Hipster Antitrust Movement: What Is the Purpose of Antitrust Law?

Should companies like Amazon, Apple, Facebook and Google be free from antitrust scrutiny merely because their business practices cannot be shown to result in higher prices for consumers?

The Bradley Law Firm‘s award-winning Declassified blog, a premier source of information about class actions, recently examined this conflict in an article by Charles Elder entitled “Hipster Antitrust” Movement Takes Center Stage in Congress.

The article focuses on a recent Judiciary Committee hearing in which representatives questioned CEOs from Amazon, Apple, Facebook and Google about allegedly anticompetitive business practices. The hearing was prompted by a 2017 Yale Law Journal article by Lina Khan, which gave rise to what became known informally as the “hipster antitrust” movement:

Since the Reagan administration, the development of antitrust law has focused on consumer welfare – typically indicated by low prices – to determine whether competition had been harmed unlawfully. This development was based on then-professor (and later judge) Robert Bork’s influential book, The Antitrust Paradox, and the libertarian “Chicago school” of economics. If prices stay low and customers are happy, then courts are typically reluctant to find any antitrust violation. If the complaining party was a competitor whose business was harmed, it is often met with the response that the antitrust laws exist to protect competition, not individual competitors.

More recently, scholars such as Khan have argued that this historical view is too narrow, and they advocate for a broader focus on market structure and the power and influence large tech companies wield. They argue that, rather than merely analyzing whether corporate actions result in lower consumer prices, the law should recognize that the excessive concentration of economic power in a handful of large companies is inherently bad, because it exacerbates other ills, such as income inequality and labor abuses, and gives undue political influence to too few people. Khan’s article was specifically about Amazon, a company that famously offers low prices on a wide variety of consumer goods and that has for the most part been well-liked by customers, but which, she argued, exerts a dangerous amount of power to effectively control the online retail economy.

The answer to this question is critical to the future of the Internet. Elder concludes that it’s unlikely that the largest Internet companies will be broken up because they are popular with users.

I tend to agree, but at the same time I think it’s a mistake to underestimate the potential for change. The attacks on these Internet giants are motivated in large part by bipartisan displeasure at their power and how it impacts the national political scene.

Notes on Use of Lawyer Use of Blog Format

This article is a great illustration of how lawyers with little technical expertise can use blogs to promote themselves and their law practice.

Declassified also illustrates the benefits of a team approach. In addition to Elder’s excellent article, it featured recent high quality articles by Jeffrey R. BlackwoodKristina Allen RelifordJ. Thomas RichieDylan C. Black & Richard W.F. Swor.

Finally, the Bradley firm’s website illustrates one of the biggest blog advantages: They tend to attract backlinks, one of the best methods of improving SEO (Search Engine Optimization). In other words, backlinks tend to cause websites to rank higher in Google ratings.

After all, I would most likely never have seen this article, let alone written about it and linked to it, if it had not been published in the blog format.

Many vendors can provide blogs, some very inexpensively, but the legal industry focus of Lexblog (founded by the estimable Kevin O’Keefe, himself author of the Real Lawyers blog) makes it one of the best choices for lawyers.

Self-Publishing by Lawyers

Disintermediation, or cutting out the middleman, is a key effect of the Internet, a disaster for some, an opportunity for others. Uber inserts itself between prospective passengers and conventional cabs. “Cordcutters” bundle antennas and streaming services to avoid TV cable companies. Some lawyers are considering cutting the cord from traditional legal research services.

Dennis Kennedy is showing lawyer/authors a new, possibly lucrative form of disintermediation: Bypassing conventional publishers.

I’m finishing a (laudatory) review of Dennis Kennedy’s new book Successful Innovation Outcomes in Law: A Practical Guide for Law Firms, Law Departments and Other Legal Organizations. I was impressed by the fact that Dennis does not merely talk innovation: He does innovation.

Rather than go with a conventional book publisher, Kennedy self-published the book, working through Amazon Kindle Direct Publishing (includes option for on-demand paperback publishing as well as eBook).

I used to think of “vanity press” condescendingly, as primarily for authors whose work was not good enough to interest a “real” publisher. This book has changed my attitude. There are multiple advantages to self-publishing, including speedier development and reducing the cost to purchasers.

Kennedy is in a better position to self-publish than most authors. Having a respected third party (in this case, an established conventional publisher) select a book for publication serves a sort of credentialing function, “validating” the book for potential readers. Kennedy’s track record as a recognized expert and author allows him to “self-validate.”

Dennis found the results of self-publishing so beneficial that he explained in an interview posted at his podcast, the Kennedy-Mighell Report that the odds are 95% that he will self-publish his next book. 

Self-publishing looks like an increasingly attractive option for lawyer authors.