Innovation Misunderstood

Innovation is transformative and key to future prosperity. It is therefore of no surprise that antitrust laws seek to promote it. What is surprising, however, is that despite the central role that innovation occupies in competition cases, its actual treatment by the courts is far from nuanced. In this paper, we reflect on the D.C. Circuit’s 2023 ruling in New York v. Meta to illustrate the prevailing monocular vision adopted by the court in its treatment of innovation.

That vision, we argue, reflects simplistic assumptions as to innovation dynamics and mistaken beliefs about the digital economy. It is further compounded by jurisprudential problems that characterize U.S. antitrust laws. The result is troublesome. While “everyone talks about innovation,” the courts do little to inquire on its scope, nature, and value.

Nor do courts recognize the impact of anticompetitive strategies deployed by the dominant platforms on disruptive innovations and their heterogeneity.