It takes at most 19 clicks to navigate from any of the one trillion websites on the internet to any other. That fact alone should give pause to anyone who claims Big Tech has monopolized the web. Yet that is precisely the claim driving the most ambitious antitrust enforcement agenda in a generation.

In Antitrust Law for Blockchain Technology, published in the Journal of Corporation Law, I argue that the Neo-Brandesian movement’s push to break up Big Tech rests on a fundamental misunderstanding of how the internet actually works. The market for information on the World Wide Web is structurally different from the oil and railroad markets that gave birth to antitrust doctrine 130 years ago. Applying the old tools to the new market could backfire spectacularly – not by taming monopolists, but by preventing the decentralized competitors that would actually challenge them.

The flawed analogy

The Neo-Brandesian case against Big Tech, championed most prominently by former FTC Chair Lina Khan, draws heavily on historical analogy. Khan’s influential scholarship compares Amazon’s market position to Standard Oil’s and analogizes Big Tech’s vertical integration to the railroad monopolies that prompted the Sherman Act. The argument is that concentrated market structures promote anticompetitive conduct, and the solution is structural reform – breaking up dominant firms.

My response is direct: the analogy fails because the markets are structurally different.

Antitrust doctrine originally developed from a law enacted 130 years ago to deal with monopolist “robber barons” like Standard Oil. Since 1890, the structure of markets has changed. Today’s information markets through the internet are much different from the railroad and oil markets of more than a century ago.

Oil and railroads are physical commodities controlled through physical infrastructure. Building a competing railroad requires laying track – a capital-intensive, geographically constrained undertaking that naturally tends toward monopoly. The internet is a decentralized-distributed network where information travels through automated route-selection processes. No single node controls the flow.

What the internet actually looks like

I use Barrett Lyon’s Opte Project – a visualization of the World Wide Web generated by tracing Border Gateway Protocol (BGP) routes – to illustrate the internet’s structure. The image reveals a branching, decentralized network of peers. Zoom in on any node, and it appears dominant: all local information flows through it. Zoom out, and it becomes an insignificant part of a much larger system with countless alternative pathways.

This structural observation has legal consequences. Antitrust structuralism – the theory that concentrated market structures promote anticompetitive behavior – requires showing that a market actually has a monopolistic or oligopolistic structure. If the internet’s information market is decentralized and distributed, the structural premise collapses.

An apparently dominant firm today could be negligible tomorrow. Unlike rail lines laid in the 19th century, the web changes constantly, growing new branches and cutting off old ones in response to economic, political, and technological factors. Market dominance on the internet is inherently dynamic in ways that railroad or oil dominance never was.

The Duber problem

To show how the Neo-Brandesian approach could backfire, I construct a thought experiment. Imagine a distributed organization called “Duber” – a Web3, blockchain-based alternative to Uber. Duber operates through smart contracts and decentralized governance rather than a corporate hierarchy. It could offer the same ride-hailing service without the centralized control that antitrust regulators worry about.

Here is the problem: aggressive antitrust enforcement against existing dominant platforms, combined with a regulatory philosophy that presumes market power from market share, could prevent Duber from ever gaining a foothold. If regulators treat any firm that achieves significant market share as presumptively anticompetitive, they penalize success – including the success of decentralized challengers that represent the very competition antitrust law is supposed to protect.

Khan’s regulatory philosophy, I argue, could reinforce dominant firms by preventing entry. The irony is sharp: an agenda designed to promote competition could instead calcify existing market structures.

The structuralism trap

The deeper issue is that Neo-Brandesian antitrust focuses on market structure rather than consumer welfare. Under the consumer-welfare standard that has dominated antitrust analysis since Robert Bork’s The Antitrust Paradox (1978), the question is whether a firm’s conduct harms consumers through higher prices or reduced output. Under structuralism, the question is whether the market is too concentrated – regardless of whether consumers are actually harmed.

I contend that structuralism is the wrong lens for information markets. The price theory approach – evaluating actual consumer harm – better accounts for the dynamic, decentralized nature of the internet. A firm that looks dominant on a snapshot of the web’s topology today may face vigorous competition from technologies and competitors that do not yet exist.

For antitrust plaintiffs seeking to apply structuralism to Big Tech, I identify a high burden: they would need to convince courts not only that structuralism matters, but that the internet’s information market actually resembles a monopoly or oligopoly. The decentralized-distributed architecture of the web cuts against that showing.

Why blockchain matters

Blockchain technology offers the most plausible pathway for decentralized competitors to challenge Big Tech. DAOs, peer-to-peer networks, and Web3 applications can replicate many of the services dominant platforms currently provide – without the centralized control that triggers antitrust concern. But this potential is realized only if the regulatory environment permits it.

If antitrust enforcement treats any firm that achieves significant market share as presumptively anticompetitive, it penalizes success – including the success of decentralized challengers that represent the very competition antitrust law exists to protect. The irony is sharp: an agenda designed to promote competition could instead calcify existing market structures by preventing entry.

Read the full article: Seth C. Oranburg, Antitrust Law for Blockchain Technology, 49 Journal of Corporation Law 379 (2024).