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Bloomberg Law – ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by Bloomberg Law in a story about the U.S. Supreme Court’s decisions in Axon Enterprise v. FTC and SEC v. Cochran. You can read full story here.

“The court has been increasingly skeptical of broad grants of authority, attentive to separation of powers issues, dialing back the scope of congressional delegation to agencies and the like,” said Gus Hurwitz, the director of law and economics programming at the International Center for Law and Economics. “If you want some sense of what is likely to happen with future cases resulting from this—and generally the court’s jurisprudence—look to that broader trend.”

…Now that its use of in-house judges can more easily face constitutional challenges in court, the FTC may look more to district courts in filing lawsuits to block mergers, Hurwitz said.

USA Today – ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by USA Today in a story about Facebook’s legal responsibility to remove recalled products from Facebook Marketplace. You can read full story here.

The Consumer Product Safety Improvement Act of 2008 makes it illegal to sell a recalled product. But Justin “Gus” Hurwitz, a professor of law at the University of Nebraska-Lincoln who focuses on regulation in the tech world, said that because Facebook is merely facilitating the sale, there is “no legal framework that would require Facebook to do anything about recalled products.”

Lead Stories – ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by the website Lead Stories in a piece fact-checking claims in a recent video by Bitcoin-mining company Riot Platforms about the crypto-currency’s carbon footprint. You can read full story here.

Justin (Gus) Hurwitz, a University of Nebraska College of Law professor and director of the Nebraska Governance and Technology Center, told Lead Stories in an April 12, 2023, email that “it’s a bit tricky to know how to assess this video.” He continued:

“I hope it’s a satirical response to the NY Times story that it is shared as a response to. That story has been interpreted to suggest that bitcoin mining facilities produce smoggy skies immediately around the mining facilities. In this respect, the video makes a fair, tongue-in-cheek, point. Bitcoin mining uses computers, which are powered by electricity and do not themselves produce CO2 directly. In this sense, they are just as zero-emission as an electric vehicle. As a response to an allegation that a bitcoin mining facility would turn the skies around it smoggy, the video makes a fair point. …

My basic take on the video is that I hope it’s satire and sarcasm. I can’t believe that the company that produced it has such a flawed understanding of how computers work — and the fact that it was shared in response to the NY Times story suggests that it was, in fact, a sarcastic response to that story. Of course, this is one of the challenges of the Internet: the video can be shared and viewed on its own, without that context. The video, seen without that context, certainly seems epically stupid. (To use a term of art.)”

PORTLAND, Ore. (April 12, 2023) – Advocates for legislation that would remake the online display-advertising market—most recently introduced by Sen. Mike Lee (R-Utah) as Advertising Middlemen Endangering Rigorous Internet Competition Accountability (AMERICA) Act—often claim the changes they seek are based on analogous rules used in the regulation of securities markets.

But a new white paper from the International Center for Law & Economics demonstrates that such analogies are based on fundamental misunderstandings of how securities regulation works and why it exists.

The AMERICA Act and Lee’s earlier Competition and Transparency in Digital Advertising Act (CTDA) both propose to bar companies that own a digital-advertising exchange with more than $20 billion in annual ad revenue from also providing services to buyers and sellers of ads, or from selling advertising space themselves. This requirement for “physical separation” could force the breakup of vertically integrated digital-advertising platforms like Google.

The bills also would impose fiduciary-like duties on those who buy and sell online ads for others, which has been compared to “best interests” standards imposed on stockbrokers.

But according to the paper’s author, ICLE Academic Affiliate M. Todd Henderson of the University of Chicago, there isn’t an analogous requirement for physical separation in securities law. Many stockbrokers also own exchanges where stocks are traded.

Moreover, rules that stock trades be executed at the best-available price are imposed precisely because vertical integration is common. Such rules nonetheless do not significantly limit trading behavior, Henderson argues, and could not be imported to the “adtech” market without erecting a massive regulatory bureaucracy to police them.

