From the 2026 Antitrust Spring Meeting: Jonathan Barnett on How Competition Enforcers Are Undermining Competition

Joseph V. Coniglio joins guest Jonathan Barnett, Torrey H. Webb Professor of Law at the USC Gould School of Law, at the 2026 Antitrust Spring Meeting. They discuss Barnett’s new ITIF report, Europe’s innovation gap, and China’s mercantilist use of competition law.
 
Publications Mentioned

• Barnett, Jonathan M. The Big Steal: Ideology, Interest, and the Undoing of Intellectual Property. Oxford: Oxford University Press, 2024.
• Barnett, Jonathan M. Antitrust Undone: How Competition Enforcers Are Undermining Competition. Washington, DC: Information Technology and Innovation Foundation (ITIF), 2026.
• Barnett, Jonathan M. “Antitrust Mercantilism: Strategic Devaluation of Intellectual Property Rights and Wireless Markets.”
• U.S. Department of Justice and Federal Trade Commission. Antitrust Guidelines for the Licensing of Intellectual Property. 1995.

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​Joseph V. Coniglio: Thank you for joining us. My name is Joseph Coniglio and I'm the director of Antitrust Innovation at the Schumpeter Project on Competition Policy here at the Information Technology and Innovation Foundation, ITIF. And I'm very glad that you're joining us for the fourth episode of our still new Schumpeter podcast, Creative Discussion. We're channeling Schumpeter's idea of creative destruction. We'll be having wide-ranging and in-depth conversations with some of antitrust's greatest thinkers and luminaries to discuss cutting edge issues in antitrust, technology and more, as well as get to know a little bit about some of the people that, again, are very influential in the antitrust community. With that, I'm glad to announce our speaker and featured guest for this episode, Jonathan Barnett. The Torrey H. Webb Professor of Law at the University of Southern California Gould School of Law, where he teaches antitrust, intellectual property, business law and contracts and more, as well as directs the law school's media, entertainment and technology law program.

Jonathan has published several excellent books on innovation, IP law, contracts including his most recent titled The Big Steal: Ideology, Interest, and the Undoing of Intellectual Property, Oxford University Press, as well as really what I can only describe frankly as a, an amazing corpus of articles on a very broad set of topics, which I think very consistent with Jonathan really being one of the top antitrust intellectuals of the next generation really.

And some of which I know I think we'll talk about here, some of those articles but which include also a recently released ITIF report authored by Jonathan titled Antitrust Undone: How Competition Enforcers Are Undermining Competition. There's definitely a lot of that going on. Before joining USC, Jonathan practiced corporate law at Cleary Gottlieb in New York.

Has his JD from Yale, an M.Phil from Cambridge, and his undergraduate degree from University of Pennsylvania. Jonathan, very impressive resume. Thank you so much for being here.

Jonathan Barnett: Thank you. Glad to be here. That's a very detailed bio. I forgot some of those details myself.

Joseph V. Coniglio: Happy to remind you. In fact, why don't we start off there. Before we get into the ITIF report, tell us a little bit about yourself. How did you get to where you are now, your interest in antitrust? It's pretty self-evident that you obviously wanted to leave the East Coast to go out to sunny California.

But beyond that, tell us a little bit about your life.

Jonathan Barnett: Yeah, let me tell you a little bit about pre-academia. I was actually an M&A lawyer at a firm on Wall Street for about five years, and I bring that up because I think that informs my scholarship both on innovation policy and on antitrust. I try to integrate into my scholarship and understanding of the business realities of particular industries, rather than relying on abstract models.

My preference is always for deep factual investigation of particular industries.

Joseph V. Coniglio: It is so important because I think definitely M&A is really critical always, especially these days in the last four years in antitrust. And I think that we should definitely get into more of that later, but I do want to talk also about this ITIF report first that you recently released with us and came out yesterday and really gets into this big issue we're dealing with, the spread of global antitrust regulation around the world the standards for competition law around the world. And I think you really lay out both comprehensively and concisely, the risks that are present for M&A, but also beyond, for innovation from the European competition model spreading around the world, both on competition law, but also now with regulation and the DMA, but also the risks at home and how folks on both the left and even the right are really starting to adopt a lot of these European competition law ideas, which I don't think really have a good track record.

