IN 2017, A 27-year-old Yale Law School student published an article arguing that the online retailer Amazon had grown so large that federal regulators should treat it as inherently suspect. Amazon, the paper said, engaged in a wide variety of harmful anticompetitive practices. The article did not merely demand far greater federal oversight of the company; it called for a complete overhaul of how regulators approach antitrust, urging more frequent, more aggressive legal action founded on a generalized antagonism toward large companies and corporate mergers.
At the time, the view was relatively novel, with few adherents in government or the academy. But today that former student, now 34, leads the Federal Trade Commission (FTC), and both the agency specifically and the Biden administration more generally are pursuing a concrete version of her antagonistic agenda.
That student was Lina Khan, and her swift ascendance from young academic with a dream to bureaucrat with real power showcases some rapid political and intellectual shifts that have taken place over the last few years. Not only did Khan take command of a major regulatory agency, but the Biden administration found plum spots for fellow antitrust revisionists such as the Columbia Law School professor Tim Wu, who became special assistant to the president for technology and competition policy, and the attorney Jonathan Kanter, who was installed in the antitrust division of the Department of Justice (DOJ). Beyond the White House, politicians on both the left and the right have embraced versions of these theories—and called for applying them to a swath of increasingly large, increasingly successful technology companies.
The new antitrust movements went by many names: “new structuralism,” “neo-Brandeisianism,” or, among critics, “hipster antitrust.” Their rise coincided with a slew of legal actions and investigations against Big Tech companies, such as Facebook, Microsoft, and Amazon—including, in June, a major lawsuit accusing the latter of tricking people into enrolling in its Prime subscription service and deliberately making the cancellation process difficult.
What had started as a boutique intellectual movement built on law school journal articles had quickly become an influential component of the national policy-making apparatus.
But then something happened: Even as the new antitrust movement gained power—and flexed it—its efforts flailed. Public support fizzled or failed to appear entirely, and the movement’s fundamental premises have fallen apart, wrecked by dynamism, jurisprudence, and political expediency. Meanwhile, the worst of the antitrust alarmism keeps proving untrue, as tech companies believed by some to be unassailable “monopolies” instead lose users, market share, and prestige.
If the past half decade has seen a war over the future of anti-trust law, it’s too soon for any side to declare victory. But there are signs of hope that we will emerge with a form of antitrust that is more market-friendly and consumer-focused, less open to use—and abuse—by central planners who want to pick winners and losers in the economy and regulate even the most minute facets of business operations and commerce.
