You may know that the culprit behind cookie consent banners is not the GDPR but the older ePrivacy Directive, specifically its Article 5(3). The EDPB, a representative body of EU national data protection authorities, has just issued new Guidelines on this law. Setting aside that they arguably didn’t have the authority to issue the Guidelines, this new interpretation is very expansive. They would expect consent for e-mail pixel tracking, URL tracking, and IP tracking. In general, in their view, consent would be required for all Internet communication unless very limited exceptions apply (even more restrictive than under the GDPR).

Read the full piece here.

Section 7 of the Clayton Act prohibits mergers that harm competition in “in any line” of commerce. And, indeed, the Supreme Court’s decisions in Philadelphia National Bank and Topco are often cited on behalf of the proposition that this means any single cognizable market, and that anticompetitive effects in one market cannot be offset by procompetitive effects in another.

That would appear to simplify antitrust analysis, and it certainly can. But as is so often the case in antitrust, apparent simplicity can be confounding in application. Is it really true that harm in any market, however narrow, is grounds to block a merger, whatever its broader effects? Is that the best reading of legal precedent? Is it required? And is it either practicable or desirable?

Read the full piece here.

ICLE Academic Affiliate Giuseppe Colangelo participated in a webinar hosted by the South Korean law firm Bae, Kim, & Lee exploring the proposed Platform Competition Promotion Act. Video of the full webinar is embedded below.

Although it was overshadowed by the Federal Trade Commission (FTC) and U.S. Justice Department’s (DOJ) year-end release of the 2023 merger guidelines, one should also note the abrupt end of the FTC v. Illumina/Grail saga. The saga finished with the FTC’s Dec. 18 press release announcing that Illumina decided on Dec.17 to divest itself of its recently reacquired Grail cancer blood-testing subsidiary.

The press release crowed that the 5^th U.S. Circuit Court of Appeals “issued an opinion in the case finding that there was substantial evidence supporting the Commission’s ruling that the deal was anticompetitive.”

Read the full piece here.

Re: “Regulatory Capital Rule: Large Banking Organizations and Banking Organizations With Significant Trading Activity”; Docket ID OCC–2023–0008 (OCC); Docket No. R–1813, RIN 7100–AG64 (Board); and RIN 3064–AF29 (FDIC)

To Whom It May Concern:

Reducing risk for banks and taxpayers while ensuring capital is accessible and affordable is of paramount importance. The costs of higher capital requirements will be passed down to large swaths of the U.S. economy, such as homebuyers, small businesses, and manufacturers. The Proposal lacks the economic analysis and the data needed to justify the amendments to the bank capital rules. It also circumvents Congress by dismissing the statutory provisions of the Economic Growth, Regulatory Relief, and Consumer  Protection Act (P.L. 115-174). However, regulators have an opportunity to allow banks to participate in insurance and reinsurance-based credit risk transfers to ameliorate the burdensome effects of higher  capital requirements under the Proposal.

Credit risk transfers effectively serve as a private capital buffer to protect taxpayers from underlying credit risks. Under the Proposal banks should be explicitly authorized to use insurance and reinsurance products to offload credit risk and provide relief from heightened capital requirements. The Proposal should allow insurance and reinsurance contracts to be considered as “eligible guarantees” while  insurers and reinsurers should be considered “eligible guarantors.”

The Proposal should not leave standing regulatory barriers that prevent banks from using insurance and  reinsurance as an option. For example, lowering the risk weight for exposures to certain insurance and  reinsurance companies could be an alternative option.[1]

These private-sector products have a proven track record. One paper discusses the potential benefits of  expanding government-sponsored enterprise’s credit risk transfer exposure to reinsurance.[2] The same  benefits could be afforded to the banking sector, if the regulatory framework adequately authorizes it.

Other countries already allow their banks to use insurance and reinsurance credit risk transfers, putting  banks in the U.S. at a competitive disadvantage.

Consumers, taxpayers, and banks do not need another financial crisis that results in another era of  taxpayer-funded bank bailouts. They need tailored regulation that reduces risk and volatility and gives  consumers access to affordable capital—all of which the private sector can bring to bear.

