So, who do you think is going to come out on top in the Final Four? I’m not asking about the N.C.A.A. March Madness basketball tournament. I’m asking about the federal government’s antitrust lawsuits against Amazon, Apple, Facebook’s parent Meta, and Google. The most recent entry in the Final Four is Apple, which the Department of Justice sued last week.
Daniel Crane, a University of Michigan law professor, informally asked about 50 of his peers at law schools around the country which of the four companies is most likely to win against the government. He got 19 responses.
Amazon came out on top, followed by Apple, Meta, Facebook’s parent company, and in last place Google. To put it differently, the law professors felt that the government’s antitrust arguments against Amazon are the weakest and its arguments against Google are the strongest.
Crane wrote up his results in a post for a joint blog of the Yale Journal of Regulation and the American Bar Association’s section of administrative law and regulatory practice. He wrote that all of the respondents are “people I would consider distinguished in the field, fair minded, and highly knowledgeable,” and that they span the ideological spectrum of antitrust profs. But he admitted that it “certainly was not a scientific study.”
There are multiple government and private actions against each of the four companies. To keep things simple for the informal survey, Crane grouped them into five buckets: Google search, Google’s ad technology, Meta/Facebook, Amazon and Apple.
In color commentary, the professors — to whom Crane promised anonymity — ranged from calling all four cases manure, or a phrase to that effect, to writing that “each tells a powerful story of a monopolist fighting hard to maintain market power.”
“Google is the consensus choice for the strongest government case; Amazon is the consensus choice for the weakest government case,” Crane wrote. “Indeed, not a single respondent ranked Amazon the strongest government case, and only one ranked Google the weakest.”
That makes sense to me. As Eleanor Fox, an antitrust expert at New York University School of Law, told me, the first thing the government needs to establish is that the defendant is, indeed, a monopolist. Only then can it turn to proving anticompetitive behavior. All four companies have taken actions that could be deemed anticompetitive, but it’s only Google that clearly crosses the threshold of being a monopolist — in its case, in terms of market share in online search and advertising. Amazon is huge but a monopolist? Harder to see.