Behavioral Antitrust in 2026

CPI Antitrust Chronicle has a symposium on behavioral economics and antitrust. Below is the abstract for my contribution, Behavioral Antitrust in 2026:

Two decades ago, U.S. antitrust enforcers had little interest in behavioral economics. Today, courts cite consumer inertia, the FTC prosecutes dark patterns, and data-opolies, like Google and Amazon, use defaults and friction to exploit human behavior. Something has clearly changed — but has it changed enough, and in whose favor?

While enforcers were busy closing the gap between neoclassical economic theory and human reality, many firms were engaged in a race-to-the-bottom to exploit consumer biases and weaknesses. While antitrust can correct abuses by monopolies, it is often powerless against toxic competition. 

Consequently, behavioral antitrust, as this essay argues, is a necessary but not sufficient remedy. While it reaches dominant firms, it cannot halt the toxic competition when firms profit more from behavioral exploitation. Policymakers must turn to consumer protection and privacy laws to realign incentives.

But the government’s crackdowns on behavioral exploitation represent only half the promise of behavioral economics.  The same behavioral toolkit that enabled exploitation can also improve overall well-being — as automatic 401(k) enrollment has demonstrated for millions of workers. 

The ultimate difference between an economy filled with exploitation – such as junk fees and dark patterns – and one that promotes financial sovereignty – including the wonders of compound interest – isn’t determined by market forces. It’s the result of policy choices, including who has access to these potentially life-changing nudges. 

So, while we can celebrate the advances in behavioral antitrust, we should also tackle the following: what structural changes, besides cracking down on dominant firms, are needed to curb the systemic “race-to-the-bottom” in exploitative markets? How can policymakers tap into the promise of behavioral economics to improve collective well-being, such as ensuring that every worker can benefit from the wonders of compound interest?

If interested, the papers are available at CPI.

My paper is also available on UTK Law's SSRN website: https://ssrn.com/abstract=6299364 or http://dx.doi.org/10.2139/ssrn.6299364