Structuring Digital Platform Markets : Antitrust and Utilities’ Convergence

The regulation of digital platforms is frequently framed as a legal and institutional trade-off. Should policy makers “regulate” or should they “break-up” Big Tech? Should they decentralize digital power or should they transform companies like Google into accountable bottlenecks? These dichotomies reflect an impoverished – and deregulatory – understanding of the scope of antitrust law and the nature of regulation in the digital economy. Antitrust, which includes remedies such as break-ups, is conceived as a body of law which acts marginally to preserve pre-legal and decentralized market processes. Utilities and other regulatory schemes are viewed as rigid modes of intervention in production that interfere with free competition and limit consumer choice and innovation. The polarity between antitrust and regulation obscures a more nuanced reality where decentralizing and centralizing efforts, which structure and enable digital markets, overlap across legal domains. The Article defends a conceptual move away from disciplinary siloes and discontinuous remedial solutions and toward a joint approach to law in digital ecosystems. In practice, antitrust and regulatory law are converging in a new way. Antitrust cases are increasingly sensitive to the gatekeeping power of platform intermediaries and digital market regulation is becoming consciously procompetitive. As such, conventional justifications for the distinction between antitrust and regulation, e.g. the preference for underenforcement and ex-post intervention, are weakening. Antitrust is but one branch of law that structures and enables competition. Regulation does not undermine but instead can promote competition, innovation and consumer choice. Relying on the case of Google and its regulation between 1998 and 2022, the Article situates antitrust and public utility efforts as part of a spectrum of coextensive regulatory approaches to digital markets. It configures the space of regulatory possibility across ex ante and ex post, centralizing and decentralizing strategies. Its aim is to guide a move away from siloed or a-contextual efficiency or deregulatory justifications and toward situated legal-regulatory decisions about the collective needs and choices that markets like search or online advertising can advance. The digital platform economy is a place to begin experimenting with new ways for law to structure production in line with the public interest. The question is not whether to break-up or regulate Big Tech, it is what forms of competition, innovation and choice are needed in a digital society