Lina Khan, danes 29-letna pravnica, je lani še kot neznana doktorska študentka razburkala pravniški establishment z razpravo “Amazon’s Antitrust Paradox”, ki je na glavo obrnila skoraj pol stoletja trajajočo doktrino glede pravne regulacije monopolov. Medtem ko je ameriška zakonodaja po začetku 20. stoletja in začetku velikega boja vladnih administracij proti monopolom Rockefellerjev in drugih roparskih baronov slonela na premisah absolutne škodljivosti monopolov, je – tudi po veliki zaslugi čikaške pravne šole – v 1970-letih prišlo do preobrata: na problematiko monopolov se je začelo gledati skozi prizmo maksimizacije koristi za potrošnike. Po domače rečeno, monopoli niso nujno slabi, če monopolisti zagotavljajo najnižje stroške (cene) za potrošnike.
Ta pristop je seveda kratkoviden, saj lahko monopolisti s cenovno vojno ne samo izrinejo konkurente, pač pa lahko vplivajo na drugačno dinamiko razvoja panoge, z manj razvoja in manj inovacijami. Lahko pa s svojim prevladujočim položajem tudi negativno vplivajo na ponudnike iz drugih panog, če so ti prisiljeni uporabljati njihovo infrastrukturo, in celo na ostale trge (denimo trg dela). In Khanova je na primeru Amazona pokazala natanko to: res je Amazon danes najbolj učinkovit spletni prodajalec, toda s svojim prevladujočim položajem lahko omejuje prodajo mnogim drugim ponudnikom na Amazonovi infrastrukturi, na trgu dela pa drži delovne razmere in plače pod civilizacijskimi normami.
Khanova je s tem prizadela ego kompradorskega pravniškega establishmenta, ki se je temu ustrezno tudi odzval z omaloževanjem njenega vidika problema. Toda Khanova je dobila vabilo k sodelovanju v vplivni Federal Trade Commission, ki lahko spremeni pravila regulacije monopolov.
If competitors tremble at Amazon’s ambitions, consumers are mostly delighted by its speedy delivery and low prices. They stream its Oscar-winning movies and clamor for the company to build a second headquarters in their hometowns. Few of Amazon’s customers, it is safe to say, spend much time thinking they need to be protected from it.
But then, until recently, no one worried about Facebook, Google or Twitter either. Now politicians, the media, academics and regulators are kicking around ideas that would, metaphorically or literally, cut them down to size. Members of Congress grilled social media executives on Wednesday in yet another round of hearings on Capitol Hill. Not since the Department of Justice took on Microsoft in the mid-1990s has Big Tech been scrutinized like this.
Amazon has more revenue than Facebook, Google and Twitter put together, but it has largely escaped sustained examination. That is beginning to change, and one significant reason is Ms. Khan. In early 2017, when she was an unknown law student, Ms. Khan published “Amazon’s Antitrust Paradox” in the Yale Law Journal. Her argument went against a consensus in antitrust circles that dates back to the 1970s — the moment when regulation was redefined to focus on consumer welfare, which is to say price. Since Amazon is renowned for its cut-rate deals, it would seem safe from federal intervention.
Ms. Khan disagreed. Over 93 heavily footnoted pages, she presented the case that the company should not get a pass on anticompetitive behavior just because it makes customers happy. Once-robust monopoly laws have been marginalized, Ms. Khan wrote, and consequently Amazon is amassing structural power that lets it exert increasing control over many parts of the economy.
Amazon has so much data on so many customers, it is so willing to forgo profits, it is so aggressive and has so many advantages from its shipping and warehouse infrastructure that it exerts an influence much broader than its market share. It resembles the all-powerful railroads of the Progressive Era, Ms. Khan wrote: “The thousands of retailers and independent businesses that must ride Amazon’s rails to reach market are increasingly dependent on their biggest competitor.”
The paper got 146,255 hits, a runaway best-seller in the world of legal treatises. That popularity has rocked the antitrust establishment, and is making an unlikely celebrity of Ms. Khan in the corridors of Washington.
She has her own critics now: Several leading scholars have found fault with Ms. Khan’s proposals to revive and expand antitrust, and some have tried to dismiss her paper with the mocking label “Hipster Antitrust.” Unwilling or perhaps unable to accept that a woman wrote a breakthrough legal text, they keep talking about bearded dudes.
“As consumers, as users, we love these tech companies,” she said. “But as citizens, as workers, and as entrepreneurs, we recognize that their power is troubling. We need a new framework, a new vocabulary for how to assess and address their dominance.”
At the S.M.U. library in Dallas, Ms. Khan was finding that vocabulary. These dead books, many from an era that predated the price-based era of monopoly law, were an influence and an inspiration. She was planning to expand her essay into a book, she said in an interview here in June.
Then her life shifted, and she abruptly went from an outsider proposing reform to an insider formulating policy. Rohit Chopra, a new Democratic commissioner at the Federal Trade Commission, pulled her in as a temporary adviser in July, at a time when urgent questions about privacy, data, competition and antitrust were suddenly in the air. The F.T.C. is holding a series of hearings this fall, the first of their type since 1995, on whether a changing economy requires changing enforcement attitudes.
The hearings will begin on Sept. 13 at Georgetown University Law Center. Two panels will debate whether antitrust should keep its narrow focus or, as Ms. Khan urges, expand its range.
“Ideas and assumptions that it was heretical to question are now openly being contested,” she said. “We’re finally beginning to examine how antitrust laws, which were rooted in deep suspicion of concentrated private power, now often promote it.”
Vir: New York Times