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Popular Media A major new antitrust report from House Democrats proposes to nullify a half-century of jurisprudence and regulate American tech companies like public utilities. Inspired by . . .
A major new antitrust report from House Democrats proposes to nullify a half-century of jurisprudence and regulate American tech companies like public utilities. Inspired by Sen. Elizabeth Warren (D-Mass.), who proposed something similar when she ran for president, House Democrats appear to have realized that antitrust can be misused to reshape the American economy wholesale.
Read the full piece here.
TOTM No matter your Twitter feed, “vaccines have been one of the greatest public health tools to prevent disease,” as The New York Times explained in . . .
No matter your Twitter feed, “vaccines have been one of the greatest public health tools to prevent disease,” as The New York Times explained in January…
Many are terrified that the Food and Drug Administration may hastily authorize injections into hundreds of millions. The FDA and drugmakers are trying to assuage such concerns with enhanced commitments to safety. Nonetheless, fears have been stoked by President Donald Trump’s infomercial-style endorsement of hydroxychloroquine as a COVID-19 remedy, his foolhardy disdain for face masks and campaign rally boasts of a preelection cure.
TOTM Congressman Buck’s “Third Way” report offers a compromise between the House Judiciary Committee’s majority report, which proposes sweeping new regulation of tech companies, and the status quo, which . . .
Congressman Buck’s “Third Way” report offers a compromise between the House Judiciary Committee’s majority report, which proposes sweeping new regulation of tech companies, and the status quo, which Buck argues is unfair and insufficient. But though Buck rejects many of the majority’s reports proposals, what he proposes instead would lead to virtually the same outcome via a slightly longer process.
TOTM One of the key recommendations of the House Judiciary Committee’s antitrust report which seems to have bipartisan support (see Rep. Buck’s report) is shifting evidentiary burdens of proof . . .
One of the key recommendations of the House Judiciary Committee’s antitrust report which seems to have bipartisan support (see Rep. Buck’s report) is shifting evidentiary burdens of proof to defendants with “monopoly power.” These recommended changes are aimed at helping antitrust enforcers and private plaintiffs “win” more. The result may well be more convictions, more jury verdicts, more consent decrees, and more settlements, but there is a cost.
TL;DR It comes as no surprise to anyone that illegal conduct occurs online. Unfortunately, the individuals and businesses engaging in illegal activity may avoid detection by using tools that hide their identity. This makes enforcement difficult or even impossible.
It comes as no surprise to anyone that illegal conduct occurs online. Unfortunately, the individuals and businesses engaging in illegal activity may avoid detection by using tools that hide their identity. This makes enforcement difficult or even impossible.
In some cases, there may be targeted solutions available whereby intermediaries are required to record and verify the identity of business customers. In principle, this approach could be used to directly pursue parties actually liable for illicit content with minimal burden on either the platforms, or non-business customers.
Read the full explainer here.
TL;DR The Department of Justice and a few Republican state attorneys general have filed an antitrust suit against Google. But… The DOJ case will struggle.
The Department of Justice and a few Republican state attorneys general have filed an antitrust suit against Google. The complaint alleges that Google’s deals with Android smartphone manufacturers, Apple, and third-party browsers to make Google Search their default general search engine are anticompetitive, harming consumers by denying Google’s competitors the scale and data they need to compete.
The DOJ case will struggle. Nothing in these deals limits the ability of users to switch from Google to another search engine if they want to, and switching is trivially easy. Nor do the deals constrain Android smartphone makers from pre-installing competing search engines alongside Google. In fact, consumers benefit from these deals because they mean lower handset prices and greater incentive for Google to invest in Android. Moreover, the competition among general search engines to secure these default positions isn’t constrained by Google, and that competition should encourage all search providers to invest in their products.
TOTM Nicolas Petit’s insightful and provocative book ends with a chapter on “Big Tech’s Novel Harms,” asking whether antitrust is the appropriate remedy for popular (and . . .
