The Shift Away from Structural Remedies.Denial of Access and the Essential Facilities Doctrine.Contemporary Antitrust’s Treatment of Vertical Integration.Evolving Approaches to Restricting Business Lines.LEGAL SCRUTINY OF VERTICAL INTEGRATION BY DOMINANT NETWORKS.Innovation and Platform Design Principles.Are Dominant Digital Platforms Stifling Innovation?.Effects of Discrimination and Appropriation on Investment and Innovation. Facebook’s Publishing Network/Facebook Ads.INTEGRATION BY DOMINANT DIGITAL PLATFORMS.Many thanks to Jeremy Patashnik and the Columbia Law Review for exceptional editorial support. For generous conversations and insightful feedback, I am deeply grateful to Shah Ali, Rebecca Haw Allensworth, David Balan, Commissioner Rohit Chopra, Joshua Fischman, Jeffrey Gordon, David Grewal, Michael Guttentag, Scott Hemphill, Robert Hockett, Jen Howard, Sally Hubbard, Ted Janger, Richard John, Kathryn Judge, Amy Kapczynski, Al Klevorick, William Kovacic, Mark Lemley, Christopher Leonard, Christopher Leslie, Zachary Liscow, Barry Lynn, Jonathan Macey, Daniel Markovits, Doug Melamed, Urja Mittal, Stacy Mitchell, John Morley, Thomas Nachbar, Saule Omarova, Matt Panhans, Frank Pasquale, David Pozen, George Priest, Sabeel Rahman, Blake Reid, Daria Roithmayr, Hal Singer, Ganesh Sitaraman, Dina Srinivasan, Marshall Steinbaum, Matt Stoller, Maurice Stucke, Olivier Sylvain, Zephyr Teachout, Sandeep Vaheesan, Barbara van Schewick, and Tim Wu, as well as participants in Vanderbilt Law School’s “The New Infrastructure” roundtable, the Competition, Antitrust Law and Innovation Forum at UC–Irvine, and workshops at Boston College, Brooklyn, Cardozo, Columbia, Cornell, Loyola L.A., University of Michigan, Stanford, Texas A&M, UCLA, University of Southern California–Gould, University of Virginia, and Yale law schools. Recalling this broader set of concerns brings into focus the range of factors at stake when dealing with dominant intermediaries and invites consideration of the degree to which separations in platform markets would also respond to a diverse set of problems. Tracing the history of separations reveals that they have been motivated by a host of functional goals, ranging from fair competition and system resiliency to media diversity and administrability. This Article seeks to give structural separations a seat back at the table. Neglecting structural remedies results in both substantive harms and institutional misalignments-effects that are especially pronounced in digital platform markets. And when antitrust enforcers have targeted these forms of conduct and structures, they have applied remedies that generally (1) fail to target the underlying source of the problem and (2) overwhelm the institutional capacities of the actors assigned to oversee them. At the same time that lawmakers have weakened or eliminated sector-specific regulatory regimes, judicial interpretation of antitrust law has drastically narrowed the forms of vertical conduct and structures that register as anticompetitive. Previously implemented both as a standard regulatory intervention and key antitrust remedy in network industries, structural separations have been largely abandoned. Separations regimes limit the lines of business in which a firm can engage, either by proscribing entry in certain markets or by requiring that distinct lines of business be operated through separate affiliates. This Article argues that the potential hazards of integration by dominant tech platforms invite recovering structural separations. This structure places dominant platforms in direct competition with some of the businesses that depend on them, creating a conflict of interest that platforms can exploit to further entrench their dominance, thwart competition, and stifle innovation. One feature dominant digital platforms share is that they have integrated across business lines such that they both operate a platform and market their own goods and services on it. By structuring access to markets, these firms function as gatekeepers for billions of dollars in economic activity. A handful of digital platforms mediate a growing share of online commerce and communications.
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