Assistant Attorney General Jonathan S. Kanter spoke about his work to modernize antitrust law at a Harvard Law School event on Monday.
The discussion, titled “Changing Antitrust Strategy,” was hosted by the HLS Antitrust Association and moderated by HLS professor Einer R. Elhauge ’83. During the conversation, Kanter discussed his work at the Department of Justice to change the way the antitrust law was enforced, citing a system that was “out of touch” with current markets.
Kanter, who was confirmed to the Justice Department’s Antitrust Division in 2021 after previously working at the Federal Trade Commission and in the private sector, said the current metrics used to determine antitrust violations are “incompatible with market values.”
“What I discovered was that, in an antitrust court or agency, you are aligned with a lot of assumptions about how markets function, about how consumers react, how competitors reposition, and there is this sort of ingrained thinking and dependence on economic models, he said. “And what I saw in business was facts that are different.”
According to Kanter, antitrust courts often emphasize the importance of profitability to corporations and overlook the link between share price and the wealth of corporate executives.
“In fact, there are companies that lose money, but because of their long-term durability or other factors, their share price goes up and so the executives will make money,” Kanter said.
On Jan. 23, Kanter was involved in a Justice Department Antitrust Division complaint which alleges that Google maintains a digital advertising monopoly. During the talk, Kanter explained a decision by the body to make the Google complaint’s text more readable to the general public.
“The antitrust laws were not written for an insular community and experts. They’re written for us, the people’s law,” he said. “It’s become, in my view, too insular and too technocratic.”
Kanter also addressed increased data collection by corporations, saying data is “growing more and more important by the day.”
“The risk of tipping markets, for example, is much greater today than it has ever been because we have multi-sided markets where people who are consuming the product are really the product, not the customer,” he said.
Kanter spoke about the lack of a “real, comprehensive privacy law at the federal level” and the solutions to risks that come with large-scale information gathering.
“We hired our first ever chief technologist, we hired data scientists, not just to help us understand data as we see it, but to help teach us how these markets function so that we can investigate with better visibility into where issues might arise, Kanter said.
“This is a problem that’s gonna get worse — not better,” he added.