So why don't you take us a little bit through that report.

Jonathan Barnett: Yeah, the reason I wrote this report, it's really, I would call it a radical call for a return to conventional antitrust, and as you alluded, the stakes here really can't be more significant, I think until about 10 years ago. The antitrust debate; there was agreement, there was intense debate, but there was an agreement that competition law, antitrust law is about preserving a market economy. And the purpose of competition law is to set up and preserve the conditions for markets to determine competitive outcomes, but in various varieties, both in Europe and as you say, we have homegrown varieties here domestically. There seems to be a vision of using antitrust or competition law to determine particular market outcomes.

Particular market structures and firm structures seem to be preferred over others. That is an entirely different vision that has been the foundation of antitrust analysis, at least since the Chicago turn in the late seventies, I would argue even predated that at least in this country.

Joseph V. Coniglio: Yeah, people often forget they talk about the Harvard School versus Chicago, but on the idea of antitrust is about economic welfare and economics. Harvard and Chicago School were agreed on that. They had different views on how important structure was, but as you say, really was foundational. And one of the things you highlight in the report that I think is really just very important which what we title an inconvenient fact for the Brussels market.

You and I can discuss the theory, we can debate with the Europeans on the theory, but eventually, you just have to say the proof is in the pudding. Tell us about the differences between innovation in the United States based on the different competition policy models that each of the jurisdictions adopted the last 40 years. What have we learned?

Jonathan Barnett: Yeah, I'll, let me bring in some research I've done, empirical research I've done on innovation policy. I've done empirical research using different metrics that track innovation leadership around the world. And one of the remarkable developments that you can observe is that roughly over the past 20 to 30 years, Europe has simply dropped out of the innovation economy with the only exceptions being biopharma and certain segments of chip design. That is just remarkable. And the US, on the other hand, has continued to shine. And in digital platforms we essentially have no peer outside China. Now, there's lots of reasons for that. But in our world of antitrust , if we have to choose between the Brussels model and the US model, as it has been in place since again, the late seventies, it's still in place in the federal case law, federal case law has not budged . Clearly, unless you're really a risk taker , you're going to go with that US model because the US model has delivered by orders of magnitude over the European model, especially in terms of innovation. And that's the key thing because we're a knowledge based economy now, and innovation is the key thing.

So you'd have to be really confident in the Brussels model to recommend that over the US model, given the track record over the past two to three decades.

Joseph V. Coniglio: It is so true, and I think people are finally starting to wake up both in Europe and also internationally. Just recently I think there was a report that came out by the IMF that got some traction on Twitter and elsewhere. And basically the idea is Europe once led the world in productivity, right?

But now they don't. And the reason is because of tech and innovation and frankly just a lack of scale that European companies are able to achieve. And as you point out in the report, a lot of that was just Europe's decision to want to keep firms small. Have this what you call structuralist, paradigm of competition policy.

Talk to us about where that came from. What is that structuralist view and why can't the Europeans seem to get away from it?

Jonathan Barnett: Yeah, I don't know if I'm going to speak too much for the Europeans, but I'll observe as an outsider that their vision of competition law, even though there was a period as I describe in the piece where they were starting to converge in certain respects towards the US model on a single firm conduct, but the spirit of European competition law is a top-down model, it's a planner model that prefers certain types of market structures. In some cases, perhaps for non-economic reasons. It's skeptical about size, it's skeptical about the values of scale, or in more sophisticated versions, it's willing to sacrifice the efficiency of scale just to keep things small, but one of the key lessons that we learned way back when in the early critiques of antitrust, it goes back as the scholarship starts in the sixties, was that scale often benefits consumers because per unit costs are driven down, and if there's competition, it passes on to consumers. That was one of the key insights shared by the Chicago School and the Harvard School, as you say. And that's one of the key distinguishing features between the US approach and the European approach. It recognizes that big is sometimes good to put it simply, and if big is sometimes good, then the anti-trust, especially on single firm conduct starts to get complex. And that goes back to what I like to do. We've got to go industry by industry. We've got to go practice by practice. There aren't sweeping solutions across the board.

