Affectation with a public interest, between antitrust laws and regulation: Lessons from the U.S. experience of the first decades of the 20th century for online ecosystems

A new working paper co-authored with Thierry Kirat. Its purpose is to shed light on a notion used in the early 20th century in the US both in the field of antitrust laws and in the one of sector specific regulation : the affectation with a public interest. The historical analysis of this notion helps us to analyse the complementarities between efficiency-related concerns and broader ones related to the concentration of economic power in few private hands. It leads us to consider the issues raised by firms acting as bottleneck for other for accessing the market and the concerns resulting from their capacities to act as private regulators.

Such 20th century originated concerns echo our current ones with Big Tech. Obviously, these points can be put in perspective with proposals to make competition laws or antitrust laws evolve to tackle the issues raised by large digital ecosystems and with proposals to regulate them “as quasi-public utilities”. One of the advantages of the notion of affectation with public interest is that it was not limited to natural monopoly issues and it was applied in fields that were not characterized by any “market failures”.

A parallel might be drawn with our online ecosystems. Efficiency is not the primary concern but perhaps interferences with political power, and fundamental market values as a free and undistorted access to the market, consumers’ liberty of choice, and trading partners’ economic sovereignty.

More in our WP, available on the OFCE website: https://www.ofce.sciences-po.fr/pdf/dtravail/OFCEWP2022-01.pdf