ICLE Senior Scholar Mikolaj Barczentewicz took part in a virtual panel hosted by Arthur Cox LLP on the European Data Protection Board’s recent opinion concerning whether “pay or consent” platform models comply with the EU’s General Data Protection Regulation (GDPR). Video of the full panel is embedded below.

Abstract

Understanding how institutions, technology and social welfare coevolve is essential to understanding economic and social development, and the evolution of privacy alongside institutions and technology in the modern era sheds valuable light on this question. Privacy has both private individual value and public social value, even as privacy rights tradeoff directly with the ability of the government to enforce the law. We deem this inherent defect in the government’s incentives to protect privacy the “institutional privacy dilemma,” a defect which results in a greater role for technological innovation and individual choice to preserve rights to privacy alongside the public institutions that both protect and infringe it. In the digital age, technological change has led to greater private use of encryption to preserve individuals and organizations’ rights to privacy. Yet, this technology itself poses a challenge for law enforcement, for encryption shields those with innocent and criminal motives alike. Unsurprisingly then, governments have sought to weaken or eliminate encryption in the face of the privacy dilemma, with an emerging set of technological solutions preserving private actors’ rights to a measure of privacy while applying zero-knowledge proofs to simultaneously satisfy legitimate enforcement objectives. Our case study of applications of zero-knowledge proofs and privacy institutions illuminates how a coevolving blend of polycentric forces governs social welfare in practice and emphasizes how individual demand for rights the government is especially likely to infringe plays an essential governance role.

The Federal Trade Commission (FTC) and Congress are showing renewed interest in a Great Depression-era law, the Robinson-Patman Act, that discourages sales discounts. This is bad news for hard-strapped American consumers, who have had to cope with prices that have risen more than 20% since February 2020. As such, reinvigorated enforcement of the RPA, a statute that was designed to protect less-efficient small businesses from vigorous competition, appears hard to justify. The FTC may wish to consider the major downsides of RPA prosecutions before it takes action.

Read the full piece here.

Artificial intelligence is in the public-policy spotlight. In October 2023, the Biden administration issued its Presidential Executive Order on AI, which directed federal agencies to cooperate in protecting the public from potential AI-related harms. President Joe Biden said in his March 2024 State of the Union Address that government enforcers will crack down on the use of AI to facilitate illegal price fixing. Congress is in the preliminary stages of considering legislation that could pave the way for future regulation of AI.

Read the full piece here.

Abstract

Using a unique private dataset from one of the largest consumer litigation financing firms in the U.S., we are the first to explore the impact of states’ regulatory activity (statutory or judicial) on funders’ behavior and consumers’ welfare. Our comprehensive dataset includes data on over 105,000 third party funding agreements from 2000 throughout 2020 and data we compiled ourselves from court decisions, state legislation, and regulatory actions.

Read at SSRN.

Are things looking up at the Federal Trade Commission (FTC)? Maybe, kinda, sorta? At the margin? That’s the agency spin.

Before we get to the new public relations, let’s take a step back. Much ink has been spilled, and many pixels specified, over the performance of FTC management. Not a little of it has attended survey evidence collected by the U.S. Office of Personnel Management and analyzed by the Partnership for Public Service for their annual rankings of the Best Places to Work in the Federal Government.® See, e.g., former FTC Commissioner Christine Wilson in the Wall Street Journal (here); Daniel Kaufman, a longtime FTC veteran and former acting director of its Bureau of Consumer Protection (here); the Washington Post (here); Bloomberg Law (here); your aging scribe (here); et cetera, et cetera.

Read the full piece here.

ICLE Senior Scholar Lazar Radic joined a digital panel hosted by the Centre for Competition Law and Economics to discuss India’s draft Digital Competition Bill, which proposes ex-ante rules for “systematically significant digital enterprises” (SSDEs). The panel discussed the draft bill’s aim sand objectives and how the regulations would affect India’s digital ecosystem. Video of the full panel is embedded below.

The U.S. Justice Department (DOJ) announced yesterday that it has filed suit, along with 29 states and the District of Columbia, charging Live Nation Entertainment Inc. and its subsidiary Ticketmaster LLC with monopolizing the live-events industry in violation of Section 2 of the Sherman Act.

The suit, filed in the U.S. District Court for the Southern District of New York, alleges that Live Nation’s so-called “flywheel” (its bundle of concert promotions, artist management, venue ownership, and ticketing services) allows it to extend its dominance in one market into the other adjacent markets. It seeks both a jury trial and structural relief, with U.S. Attorney General Merrick Garland declaring that: “It is time to break up Live Nation-Ticketmaster.”

Read the full piece here.

Abstract

Have the U.S. News & World Report law school rankings become irrelevant? The ostensible purpose of the US News law school rankings is to give prospective law students convenient and reliable information about the relative quality of law schools and help them decide which law school to attend. Law schools care about the US News rankings because prospective law students care about the US News rankings. A ranking increase means more prestige and better credentialed students, while a ranking decrease means less prestige and students with worse credentials. Accordingly, law schools are jealous of their US News ranking.

Do prospective law students actually care about the US News rankings anymore? We compared changes in law school US News rankings to changes in prospective law student preferences the following year. Those variables should be strongly positively correlated. If a school’s US News ranking increases, prospective law students should prefer it more the following year, and if it decreases, they should prefer it less. But in fact, they were at best very weakly positively correlated, and often they are weakly negatively correlated. In other words, prospective law students appear to be largely indifferent to changes in a school’s US News ranking. This suggests that prospective law students are getting information about which law school to attend from someplace other than US News. And it also suggests that law schools can safely stop paying attention to the US News rankings, because their customers don’t care.