The Federal Trade Commission (FTC) launched one of the most ambitious rulemakings in agency history Aug. 11, with its 3-2 vote to initiate Advance Notice of Proposed Rulemaking (ANPRM) on commercial surveillance and data security. The divided vote, which broke down on partisan lines, stands in stark contrast to recent bipartisan efforts on Capitol Hill, particularly on the comprehensive American Data Privacy and Protection Act (ADPPA).

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In a recent op-ed for the Wall Street Journal, Svetlana Gans and Eugene Scalia look at three potential traps the Federal Trade Commission (FTC) could trigger if it pursues the aggressive rulemaking agenda many have long been expecting.

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Abstract

The well-known economic principle that “there is no such thing as a free lunch” (NFLP) has enjoyed a recent revival in the assessment of digital markets in antitrust. There is a belief that NFLP implies zero-price platform services must somehow be “paid for” by consumers in some manner—such as the loss of privacy and valuable data. Others have gone further, asserting that consumers are not only made worse off by the data collection and use that attend zero-price platform services, but that this state of affairs necessarily points to a lack of competitive alternatives. Both assertions are invalid, pressing the NFLP beyond the limits of logical inference. Inferences about who pays resource costs, and whether those payments reflect market power, are empirical questions as illuminated by other economic principles. Answers to such critical questions cannot be plucked from an NFLP magic hat.

Is it illegal for a company to own two related virtual reality games? The Federal Trade Commission (FTC) thinks it is and is now suing Meta, Facebook’s parent company, for buying the VR studio Within, best known for the extremely niche game Supernatural. A closer look at the FTC’s challenge, however, suggests that the suit was more likely ginned up to get headlines than to foster competition in the rapidly growing VR business.

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Philip K Dick’s novella “The Minority Report” describes a futuristic world without crime. This state of the world is achieved thanks to the visions of three mutants—so-called “precogs”—who predict crimes before they occur, thereby enabling law enforcement to incarcerate people for crimes they were going to commit.

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Abstract

Cy près is a pivotal doctrine in estate law and indeed American jurisprudence. It places courts in the shoes of settlors of charitable trusts to discern not only their original intent but also affords the possibility of continuing the material purpose for which settlors created enduring legacies of philanthropy benefitting society. For this reason, it may well be that no other legal doctrine is as closely tied to the interests of the individual and the collective as cy près. And my first-of-its kind study puts the cy-près doctrine front and center, while providing three major contributions to the field.

First, through deliberative historical analysis, I offer an in-depth look at the types of cases American courts have heard involving the use of cy près. This historical categorization and explication is itself unique and provides significant insight into the controversies that allowed the doctrine to evolve. Second, the application of empirical methods to examine the doctrine is groundbreaking. By holistically examining the data I collected, I have been able to discern three major themes. The passage of time yields a gradual but greater adoption of the use of the cy-près doctrine. The presence of reversionary, gift-over, or private interests renders the use of the cy-près doctrine less practicable. And finally, courts are overwhelmingly more likely to apply cy près in cases involving public charitable trusts, educational purpose trusts, and medical purpose trusts, even when controlling for other independent variables and typologies of charitable trusts. Last, fifty-state surveys are commonplace; yet, none exists for the doctrine of cy près. I was able to assemble such a survey that not only assisted me in conducting this research but will undoubtedly aid other researchers for years to come, which I have addended to this Article in the Appendix.

Things are heating up in the antitrust world. There is considerable pressure to pass the American Innovation and Choice Online Act (AICOA) before the congressional recess in August—a short legislative window before members of Congress shift their focus almost entirely to campaigning for the mid-term elections. While it would not be impossible to advance the bill after the August recess, it would be a steep uphill climb.

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Brrring! “Gee, this iPhone alarm is the worst—I should really change that sometime. Let’s see what’s in my calendar for today…”

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Early Morning

I wake up grudgingly to the loud ring of my phone’s preset alarm sound (I swear I gave third-party alarms a fair shot). I slide my feet into the bedroom slippers and mechanically chaperone my body to the coffee machine in the living room.

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