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Touro Law Review

Touro Law Review

Abstract

Authors have written of antitrust law’s demise in the face of blockchain, which, seemingly, achieves the pro-competitive ends of the law through technology and private ordering. Permissionless blockchains in particular are said to offer a vision of radical disinter mediation and a break with the platform economy troubling the regulators today. At the same time, blockchain supposedly presents challenges to antitrust doctrine, from the most basic of concepts to the viability of enforcement and remedies. Finally, blockchain community governance is said to allow for private ordering of antitrust, i.e., enforcement of rules attempting to protect competition, which are at the same time illegal; not coming from the courts or agencies, they constitute competition wrongs themselves. This Article argues that all three claims are overstated and proposes a synthesis of law and code. The legal doctrine can be modified to tackle the novel technological landscape quite easily, with adoption of novel legal fictions. This is necessary since blockchains—both public and even more so private ones—while ingenious, do not remove a need for the law to protect the market from anticompetitive conduct. Indeed, even public ledgers have power structures allowing for abuse, while private blockchains may, in fact, allow for its proliferation. The law needs to find a regulatory access point to the ledgers. This is not an easy task; however, cooperation of blockchains with the law, and encoding of antitrust rules on the ledgers themselves, offers a possibility of a reconciliation between the law and the code. At the same time, this lends legitimacy to pro-competitive actions of those cyberspace communities and ensures a preservation of the rule of law. This is the blockchain antitrust synthesis.

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