United States President Joe Biden is planning to appoint antitrust scholar Lina Khan to the Federal Trade Commission, a move that would indicate that his government is open to aggressive antitrust regulations not only in general, but specifically against Amazon and other companies from Big Tech.
Washington’s rumor has publicized Khan’s name as a possible candidate for the commission since Biden won the election, and Politico said today that the White House is indeed planning to hire her for the role, which requires confirmation from the Senate. Khan is currently an associate professor of law at Columbia Law School.
Khan jumped directly into antitrust stardom in 2017, when he was still a law student, when he published his hugely successful article, “Amazon’s Antitrust Paradox”, in the Yale Law Journal.
The antitrust law, as we explained, is not just about monopolies, but about market power. In short: being the largest company in an industry is good, but hurting consumers or competitors to become and stay that way is not.
Since about the beginning of the Reagan administration, federal antitrust regulators have largely adhered to a theory of competition law called the Chicago School, which has a more restricted view of antitrust enforcement than previous schools of thought. At a very high level, Chicago School supporters tend to think of competition and mergers in terms of price controls. Basically, if you control a market, you can extort buyers; therefore, competition is necessary to manage prices. Likewise, if consumer prices are not rising, competition should also be fine.
In “Amazon’s Antitrust Paradox,” Khan argued that using consumer prices as the primary benchmark for determining whether a company or merger is anti-competitive is not enough and that Amazon’s size and scale make it anti-competitive. “Specifically,” she wrote abstractly, “current doctrine underestimates the risk of predatory pricing and how the integration between different business lines can be anti-competitive.”
His work made a huge impact. FTC commissioner Rohit Chopra, a Democrat, sought her out as an adviser in 2018, when the commission was initiating a review of antitrust enforcement. “It is rare to find a legal prodigy like Lina Khan,” Chopra told The New York Times in 2018. “Nothing about his career is typical. You don’t see many law students publishing innovative legal research or research that has such a profound impact so quickly. . “
Critics, on the other hand, have dubbed their theories “modern antitrust”.
During 2019 and 2020, Khan served as one of the members of the House subcommittee team who compiled a highly successful report investigating Big Tech’s antitrust implications. After 16 months of hearings, surveys and analysis, the committee determined last fall that Amazon, Apple, Facebook and Google were, in some way, violating competition law and needed to be controlled.
The news that the White House plans to appoint Khan comes just days after the government announced it would hire Tim Wu as a special advisor on technology and competition policy. Wu also has a solid background in antitrust analysis. His most recent book, 2018’s The Curse of Bigness, argued that the unbridled concentration of the market was leading to a new Golden Age and all the problems that accompany it.
The FTC has already filed a lawsuit to dismember Facebook and is reported to have been investigating Amazon for almost two years. Khan’s appointment would be a likely indication that the agency would be more, not less, likely to act in the coming months.