[...]

At its core, this Article is about three themes: regulatory deadlock in
digital markets, neoliberal capture, and the need to deconstruct and historicize
before reconstructing and imagining new digital spaces. I discussed the
specificities and limits of neoliberal visions of platform regulation,
particularly that they obscure the way private digital power manifests,
escapes regulatory scrutiny, and can lead to harm to humans and ecosystems
in ways that partly repeat the de-regulatory and cyberutopian errors of the
past. I also began to show that any vision – regardless of whether it can be
characterized as libertarian, liberal, neoliberal, or critical – is partly
determinative of future trajectories and partly indeterminate and malleable.
In other words, each of us lawyers, activists, policy-makers, scholars,
students is constrained by our context but retains agency and the ability to
change states of affairs.
This leads me, in this concluding section, to a few final thoughts that will
serve as guiding threads for moving forward. I have emphasized throughout
this Article a distinction between libertarian, liberal, and critical perspectives,
and more concretely between liberal and neoliberal understandings of
platform regulation on the one hand, and critical and other egalitarian and
socialist understandings on the other. I identified these categories for
expository clarity and to show that noble ideas such as law and freedom can
be instrumentalized for wrongful purposes if we fail to pay attention to their
normative roots and effects in concrete circumstances. Unless subjected to
iterative and situated moral scrutiny, these ideas risk acting as empty facades
that favor powerful interests.
Moving forward requires a methodological shift that entails two steps.
First, it is essential to look at the past – the way past visions and attempts
evolved, their positive and negative repercussions – to avoid repeating
mistakes and to situate oneself more precisely and contextually in a long-term
process of regulatory progression. Today, because of past failures to look at
history and context, the primary options on the platform regulation table fall
within the neoliberal playbook. Antonio Gramsci wrote that “[a] main
obstacle to change is the reproduction by the dominated forces of elements
of the hegemonic ideology. It is an important and urgent task to develop
alternative interpretations of reality.”[...]