Coding Consent: The Merits of Antitrust Consent Decrees in the Tech Industry


Consent decrees are a power tool in the box of American antitrust regulators. The Department of Justice’s Antitrust Division finalized its first consent decree in 1906, and from the 1950s until the present, between 87% and 97% of the Antitrust Division’s cases have been resolved by consent decree. As the economy has developed to incorporate more and more technological companies and products, consent decrees have naturally begun to affect some of the biggest players in the digital world. Those consent decrees have not necessarily provided the most appropriate fit to the needs and requirements of the digital world. It is the purpose of this paper to explore the intersection of consent decree and digital world, and perhaps suggest some changes to the consent decree.

Beginning at the beginning, this paper will first survey the goals of antitrust regulation. Second, the reasons for the high rate of settlements in the last half-century will be examined, together with certain pitfalls that may accompany such a rate. Third, the details of several consent decrees involving technological companies will be laid out and compared, to see whether and what pitfalls have actually materialized. Fourth, this paper will make some observations on the strengths and flaws of the consent decrees as they have appeared. It will conclude by suggesting some specific considerations to be taken into account in future settlements with the digital world.

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