Issue no. 29: Amazon and the FTC
Trust-busting in the Modern Era has left a lot to be desired...
Well, that’s the third company I own, out of 6, that has been sued by the US government this year. It’s antitrust this time, so at least Uncle Sam agrees with me that Amazon has a phenomenal business franchise.
To be clear, the FTC’s decision to pursue antitrust litigation against Amazon is an egregious waste of taxpayer resources. This is true not only for the very shaky legal grounds that the complaint has been made on, but also because Amazon itself is the largest investor in American infrastructure outside of the government. Needlessly hamstringing a national champion was something that China was rightly decried for last year - now here we are with the US regulator trying it’s own hand at hamfisted market intervention.
Thankfully, we can take solace in a couple of things. Firstly, FTC Chair Lina Kahn and the FTC have proved to be remarkably ineffective against the large technology mega-corporations. Kahn currently has an unblemished record when it comes to losing antitrust cases in this context (so far anyways). I suspect this is in part because she is no practitioner. Like many of the other overtly political appointments in the federal bureaucracy, Kahn is a lifelong academic. The other, more substantive, reason is simply that the FTC is attempting to re-purpose long standing statutes to ‘combat’ the modern ultra-scaled technology conglomerate.
The executive arm is trying, and failing, to answer a question that should be asked in Congress. This has been Kahn’s critical failing; the FTC under her leadership has been attempting to influence the court to re-imagine long held antitrust doctrines. The understanding held by successive courts since the late 1970’s has seen little judicial innovation. It’s not that many don’t sympathise with the administration’s aims, it’s simply that this is a political issue, not a legal one.
It has been a common refrain to defend Amazon with reference to the consumer surplus they have created. These arguments are naturally compelling but need to be put aside for the time being. Onto the complaint….
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