Imagine you’re Lina Khan.
In January 2017, you wrote an influential article for the Yale Law Journal titled “Amazon’s Antitrust Paradox,” in which you argued that the current framework in antitrust “is unequipped to capture the architecture of market power in the modern economy.”
You wrote: “We cannot cognize the potential harms to competition posed by Amazon’s dominance if we measure competition primarily through price and output” — which is precisely how market power is now measured. You concluded your article with a series of ways antitrust should be rethought to curb the dominance of Amazon.com Inc. and other “platform companies” like Alphabet Inc.’s Google and Facebook Inc.
“Amazon’s Antitrust Paradox” could not have been better timed. Google was facing antitrust challenges in Europe. Facebook would soon be embroiled in the Russian election scandal. Amazon was preparing to jump into the grocery business, the pharmacy business, and who knows what else. Its dominance was scaring more than just internet companies. People were talking about whether the major platform companies needed to be regulated or maybe even broken up….
…Khan wouldn’t talk about Amazon for this column, but I did speak to some of her colleagues at the Open Market Institute, where she is the director of legal policy. Phil Longman, the institute’s policy director, told me that he feared the legitimate rationale for taking antitrust action against Amazon might well be lost if it became a Trump piñata. “If Trump is going to declare war on Amazon, progressives will rally around it,” he said — even though progressives are the natural allies of tougher antitrust enforcement. “It’s really dangerous that people will come to the defense of anything that Trump is against,” he added.
The rule of law is such a bedrock principle in the U.S. Until Trump came along, it was part of the air we breathed and the water we drank — we barely ever had to think about it. Trying to involve himself in antitrust decisions is one of a hundred ways this president is eroding our faith in the rule of law. Not knowing if we can count on it is disorienting. It makes it difficult to even have a discussion about Amazon’s dominance because of the fear that any such discussion will be hijacked and corrupted by the president.
“The key question is, if the government does go after Amazon do these tweets matter?” said Barry Lynn, the director of the Open Markets Institute. The answer: “Yes.”