In April, we published a short piece in Notice & Comment on 5 key monopolization cases in the tech sector. In it, we presented the results of an informal poll of economists with expertise in antitrust. The poll asked them to rate the strength of the government’s cases by providing both stand-alone ratings and relative ones. Here, we present the results of a follow-up poll in the wake of Judge Amit Mehta’s decision in the Google search case. Judge Mehta’s decision is that of a federal district court and, hence, a fact on the ground; it is also, in our view, a substantial and largely thoughtful one—which is not to say that we agree with its findings of liability. For those reasons, we thought it worth asking whether the decision had changed any minds about the cases.

The short story is this: plus ça change, plus pretty darn similar. Reported views vary across both respondents and cases but, on average, our respondents do not think that the government has brought very strong cases.  

Our initial poll was inspired by Daniel Crane’s poll of legal scholars, also published in Notice & Comment, on five then-open monopolization matters brought by the DOJ and the Federal Trade Commission (FTC): Google Search, Facebook/Meta, Amazon, a second case against Google focused on its AdTech business, and now the Apple case. Professor Crane’s piece had fostered some interesting discussion, and we thought that a similar poll of economists might add to that discussion. 

We asked each survey participant to provide two numerical ratings for each case. First, much as Professor Crane did, we asked for relative (or ordinal) rankings: each of the five cases was to be ranked on its strength relative to the other four cases, with 1 representing the weakest of the bunch and 5 representing the strongest. Second, we wanted to get the respondents’ sense of the overall strength of each case, so we asked them to score the strength of each case on a 5-point scale, with 5 being strong and 1 being weak. As we observed at the time, “[o]ur results largely mirrored those rankings from Professor Daniel A. Crane’s recent survey of antitrust law professors.” 

This follow-up poll is similar to our initial one, albeit with several changes. First, because we’ve not seen any polls of legal scholars since Professor Crane’s March 2024 discussion, we decided to poll a selection of legal scholars in addition to economists. Second, we expressly acknowledged Judge Mehta’s opinion in the Google search case, and we asked whether people had changed their minds about the case based on Judge Mehta’s decision on the question of antitrust liability (at the time of this writing, he has not yet issued a decision on remedies). The first time around, our respondents had ranked the Google search case as the second strongest of the five, but not especially strong in its own right (with mean and median scores of 2.9 and 3 on the 5-point scale, respectively). As in our prior poll, we also provided space for written comments beyond the numerical scores. Responses were considered complete (and hence incorporated into our results) independent of the question whether a respondent provided such additional editorial comments. 

As before, our survey was a casual one. It was based on a convenience sample that was neither random nor, in the end, defensible as fully representative of the profession. Our goal, simply, was to reach out to economists and legal scholars representing a wide range of perspectives and backgrounds in the field. All answers were anonymous. We did not survey economists or attorneys presently on staff at the agencies; and perhaps it goes without saying, but we did not survey ourselves either. We have written separately on several of the cases (see, e.g., pieces on the Google search and Google AdTech matters).  

We received 23 complete responses. Results were not terribly different the second time around. Summing the relative strength scores for the April poll, the ordinal rankings (perceived strongest to weakest) were as follows: 1. Google AdTech; 2. Google search; 3. Facebook; 4. Apple; and 5. Amazon. In this new poll, the Google AdTech and Google search cases again had the two highest aggregate ordinal scores (albeit tied this time), followed by the Facebook and Apple cases (also tied). As in the first poll, the Amazon case was rated the weakest of the bunch, finishing fifth. 

And just as we found with the first poll, most of our respondents did not find any of the cases to be very strong. Mean and median scores on the strength ratings in the second poll were as follows: 

1. Google search: mean average score 3.2; median 3.5;
2. Google AdTech: mean average score 3.2; median 3.5; 
3. Apple: mean average score 2.5; median 2; 
4. Facebook: mean average score 2.0; median 2; and 
5. Amazon: mean average score 1.5; median 1. 

That is, none of the cases had a mean or median strength score of either 4 or 5; the third strongest case had mean and median strength scores of only 2.5 and 2, respectively; and strength scores for Facebook and Amazon were clustered at the bottom of the scale.

There was some variation, however, which was to be expected. For example, while the mean and median scores for Google search were 3.2 and 3.5, respectively, 9 of the 23 respondents gave it relatively weak ratings of 1 or 2, while 6 respondents gave it a “strong” rating of 5. And while most respondents gave relatively weak scores (1 or 2) to the Apple case, 6 respondents rated it a 4 or a 5, at the higher end of the scale. The Amazon case had consistently low scores: most of our respondents (16 of 23) gave it the lowest possible score (1), several more gave it a score of 2, and no respondents gave it a score higher than 3.   

There were some differences between attorney scores and economist scores, on average, but the differences were not striking. For example, lawyer-only scores for Google search had a mean of 3.4 whereas economist-only scores had a mean of 3.1. And while the mean economist rating of the Amazon case was 1.4; the mean legal scholar rating was 1.7. 

We could play at a richer numerical analysis, but we’re not sure there’s a point to it, given the number of respondents, the inclusion of legal scholars in this second poll, and the lack of balance across the professions (14 respondents self-identified as economists; 7 as legal scholars, and 2 as both economists and legal scholars), not to mention the relatively small n and the informal nature of the poll. 

Most respondents (15) said that they had not changed their minds about the Google search case since reading Judge Mehta’s decision, although the rest were evenly split (4 and 4) between “I now believe the government’s case is slightly stronger” and “I now believe the government’s case is much weaker.” Respondents were almost evenly split about Google’s prospects in appealing the search decision, with 8 calling a reversal “likely,” 7 reporting a reversal “unlikely,” and the remainder roughly split between “very unlikely” and “neutral.”

Further editorial remarks by respondents varied along several dimensions (including tone). For example, criticism of the cases included the following: “[t]he Apple, FB & Google search cases are incredibly weak and should never have been brought”; “[h]ow the heck does the judge want Google to monetize search . . . if there is no solution, there is no problem.” One respondent did, however, opine that a “judicial finding that the use of exclusive contracts by a dominant firm in violation of Section 1 and/or Section 2 was the most predictable outcome of the Google Search case and will have significant implications for other digital and non-digital monopolization cases.” And another suggested that “Judge Mehta should consider fencing-in relief that prohibits technical or contractual defaults for Google’s AI models.” Still another offered “[y]ou didn’t ask, but I doubt Judge M will order a breakup of Google.” Interesting, if atypical, was this: “Probably the most important implication of the GS case for the other cases is the unequivocal denigration of a duty to deal claim. That sort of claim (explicitly or implicitly) underlies Apple, Adtech, and Amazon.”  

Of course, a decision on the remedy (or remedies) in Google search remains forthcoming, as do decisions in other tech matters. And an informal poll is just that, and certainly not binding on the judiciary. Still, we surveyed established members of the antitrust law and economics community and found the responses interesting, and perhaps suggestive of future decisions. 

Daniel J. Gilman is a senior scholar of competition policy at the International Center for Law & Economics

Brian C. Albrecht is the Chief Economist of the International Center for Law & Economics.