The Proposal should abide by the statutory mandates in P.L. 115-174 by tailoring regulations and ensuring  that banks have the option to use private-sector alternatives to mitigate capital burdens while also enhancing capital allocation to all reaches of the U.S. economy.

Steve Pociask
President/CEO
American Consumer Institute

David Williams
President
Taxpayers Protection Alliance

John Berlau
Director of Finance Policy
Competitive Enterprise Institute

Saulius “Saul” Anuzis
President
60 Plus Association

George Landrith
President
Frontiers for Freedom

Adam Brandon
President
FreedomWorks

Ray Lehmann
Editor In Chief
International Center for Law & Economics (For identification only)

Grover Norquist
President
Americans for Tax Reform

Jerry Theodorou
Director
R Street Institute

Douglas Holtz-Eakin
President
American Action Forum
(For identification only)

James L. Martin
Founder/Chairman
60 Plus Association

Mario H. Lopez
President
Hispanic Leadership Fund

Pete Sepp
President
National Taxpayers Union

Gerard Scimeca
Chairman
Consumer Action for a Strong Economy

[1] 88 FR 64053, 64054.

[2] https://us.milliman.com/en/insight/In-it-for-the-long-haul-A-case-for-the-expanded-use-of-the-GSEs reinsurance-CRT-executions.

As part of a set of “shock therapy” measures introduced to deregulate and stabilize its economy, the Argentinian government led by newly elected President Javier Milei has already adopted an emergency decree (Decreto de Necesidad y Urgencia) that makes broad array of legal changes. Toward the same goal, the government in late December sent up an omnibus bill on Bases and Starting Points for the Freedom of Argentines Act that, among its 600 changes, proposes to modify the current Act for the Defense of Competition (Act No. 27.442).^[1]

Read the full piece here.

In 2005, California proposed legislation to ban the sale of violent video games to minors. This law was a culmination of growing concerns that violent video games were causing children to become more aggressive. Commentators noted that perpetrators of mass shootings, as in the case of Columbine, Heath High School, and Sandy Hook, often played video games considered to be violent such as Doom, Grand Theft Auto, and Call of Duty.1 Studies on the connection between video games and aggression came pouring out. In response, policymakers began to introduce laws banning or otherwise regulating the sale of violent video games to minors.

This would seem to be the ideal result. Lawmakers were able to come together and pass a law that addressed the issue at hand. The only problem is that there is little to no evidence that video games, even violent ones, lead to increases in aggressive behavior let alone that they are a driving factor behind school shootings.

Read the full piece here.

Despite Biden’s attempts to “end fossil fuel” some basic economic analysis indicates his efforts are not in line with what the public wants. If you think back to your Econ 101 class, you’ll probably remember something called revealed preference.

This basic insight of economics says that people’s actions in a market place are a much better indicator of what is going on in their heads than asking them in a poll. Someone might tell you they like Biden’s attempts to kill off reliable, inexpensive energy, but when the rubber meets the road, their purchasing decisions say otherwise.

Read the full piece here.

The scene was deeply troubling. Hundreds of college students proclaimed that Hamas’ October 7, 2023, assault on Israeli civilians was a heroic and justified act of liberation. It confirmed a level of ignorance engendered by decades of decay in our colleges and universities. But equally troubling is the fact that the United States Congress immediately intervened. If there is any social institution, along with religion, that should be insulated from political meddling, it is higher education.

Not long after October 7, the presidents of three of America’s most prominent universities were called onto the Congressional carpet by the House Committee on Education and the Workforce. When asked to explain their failure to condemn Hamas’ atrocities, all three offered what has been widely panned as evasive and inadequate responses. On December 13, the House of Representatives adopted House Resolution 927, “Condemning antisemitism on University campuses and the testimony of the University Presidents.” The resolution was approved in a 303-126 vote, with 84 Democrats and 219 Republicans in favor. The resolution condemned the presidents by name and called for their resignation.

Read the full piece here.