Joseph V. Coniglio: Exactly, and you have another great section in the report, the error costs of big is bad where you go through a lot of that and it also gives very concrete examples. So again, I would commend that your report to our readers and listeners and I really hope it gets the traction it deserves, given how relevant it is in this policy debate.

But switching gears a little bit now and talking, actually starting with the last section of your report, talking about the end of history in antitrust and I think none of us can really disagree with the fact that there is this big debate going on right now in antitrust policy where the old consensus is under attack on all sides on the one hand. And on the other hand, just as a letter of where we are with the markets, rapid innovation. AI and this sort of combined pressure of doing precautionary antitrust now in the AI space, concerns about potential competition, killer acquisitions. You've written a lot about that.

How should we frame the current antitrust moment we're in right now when we think about the rise of AI?

Jonathan Barnett: Yeah, this has got to be one of the most exciting times to work in antitrust, because there's two really interesting things going on. First, even among those, and this is still the mainstream of scholarship , it's still the federal case law, let's be totally clear. If we're working within that conventional framework, there is so much work to be done right now, nitty gritty fact intensive work. Our challenge is: How do we take the consumer welfare standard? How do we take an efficiency driven framework of antitrust law and apply it to digital markets? My view is that we have the toolbox , but we have a new environment that we have to apply it to, and there's a lot of uncertainty there. And when you have a lot of uncertainty, the error cost framework teaches us to, if you're in the position of the regulator, if you're in the position of the judge, take the equivalent of the Hippocratic oath, do no harm. Because false positive interventions into antitrust markets are hard for markets to unravel. And we just got a lesson in that where there was an effort or investigations undertaken on both sides of the Atlantic to intervene early on in the AI market. The AI market probably could win an award for receiving the most scrutiny at the earliest stage in its development. And one of the key concerns was that big tech platforms were investing in some of the independent model developers, and there was a concern that they would suppress this potential competition. But if you look closely and in work I publish, I've shown this, there were multiple investments and the independent model developers were taking investments from multiple big tech platforms, and they were all minority investments. They gave no one control, and now we fast forward just about a year and a half later, I think it might be as short as that, and who are some of the leading answer engines? It's not Microsoft. No one likes Copilot, but people Anthropic, people like Claude, people like ChatGPT. And so, if the regulators had intervened we now know it would've been too early. So that's one thing that's going on.

That's a super technocratic methodology discussion going on. If we now broaden it, and we're going to include varieties of antitrust and competition law that are no longer anchored in the consumer welfare standard —again, in the US this has not become law— but it's out there in the conversation, absolutely. In Europe, it has entered into the law through the DMA. And under this view, antitrust law can serve a greater range of objectives than just efficiency. And that's a much bigger conversation. That's a normative conversation. The stakes are extremely high. Going back to what I said earlier, because if you move beyond the consumer welfare standard, you're starting to venture into something that starts not to become recognizable as antitrust law anymore because it's no longer singularly dedicated to preserving the competitive market. It seeks to engineer certain types of markets or certain types of outcomes.

Joseph V. Coniglio: Exactly. And I just think people often forget with AI, they tend to think, oh, we're back in the old days of the Wintel duopoly and they forget this is a totally different market with a lot of competition here, right? And firms that have developed over the past few decades that are now all competing in AI.

And as you point out in one of your pieces this precautionary approach that we're already seeing in Europe with investigations into Google, and a statement of objections against Meta. Just totally missing those dynamics. But separate from the question of technological change in that moment that we're in with antitrust, I think the other big topic , which again you're writing at the cutting edge on, is this idea of geopolitics and framing antitrust in, as you call it, the great power conflict. So talk about that, right? We want to keep consumer welfare away from the mistakes of failed structural competition policy, but how can we integrate concerns about global competitiveness?

