US President Joe Biden is reportedly planning to nominate antitrust scholar Lina Khan to the Federal Trade Commission, a move that would indicate his administration is open to aggressive antitrust regulation not only generally but specifically against Amazon and other Big Tech firms.
The Washington rumor mill has been floating Khan’s name as a possible candidate for the commission ever since Biden won the election, and Politico reported today that the White House is indeed planning to tap her for the role, which requires Senate confirmation. At present, Khan is an associate law professor at Columbia Law School.
Khan vaulted directly to antitrust superstardom in 2017, while she was still a law student, when she published her blockbuster paper, “Amazon’s Antitrust Paradox,” in the Yale Law Journal.
Antitrust law, as we’ve explained, is not just about monopolies but rather about market power. In short: being the largest company in a sector is fine, but harming consumers or competitors to become and stay that way is not.
Since roughly the start of the Reagan administration, federal antitrust regulators have largely adhered to a theory of competition law called the Chicago School that takes a narrower view of antitrust enforcement than previous schools of thought. At a very high level, Chicago School adherents tend to think of competition and mergers in terms of price control. Basically, if you control a market, you can extort buyers; therefore, competition is required to manage prices. By the same token, if consumer prices aren’t rising, competition must therefore also be fine.
In “Amazon’s Antitrust Paradox,” Khan argued that using consumer pricing as the key benchmark for determining whether a company or a merger is anticompetitive is not sufficient and that Amazon’s size and scale make it anticompetitive. “Specifically,” she wrote in the abstract, “current doctrine underappreciates the risk of predatory pricing and how integration across distinct business lines may prove anticompetitive.”
Her work made an enormous splash. FTC Commissioner Rohit Chopra, a Democrat, sought her as an advisor in 2018, when the commission was kicking off an antitrust enforcement review. “It’s rare to come across a legal prodigy like Lina Khan,” Chopra told The New York Times in 2018. “Nothing about her career is typical. You don’t see many law students publish groundbreaking legal research, or research that had such a deep impact so quickly.”
Critics, on the other hand, dubbed her theories “hipster antitrust.”
During 2019 and 2020, Khan served as one of the House subcommittee staffers who compiled a massive, blockbuster report digging into the antitrust implications of Big Tech. After 16 months of hearings, research, and analysis, the committee determined last fall that Amazon, Apple, Facebook, and Google were all in some way breaking competition law and needed to be reined in.
The news that the White House plans to nominate Khan comes only a few days after the administration announced it was bringing on Tim Wu as a special advisor on technology and competition policy. Wu, too, has a strong background in antitrust analysis. His most recent book, 2018’s The Curse of Bigness, argued that unchecked market concentration was leading to a new Gilded Age and all the attendant problems that come with it.
The FTC has already filed a suit to break up Facebook, and it has reportedly been investigating Amazon for the better part of two years. Appointing Khan would be a likely indication the agency would be more, rather than less, likely to take action in the coming months.