Breaking Up Bottlenecks in Big Tech and Everywhere Else: Two Remedies That Keep Your Packages Arriving in Two Days

This article addresses the colossal problem of remedy in antitrust and regulatory cases combatting monopoly “bottlenecks.” A bottleneck monopoly lies somewhere along the chain of production and distribution of goods or services. Often both before and after the monopoly, the markets are workably competitive. When a bottleneck owner also participates in those workably competitive markets, the bottleneck owner has the incentive and ability to self-preference, discriminating against other competing products in the markets. As a monopolist, a bottleneck owner will also seek to constrain access to the bottleneck, assuring that the use of the bottleneck is not optimized.

Traditional remedies for bottlenecks have not worked. Some remedies rely on savvy regulators to compel open access while keeping the incentive structures in place. Other remedies rely on establishing competing networks, which is a Sisyphean task. None of these remedies, however, address the core problem: the incentive of a monopolist to exploit its monopoly.

This Article outlines alternative remedies we call the “condominium” and “cooperative” remedies. By reconfiguring the ownership structures of the bottleneck, these remedies eliminate or dramatically reduce the monopoly incentive problem, thus removing the need for a hypervigilant regulator or a failed competing network. These solutions are not perfect, and the Article details the potential risks of deploying such remedies. Finally, the Article takes both proposed remedies for a test drive, describing how they could be employed if the Federal Trade Commission wins its case against Amazon.