers ("PCs"), and to remedy the effects of its past unlawful conduct. Complaint ¶ 1, United States v. Microsoft Corp, No. 98-1232 (D.D.C., May 18, 1998). Microsoft Complaint Facebook is the world’s dominant online social network.... Facebook has maintained its monopoly position by buying up companies that present competitive threats and by imposing restrictive policies that unjustifiably hinder actual or potential rivals that Facebook does not or cannot acquire. Complaint ¶ 1, Fed. Trade Comm’n v. Facebook, Inc., No. 1:20-cv-03590 (D.D.C. Jan. 13, 2021). Facebook Complaint The early days of online trade were bursting with possibility. Competition flourished. A newly connected nation saw a wide-open frontier where anyone with a good idea would have a fair shot at success. Complaint ¶ 1, Fed. Trade Comm’n v. Amazon.com, Inc., No. 23-cv-01495 (W.D. Wash Sept. 26, 2023). Amazon Complaint
15. Complaint Mean Amazon 39.2 Facebook 33.2 Microsoft 28.7 Speaking Complaints: Readability Scores in Technology Complaints TPRC53 15 Amazon vs. Microsoft (P-value): 0.000 Facebook vs. Microsoft (P-value): 0.041 Note: Greener tones indicate higher readability for that paragraph
16. Hard Law TPRC53 16 “Although the inclusion of workers in the 2023 Merger Guidelines is new, the concept of antitrust protections that extend to workers, not just consumers, is not.” Judge Adrienne Nelson December 10, 2024 U.S. District Court, District of Oregon FTC v. Kroger Co. Fed. Trade Comm’n v. Kroger Co., No. 3:24-cv-00347-AN, slip op. at 55 (D. Or. Dec. 10, 2024).
17. Why Care? TPRC53 17
18. TPRC53 18 Confirm 02 Surprise 03 Benchmark 01 Benefits
19. TPRC53 19 Speaking Complaints: Readability Scores in Technology Complaints Confirm
20. TPRC53 20 Structure vs. Price Paragraphs Across Technology Complaints Surprise
21. TPRC53 21 Benchmark
22. TPRC53 22 Prompt Sensitivity 02 Errors and Hallucinations 03 Reproducability across Models 01 Limitations
23. TPRC53 23
24. TPRC53 24 Prompt Sensitivity 02 Errors and Hallucinations 03 Reproducability across Models 01 Limitations
25. TPRC53 25 Conclusion Across FTC speeches, the word “worker” surpassed “consumer” in relative importance “Power” and “liberty” replaced “analysis” and “income” as co- occurring words with “economic” The FTC’s Amazon complaint blends structure and price arguments, and is written for judicial and public consumption
26. TPRC53 26 Thank You & Closing Question How can computational tools reveal the subtle patterns in judicial reasoning that experts usually see by experience?
27. TPRC53 APPENDIX Remarks by Chair Lina Khan Harvard Center for Labor and a Just Economy February 21, 2024 “The FTC is not traditionally thought of as an agency that shapes workers’ rights, but .... Since stepping into the role of Chair, I have been reminded, over and over, of the ways that the FTC’s decisions deeply and directly affect the well-being of people who work for a living.”
28. Neo-Brandeisian Text — Score: 0.575 If we will not endure a king as a political power we should not endure a king over the production, transportation and sale of any of the necessaries of life. TPRC53 APPENDIX
29. Chicago School Text — Score: 0.429 The law of selfishness, uncontrolled by competition, compels it to disregard the interest of the consumer. TPRC53 APPENDIX
30. Soft Law: Merger Guidelines TPRC53 APPENDIX “...the primary role of Section 7 enforcement is to preserve and promote market structures conducive to competition.” “Market structure is the focus of the Department’s merger policy chiefly because the conduct of the individual firms in a market tends to be controlled by the structure of that market...” 1968 “The unifying theme of the Guidelines is that mergers should not be permitted to create or enhance ‘market power’ or to facilitate its exercise.” “This ability of one or more firms profitably to maintain prices above competitive levels for a significant period of time is termed ‘market power.’” 1982