“Whatever the facts on the ground in stock markets, any analogy to them is misplaced, because it fails to appreciate the purpose of stock-market regulation,” Henderson writes. “The sale of stocks is regulated in the way that it is because of the centrality of stocks to the savings and investments of everyday Americans, as well as the various vital roles stocks and stock markets play in the capitalist economy.”

“Stock-market regulation protects the nerve center of the economy. Ads are not stocks, and any claim that they should be regulated as stocks is deeply misleading,” he added.

The full paper can be downloaded here. 

Conversable Economist – ICLE Scholars Brian Albrecht, Dirk Auer, Eric Fruits, and Geoffrey A. Manne were cited by the Conversable Economist blog in a post about ICLE’s white paper on “doomsday mergers.” You can read full piece here.

There are often substantial controversies over whether a merger should be allowed to happen, but then relatively little follow-up after the event. Of course, if a merger was blocked, then it’s hard to know whether it would have led to good or bad outcomes. But when a controversial merger is allowed, it’s fairly straightforward to see if the negative predictions actually happened.

Brian Albrecht, Dirk Auer, Eric Fruits, and  Geoffrey A. Manne take on this task in “Doomsday Mergers: A Retrospective Study of False Alarms” (International Center for Law and Economics, March 22, 2023). Here’s their summary…

Americans for Tax Reform – ICLE research on rewards-card programs was cited by Americans for Tax Reform in a piece about Florida’s proposed intervention in consumer-credit-card transactions. You can read full piece here.

According to data cited by the International Center for Law and Economics (ICLE), “86% of credit cardholders have active rewards cards, including 77% of cardholders with a household income of less than $50,000.”

DC Business Daily – An ICLE report on so-called “doomsday” merger predictions was the subject of a story in DC Business Daily. You can read full piece here.

New reports by the International Center for Law and Economics (ICLE) show that many high-profile mergers have been highly criticized, saying they will do major harm to both competition and consumers.

According to the International Center for Law and Economics, critics like Federal Trade Commission Chair Lina Khan said that Amazon’s acquisition of Whole Foods in 2017 would crush competitors in physical retail.

Bloomberg Law – ICLE Senior Scholar Daniel Gilman was quoted by Bloomberg Law in a story about a challenge before the 7th U.S. Circuit Court of Appeals regarding so-called “no-poach” agreements among McDonald’s franchisees. You can read full piece here.

Daniel Gilman, senior scholar at the International Center for Law & Economics, doesn’t believe this type of agreement is unlawful, but said if the courts don’t allow it franchises will figure out ways to deal with that, as some of them have already.

…Current FTC leadership wants to get at both vertical and horizontal constraints, Gilman, a former FTC attorney advisor, said, but “we’re not looking at an FTC or DOJ investigation” here.

The FTC is “trying to develop this new position and blend what have long been considered distinct routes to analyzing vertical and horizontal restraints, so part of this may be planting the flag for them. But I don’t buy it,” Gilman said.

National Review – ICLE Scholars Brian Albrecht, Dirk Auer, Eric Fruits, and Geoffrey A. Manne were cited by National Review in an item about ICLE’s white paper on “doomsday mergers.” You can read full piece here.

Economists at the International Center for Law and Economics have written a paper looking back at a different species of false alarm that we often hear from the media: doomsday mergers.

Brian Albrecht, Dirk Auer, Eric Fruits, and Geoffrey Manne recount the predictions made about six mergers that were allowed to take place despite considerable backlash from progressives. They looked at Amazon’s purchase of Whole Foods, consolidation in the beer industry, Bayer’s purchase of Monsanto, Google’s purchase of Fitbit, Facebook’s purchase of Instagram and WhatsApp, and Ticketmaster’s merger with Live Nation.

“Our retrospective analysis shows that many of the alarmist predictions of the past were completely untethered from prevailing market realities, as well as far removed from the outcomes that emerged after the mergers,” they write.

They look at indicators such as stock prices, market share, and financial performance to evaluate the claims made by progressives before the mergers took place. The paper has copious citations to news reports, academic papers, and relevant statistics to back up their analysis.