We think about great power competition with the US and China. How can we work that into an administrable pro innovation, consumer welfare model?

Jonathan Barnett: Yeah, this is another really interesting intellectual challenge, and then the real world stakes. These are really high stakes. If you zoom out on what happened that Chicago, what I'm calling the Chicago turn, and maybe you prefer Chicago slash Harvard turn in the late seventies, early eighties , where we anchor antitrust and consumer welfare , right? We zero in on efficiency. We adopt economic methods, but that was part of an even larger vision globally. A free trade vision, right ? Free trade vision where we have competitive markets globally and we're really indifferent where one particular economic activity is taking place. Because we're living in the world of David Ricardo comparative advantage and we're maximizing global wealth. But what happens when the second largest economy in the world no longer plays by the rules of that game, and they start undertaking mercantilist activity, they start using their antitrust laws for mercantilist purposes. And I'm of course referring to the well-documented practices— it's not a controversial fact— of the industrial policy of the People's Republic of China. And if you were to continue to undertake your industrial policy of which antitrust is a part, as if that weren't taking place you would be forfeiting economic leadership and you would not be undertaking economic policy in the national interest of your citizens. But here's the challenge we face: if we are to use or to modify antitrust law in order to pursue these industrial policy goals, we run a very great risk of departing from the consumer welfare standard and venturing into protectionism. I've run a short piece, and I think we're at the early stages of figuring out how to do this. That one way to address it is we essentially keep antitrust as is . We focus on the consumer welfare standard. But we use override mechanisms outside antitrust law to override antitrust where there are overriding national interests. And the way we do that right now is thorugh CFIUS. And there may be other mechanisms, and there may be ways to expand the role of CFIUS, but that's a tension that I think we have to address and we can't avoid it. How do we come up with an antitrust policy that stays within the guardrails of the consumer welfare standard? But nonetheless is not blind to the fact that in the global economy there is at least one great power that is pursuing mercantilist policies to our detriment.

Joseph V. Coniglio: Yeah, I want to drill down just a little bit more on this because it's so important and I think you're right. And at one level I think there's a question of remedies, right? And maybe we do need to take a broader approach when we think about remedies. And I think maybe with a public interest standard, there could be some room for that.

Then there's also the issue of prosecutorial discretion and what the agencies are actually doing and how they're spending resources. But one of the things I love about your article is you point out how within the framework of the consumer welfare standard, we can incorporate concerns. We can do things that allow us to take a broader view of competition in this way. And you talk about the relevant market in particular in geographic markets. How can agencies realizing the global nature of competition help ensure that we're not doing things like chilling pro-competitive transactions by ignoring Chinese competitors.

Jonathan Barnett: Yeah, this feeds into market definition. It informs, enriches our understanding of the importance of scale . When markets are global, scale becomes even more important. In certain markets, our leading companies face the following situation. We do not have entry barriers into our market for China-based competitors, but our companies are unable to enter into their market.

This is part of the PRC policy of dual circulation, and therefore, we may need to think more broadly in terms of, as you mentioned, geographic markets to take into account actual or potential competition from foreign competitors of comparable scale , we could achieve comparable scale and then specifically in digital markets because physical distance doesn't matter.

 In digital markets, we may, there again need to adapt our existing tools to reflect the realities of digital markets that are boundaryless in many cases, and where scale is particularly important.

Joseph V. Coniglio: It is such a hugely important topic, Jonathan, and I think your piece really is again, at the cutting edge here and laying out the sort of solutions we need to be thinking about in the US and the Western competition policy community. But there's so many hot issues. And I know another one that you write a lot about, that's again, a perennial hot topic in antitrust is antitrust and intellectual property rights. And you've just written so much on IP issues generally, but also in antitrust. And, we have these perennial debates, as I say, with regarding standard essential patents and implementers, SEP holders. How do we strike the right balance?

