THENEWYORKER,DECEMBER6, 2021 53
with Khan on the Yale Journal on Reg-
ulation, said that she seemed more so-
phisticated than the typical law student.
“She understood the political dimen-
sion of regulation and the lawmaking
process,” Woodring told me. “It’s so easy
for law students, especially relatively
green ones coming straight from col-
lege, to just treat the study of law as this
disembodied language in a vacuum. But,
in reality, especially with things like
antitrust and civil rights, it is very much
a political struggle, a complicated jour-
ney that involves all three branches. She
was comfortable with the nuts and bolts
of how that process worked.”
In early 2016, when Khan was in her
second year, she was invited, along with
Lynn, Kanter, and Teddy Downey, the
executive editor of the Capitol Forum,
which researches antitrust issues, to din-
ner with Senator Elizabeth Warren in
her Senate office. Warren, who had pre-
viously taught at Harvard Law School,
where she studied the erosion of the fi-
nancial security of the middle class, was
trying to better understand the relation-
ship of monopoly to inequality. Lynn
recalls that, at dinner, Warren’s eyes
gleamed as she listened to them talk
about the threat that economic concen-
tration posed to a free and equal soci-
ety. “Having had dozens of these kinds
of conversations with experts and policy-
makers all around the world, this was
one of just a few where you start to talk
to someone and they get it immedi-
ately,” Lynn said. Several months later,
at an event hosted by Open Markets,
Warren gave a speech on the subject of
competition in the U.S. economy. War-
ren was known as a critic of Wall Street,
and as the creator of the Consumer Fi-
nancial Protection Bureau; the speech
announced that she planned to target
the major tech companies in a similar
way. “Google, Apple, and Amazon have
created disruptive technologies that
changed the world, and every day they
deliver enormous value,” she said. “They
deserve to be highly profitable and highly
successful. But the opportunity to com-
pete must remain open for new entrants
and smaller competitors who want their
chance to change the world.” It was the
first time that such a high-profile po-
litical figure had publicly embraced the
ideas that Khan, Lynn, and other activ-
ists were advocating.
Khan started writing a paper argu-
ing that the consumer-welfare standard
was outdated, using Amazon as a case
study. Amazon had avoided antitrust
scrutiny so far, Khan wrote, because of
the fixation on consumer prices. There
was no question that consumers loved
the convenience of being able to order
almost anything on Amazon, and of
the free and expedited shipping in-
cluded in an Amazon Prime member-
ship. Khan believed that the low costs
to consumers were a short-term bene-
fit that failed to account for the harm
the company’s size and practices posed
to the economy. She highlighted the
company’s willingness to operate with
billions of dollars in losses for years at
a time, often by pricing products below
what it cost to make and deliver them.
This strategy has helped Amazon crush
its competitors in so many markets that
the company now provides critical in-
frastructure to other businesses, which
rely on it to get their own products to
market. It also has access to sensitive
data about most of its competitors, who
must use Amazon’s platform in order
to survive. Khan proposed two ways to
address the problem: One would be to
return to the old idea of antitrust law,
which focussed on preserving healthy
competition rather than on the prices
consumers paid. The second would be
to treat Amazon and similar compa-
nies like public utilities, and to regu-
late them aggressively, including by re-
quiring that their competitors be given
access to their platforms on more fa-
vorable terms.
David Singh Grewal, a law profes-
sor at Berkeley who was then Khan’s
faculty adviser at Yale, was impressed
by Khan’s unabashed attack. She could
have behaved like a “typical playing-
it-safe law-school kid trying to advance
in the world,” he said, by proposing
slight changes, thus avoiding offend-
ing her professors. “She didn’t do that,”
Grewal said. “She went for the intel-
lectual jugular.”
Khan’s ninety-three-page paper,
cheekily titled “Amazon’s Antitrust Par-
adox,” for Bork’s book, was published
in the January, 2017, issue of the Yale
Law Journal. By legal-writing standards,
it went viral, leading to dozens of fol-
low-up articles, including in the Times.
Several mainstream antitrust expertswrote rebuttals to her arguments, say-
ing that she had not demonstrated that
consumers were being harmed by Am-
azon’s size. Neil Chilson, a former act-
ing chief technologist for the F.T.C.
who’s now a senior research fellow for
the Charles Koch Institute, told me
that Khan had taken a very aggressive
position that was “out of step” with
mainstream antitrust thinking. “Many
of the ideas in it were not new,” Chil-
son said. “That paper added a new ap-
plication to a very old set of ideas that
had been debated and, I would say, in
many cases, undermined over the past
century.” Bruce Hoffman, the director
of the competition bureau at the F.T.C.
from 2017 until 2019, said, “The tech
companies are very big. That could be
because of anti-competitive behavior,
but it could also be because they’re bet-
ter at what they do than anyone else.”
Jason Furman, a former Obama ad-
viser who’s currently a professor at Har-
vard, pointed out the limitations of
antitrust law to deal with bad corpo-
rate behavior. “I think that there’s some
conflation of the idea that these are
monopolies with the idea that these
companies are causing lots of prob-
lems, and thinking that if you solve the
monopoly it will solve all the other
problems,” he said. “If what you don’t
like is that there’s genocides being
organized on platforms, or child por-
nography on platforms, or they’re hurt-
ing democracy as you see it—the rea-
son they’re doing many of those things”
is that such an approach is profitable,
a problem that antitrust policy can’t
necessarily fix.
Grewal disagrees. “Lina’s a visible
symbol of a younger generation that
really understands tech, understands
its problems, and she has done the work
to understand that this is not a new
problem,” Grewal said. “Our grand-
parents’ generation developed the tools
to deal with this. In effect, what she’s
doing is saying, ‘It’s time to rediscover
those.’ The reason these people are so
scared of Lina is she’s saying, ‘The em-
peror has no clothes.’”A
fter graduation from law school,
Khan returned to Open Markets
to resume her anti-monopoly work,
this time as a legal expert. Soon after-
ward, the European Union announced