Nicolas Petit’s insightful and provocative book ends with a chapter on “Big Tech’s Novel Harms,” asking whether antitrust is the appropriate remedy for popular (and academic) concerns about privacy, fake news, and hate speech. In each case, he asks whether the alleged harms are caused by a lack of competition among platforms – which could support a case for breaking them up – or by the nature of the underlying technologies and business models. He concludes that these problems are not alleviated (and may even be exacerbated) by applying competition policy and suggests that regulation, not antitrust, is the more appropriate tool for protecting privacy and truth.
Amicus Brief ICLE President Geoffrey A. Manne and amici, scholars of economics and antitrust, submitted this brief to address the broad consensus in the academic literature disfavoring the theory underlying plaintiff’s case—so-called “unilateral refusal to deal” doctrine.
Amici, scholars of economics and antitrust, submit this brief to address the broad consensus in the academic literature disfavoring the theory underlying plaintiff’s case—so-called “unilateral refusal to deal” doctrine. In antitrust parlance, a unilateral refusal to deal describes an allegation that a monopolist refuses to enter into a business relationship with a rival. Plaintiff Viamedia alleges that Comcast refused to allow it to access, on reasonable terms, an important input (Comcast’s Interconnect) for competition in advertising representation services.
Mainstream economists and competition law scholars are skeptical of imposing liability on a monopolist based solely on its choice of business partners. Because the free choice of business dealings is both a fundamental tenet of a free market economy and the mechanism by which markets produce the greatest welfare gains, cases compelling business dealings—even if one of the parties to the deal is a monopolist—should be confined to particularly delineated circumstances. The Seventh Circuit’s analysis, which embraces Viamedia’s theory of liability at face value, is thus out of step with the generally accepted academic view of efficient antitrust enforcement.
In Part A below, amici describe why it is generally inefficient for courts to compel economic actors to deal with one another against their will. Such “solutions” are generally unsound in theory and unworkable in practice, in that they ask judges to operate as public utility regulators over the defendant’s business. Courts should be guarded about taking on such a role.
In Part B, amici describe how scholars have roundly criticized Aspen Skiing, this Court’s most prominent precedent permitting liability for a monopolist’s unilateral refusal to deal. This Court has backed away from Aspen Skiing’s core theory, calling it “at or near the outer boundary of § 2 liability.” The Seventh Circuit erred in failing to take this Court’s cues and confine Aspen Skiing to its unusual facts.
In Part C, amici make clear that, even if delimited situations might warrant antitrust scrutiny of a monopolist’s refusal to deal with a competitor, this case is not one of them. A unilateral refusal to deal should trigger antitrust liability only where a monopolist turns down more profitable dealings with a competitor in an effort to drive a competitor’s exit or to disable its ability to compete, thereby allowing the monopolist to recoup its losses by increasing prices. But Viamedia’s allegations come nowhere near that scenario.
Scholarship Abstract There is growing academic, regulatory, and legislative interest in “dark patterns” – digital design practices that influence user behavior in ways that may not . . .
There is growing academic, regulatory, and legislative interest in “dark patterns” – digital design practices that influence user behavior in ways that may not align with users’ interests. For instance, websites may present information in ways that influence user decisions, or use design elements that make it easier for users to engage in one behavior (e.g., purchasing the items in a shopping cart) than another (e.g., reviewing the items in that shopping cart). The general thrust of this interest is that dark patterns are problematic and require regulatory or legislative action.
While acknowledging that many concerns about dark patterns are legitimate, this Article discusses the more nuanced reality about “patterns”: that design is, simply, hard. All design influences user behavior, sometimes in positive ways, sometimes in negative; sometimes deliberately, sometimes not. This Article argues for a more cautionary approach to addressing the concerns of dark patterns. The most problematic uses of dark patterns almost certainly run afoul of existing consumer protection law. That authority – not new, broader rules – should be our first recourse to addressing these concerns. Beyond that, this is an area where we should both allow the marketplace – including the design professionals working to improve User Interface and User Experience design practices – should be allowed to continue to develop, but with the understanding that Congress and regulators have a keen interest in ensuring that consumer interests are reflected in those practices.