Could you maybe give your general thoughts on those issues? And also, I know you have some work you thought about with respect to 5G and the internet of things and the coming discussions that we'll have around those technological changes and also AI and interoperability.

Give us your sense of where we stand right now in great antitrust IP debate.

Jonathan Barnett: Yeah, I think the most important contribution ever made to the IP antitrust debate is actually forgotten. It's in the 1995 IP licensing guidelines. And what they say in the guidelines and later the Supreme Court adopts this as well, is that intellectual property rights for antitrust purposes should generally be treated the same way as any other property right. Meaning that there should never be a presumption simply because someone has a patent or a copyright, that they have market power. Again, it has to be shown in every single case. And why is this so important? Because I think in some cases our antitrust enforcers, especially in the wireless licensing space, have forgotten this. They have been too quick to assign market power to patent owners without really understanding how those IP rights are actually used. And in many cases, IP rights have a counterintuitive effect. They actually can make markets more competitive. They can lower entry barriers for certain types of entities that specialize in innovation, but rely on licensing in order to monetize that through partnerships with others. And they can also help make markets more competitive in the sense that through licensing, they can distribute that technology more widely to producers. And what I just described for you is actually the structure of the wireless licensing market for the key technologies that stand behind the smartphone.

There's a handful of firms that are located in the US and in Europe, and there's one competitor located in the PRC. And aside from the competitor located in the PRC, all the other firms rely on a patent portfolio and they rely heavily on licensing and that enables specialization. And it enables those firms to distribute widely to producers.

It also lowers the entry barriers for producers into the market because they don't need to reinvent the wheel, and they don't need to incur those same R&D costs. So, this is an example to that sort of mundane point I made right at the beginning. We need to learn every industry by industry because they each have their peculiar business logic.

It's an organic adaptation of the market to the technology and to the economic characteristics. Again, to be perfectly clear, this is not to say that IP rights can never be misused in a way that is relevant for the antitrust laws. But all of the tools that we have developed to address single firm conduct are well equipped to do that.

IP is not a special case. It should be treated as a property just like any other for the most part.

Joseph V. Coniglio: Yeah, that parity principle is so important, that IP rights and non-IP rights are on the same plane and we need to treat them accordingly. But also, maybe tying a couple themes together here, the innovation, the geopolitics, and the IP. You have a great article, Antitrust Mercantilism: Strategic Devaluation of Intellectual Property Rights and Wireless Markets, and among other things that you talk there, you talk about how China is really making a play to dominate the standards and IP by trying to set global rates, for example, in favor of Chinese companies, use of things like anti-suit injunctions, basically to make sure that all these decisions are being done in Chinese courts, and then obviously become global decisions. Talk about what policymakers should be thinking about in this context.

Jonathan Barnett: Yeah, the PRC example where I focus on roughly from the mid-90s to the early 2000s, what I showed there as you're alluding to, is how competition law is adopted into China. It's actually adopted fairly late stage, which they call anti-monopoly law, and they incorporate concepts from European competition law and some concepts from US antitrust law. But then when you look at least in the wireless licensing sector, it then is deployed for mercantilist purposes. And this can either be deduced or in some cases it's stated explicitly by PRC government leadership, and then it's executed and implemented by the regulators. And the clearest example was the investigation in 2015 against Qualcomm which resulted not only an almost billion dollar fine, but in the royalty rate for domestic device producers being reset significantly below the global rate. The insight that I think we can get from that example is what happens when you detach antitrust law from the consumer welfare standard. It can start to be used for other purposes that are not consistent with the free market. Because what is happening there, the regulators are using antitrust law to reset the market rate in a way that benefits the portion of the tech supply chain in which they excel.

They excel in device production, and IP is an input, and they're using anti-monopoly law in order to reduce that price. I think that's a lesson we should internalize. It's so important to keep that guardrail of the consumer welfare standard. Now, how should we address that? I think that ventures into international trade law, and I go back to my earlier point: I think it's important to keep antitrust, US antitrust tied to the consumer welfare standard when others deviate and then we need to bring in other policy tools to address that.

