Peter O'Loughlin (University of Oxford, Faculty of Law) has posted Cognitive Foreclosure (Georgia State University Law Review, Forthcoming 2022) on SSRN. Here is the abstract:
Digital markets now fundamentally intertwine with our social and economic lives. International enforcement actions, the US and EU Google cases in particular, demonstrate how from a behavioural economic perspective digital platforms may be beginning to implicate antitrust’s two most fundamental doctrinal components—conduct and market power—in nuanced ways. In short, the regulatory and policy landscape showcases that we may be moving closer towards an antitrust world whereby firms can manipulate consumers’ psychological shortcomings to foreclose competition – a new form of nefarious conduct that might appropriately be termed “cognitive foreclosure”. Yet as a demand-side market failure, one should be cautious about categorising behavioural market failures as antitrust issues. The behavioural deviation from perfect competition, then, would need to be “substantial” and “sustainable” if such market failures are to justifiably attract antitrust scrutiny.
Recommended.
