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Second, because online platforms serve as critical intermediaries, integrating across business lines positions these platforms to control the essential infrastructure on which their rivals depend.This dual role also enables a platform to exploit information collected on companies using its services to undermine them as competitors. Doing so enables us to make sense of its business strategy, illuminates anticompetitive aspects of Amazon’s structure and conduct, and underscores deficiencies in current doctrine.The Note closes by considering two potential regimes for addressing Amazon’s power: restoring traditional antitrust and competition policy principles or applying common carrier obligations and duties.I am deeply grateful to David Singh Grewal for encouraging me to pursue this project and to Barry C.Close to half of all online buyers go directly to Amazon first to search for products,14 and in 2016, the Reputation Institute named the firm the “most reputable company in America” for the third year running.15 In recent years, journalists have exposed the aggressive business tactics Amazon employs.For instance Amazon named one campaign “The Gazelle Project,” a strategy whereby Amazon would approach small publishers “the way a cheetah would a sickly gazelle.”16 This, as well as other reporting,17 drew widespread attention,18 perhaps because it offered a glimpse at the potential social costs of Amazon’s dominance.One news site captured the split sentiment by asking, “Amazon: Ponzi or Wal-Mart of the Web?”3 Sixteen years on, nobody seriously doubts that Amazon is anything but the titan of twenty-firstcentury commerce.
Under these conditions, predatory pricing becomes highly rational—even as existing doctrine treats it as irrational and therefore implausible.
2018Note that this list and similar lists for 2007 to 2010 relate primarily to medium or large retail businesses.
We do not include takeovers unless we see this as being equivalent to business failure. As we all know these days, failure is often a temporary inconvenience; we are not suggesting that these businesses no longer survive, simply that they have experienced difficulties and the people with slide rules have moved in at some time.
This Note argues that the current framework in antitrust—specifically pegging competition to “consumer welfare,” defined as short-term price effects—is unequipped to capture the architecture of market power in the modern economy.
We cannot cognize the potential harms to competition posed by Amazon’s dominance if we measure competition primarily through price and output.