Joseph V. Coniglio: Yeah. And it's so true because you're right, in many cases the Chinese firms are more on the implementer side rather than the SEP holder side. But you even have cases where you might have Chinese firms on the other side, and it seems like they're always the ones that are acting in FRAND, whether they're the SEP holders or the implementers, and it's the non-Chinese and often American firms who are not.

So really an important issue and I hope it's something that policy makers are taking seriously, and you lay out a lot of really important stuff there that folks should be reading. Maybe just turning over now to a lighter note. We've covered a lot and we're coming to the end of our podcast.

We could talk about this stuff for many hours, but it is a special week right now in the antitrust world. We have the antitrust spring meeting going on right now, which for those of us who are listening to our program, many of you probably know what that is, but also maybe not.

So, talk to us a little bit about why it's Christmas for the antitrust lawyers. 

Jonathan Barnett: It might very well be the largest assembly of antitrust and competition lawyers. And I guess it resonates with some of the themes in the piece because it's very much an international event with antitrust lawyers from around the world from Europe and from Asia. And let me go back to the heart of my piece because I think the fact that you get that interchange between competition lawyers from around the world is tied to part of the piece and part of the piece is addressed to the US audience to appreciate the virtues of what we have, what we've developed while recognizing a large room for debate, especially as we apply our existing toolbox to digital antitrust.

But I also have some passages in the piece that are designed internationally because given the track record of the US economy under an antitrust model that is tied to the consumer welfare standard, that is sensitive to error costs, especially false positive error costs , that seems to be a model that works quite well and as regulators around the world are thinking about models to emulate, or even in Europe , are perhaps rethinking some elements of their model as they are since the issuance of the Draghi competitiveness report. They may wish to look at some elements of the US model, not to say that everything is perfect, and your reference to the ABA meeting brought that to mind. That while there is this divergence, especially in scholarship across the antitrust world, if we were to draw a Venn diagram, we'd still have a pretty big overlapping region where we have regulators, we have judges who are committed to a meaningful form of a market economy. And I think before the rest of the world jumps onto the Brussels bandwagon, I think they might want to think a little bit more deeply about whether ex post, evidence-based, it's a slower moving approach that we've developed in this country, that might be the better way to go.

Joseph V. Coniglio: So true. These are the discussions that make the spring meeting so great, when you have people from all around the world that converge on DC for what are usually excellent sessions on so many different topics. I don't even know what the number of people is this year. It's usually 5,000, 6,000.

It varies, but it is an amazing congeries of people. And I guess I would just say last question with a little bit of fun. In addition to all the great sessions and discussions that we have, and obviously it's a lot of networking, everybody's in town, we do have the great parties that the law firms go to.

What are some of the parties that you would recommend attending to, Jonathan? 

Jonathan Barnett: I think you're asking, I think you're asking the wrong person.

Joseph V. Coniglio: No, I don't want to get anyone in trouble by recommending one consulting or another. But I will say, the casino night by Charles River Associates does seem pretty good tonight. 

Jonathan Barnett: I think, yeah. I've heard about it. I've heard about it. It's definitely an entertainment market. There's a lot of consumer choice.

Joseph V. Coniglio: Absolutely. And a lot of competition among those law firm parties and there's no doubt about that. I see we're at the end of our time here and I say this spring meeting week, there's a lot going on. So, Jonathan, we're all the more grateful for you taking the time here.

I'm sure we'll probably catch up soon later. But I want to thank everybody who joined us for this amazing discussion. So many of the really key issues in innovation, IP and geopolitics we touched on here. And just want to encourage everybody to continue to follow the Creative Discussion Schumpeter podcast.

We've got a lot of great content planned over the coming months and for those of us who are in DC I hope that by the time this is released, you'll have enjoyed some antitrust spring meeting. Thank you for joining us again and Jonathan, thanks for being here.

Jonathan Barnett: Thank you. My pleasure.