Thursday, February 10, 2022

Transatlantic Seminar Explores Digital Economy and Inequality

Facade detail (brick and stone) of Sterling Law Building

After prior sessions on consumer privacy and consumer financial services, the Transatlantic Seminar Series on Consumer Law, Technology, and Inequality hosted the first of two panel discussions dedicated to exploring the role of the digital economy for and in connection with inequality more broadly. 

Panelists at the Feb. 9 event were Yochai Benkler (Berkman Professor of Entrepreneurial Legal Studies at Harvard Law School, and Faculty Co-Director of the Berkman Klein Center for Internet and Society at Harvard University), Michael Kades (Director for Markets And Competition Policy at the Washington Center for Equitable Growth), Vanessa Mak (Professor, Chair In Civil Law at Leiden University), and Andreas Mundt (President of the German Bundeskartellamt, or Federal Competition Agency). Mateusz Grochowski (Max Planck Institute for Comparative and International Private Law) moderated.

Panelists began by parsing the possibilities and limitations offered by antitrust, consumer law, and other types of regulatory interventions to address concentration of market power in the digital economy. While Benkler advocated for regulation focusing on smaller producers’ market access, Mundt stressed the need for a bifurcated approach that provides broader possibilities for competitors to participate in platform markets and other digital markets and gives consumers meaningful choices about the data generated by and about them. Mak pointed out antitrust law’s role to set the general rules whereas consumer law addresses specific situations of vulnerability, at times from a much broader social justice-oriented perspective. In a similar vein, Kades highlighted that the many forms of inequality consumers and others can encounter in digital markets speak to larger policy issues that antitrust law alone may not be able to address.

Reflecting further on antitrust law’s capacity to bring about a more equal distribution of wealth, particularly in consumer markets, panelists agreed on the importance to appropriately account for the central role of data. Mundt noted data’s role as both a product and a “currency” in the digital economy. Benkler spoke about how data figures differently within the major digital market players’ respective business models. Mak emphasized the underlying view of consumers’ agency with respect to their data. Kades reflected on the limits of antitrust law to address some of the broader societal issues that form part of the criticism of concentration in digital markets, such as widespread misinformation. This point led panelists to reflect on underlying causes of inequality writ large. They had differing views about on the specific measures to be adopted, but panelists agreed a regulatory approach must go beyond antitrust and consumer law to address questions of large-scale redistribution, including at global scale. 

The conversation on digital markets and the digital economy will continue at a second panel Feb. 16. Participant biographies and registration information are now online.

The Transatlantic Seminar Series on Consumer Law, Technology, and Inequality is co-sponsored by the Yale Law School Center for Private Law, the Max Planck Institute for Comparative and International Private Law Hamburg, Jagiellonian University in Krakow, Freie Universität Berlin, and the European University Institute. In five sessions, the Seminar Series seeks to bring together scholars, policymakers and activists from Europe and the U.S. to interrogate the role that law plays, and could play, in increasing economic justice for consumers.