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ICLE Senior Scholar Lazar Radic was quoted by ExchangeWire in a story about how other jurisdictions are looking to copy the EU’s Digital Markets Act. You can read the full piece here.

ICLE’s Lazar Radic calls what the DMA is trying to achieve ‘the Brussels effect’ – “a regulatory contagion from the EU to other places. This would turn it into something like what you have called “the world’s digital police,” at least within the boundaries of the conduct covered by the DMA,” he explains.

…For advertisers, adapting to managing additional silos can further complicate an already tricky task. With the fragmentation of tracking and profiling individuals at scale without relying on third-party data, which is frequently stored in third-party cookies, many marketers are already grappling with this challenge. Radic describes this as “…clearly designed to drive a wedge in gatekeepers’ ad tech model, preventing them from cross-using data between a core platform services and any other service provided by the gatekeeper – for example, between an online search engine, a messaging app, and a social networking app.”

…“Gatekeeper’s ad tech might become less effective, and their ads less relevant. This hurts gatekeepers. In turn, given gatekeepers’ loss of control of advertising on their own platforms, end-users might be exposed to more irrelevant, random advertising noise from third-parties,” explains Radic. “This hurts consumers. The DMA could also impact gatekeepers’ incentives to invest in their platform, seeing as how the regulation purposefully facilitates third parties from free-riding on those investments. This, in the end, hurts everyone.”

PORTLAND, Ore. (Mar. 27, 2024) – The International Center for Law & Economics (ICLE) is excited to announce its second year of Speakers Series Grants to support law & economics scholarship on campus. These grants allow recipients to bring several speakers to their campus over the course of the academic year to present current scholarship.

In evaluating proposals for the 2024-2025 academic year, we will place special emphasis on bringing new voices into the law & economics community, including both more junior scholars and scholars from cognate disciplines such as business and engineering.

Proposals should include a list of potential invited speakers, a copy of your CV, and a short paragraph noting reasons you believe such a series will be well-received at your school, any challenges you anticipate facing, and opportunities you may have for speakers to engage with non-law faculty or students.

This program is modeled on workshop series common in law schools. That is not, however, intended to prescribe a format necessary to receive support through this program. We welcome applications from both law and non-law faculty, and encourage faculty to submit applications for support of programs that “break the mold” described in this call for proposals.

Typical awards will be $10,000. Awards will be made as a gift to the recipient’s school, restricted for the use of a speakers series with speakers identified at the sole discretion of the award recipient. Speakers invited to this series should be given the same level of support afforded to any other speaker invited to your school (e.g., in terms of room availability, promotion, scheduling, etc). The precise administration of funds shall be at the discretion of the recipient. ICLE would anticipate the funds being used to support speakers’ travel and hotel costs, food and promotional materials, and a group dinner with the speaker. ICLE does not allow overhead to be charged against gifts of this size.

At the end of each semester, award recipients should report to ICLE the names and affiliations of speakers and the number of faculty and students who attended their presentations (including their disciplines if they are not all law faculty and students). At the end of the academic year, award recipients should report to ICLE the amount of unspent funds.

ICLE is planning to execute these series starting in Fall 2024, but is open to proposals that envision an earlier timeline. 

Please submit your proposal to [email protected] by Friday, May 31, 2024.

A Truth on the Market piece by ICLE Senior Scholar Daniel J. Gilman, President Geoffrey A. Manne, and Chief Economist Brian Albrecht was cited by the Information Technology & Innovation Foundation in a blog post about labor monopsony effects in merger enforcement. You can read the full piece here.

Finally, there is another problem with the Guidelines’ turn to labor: Benefits to labor can coincide with harms to consumers, creating challenges in merger reviews. Indeed, Gilman et al. highlight this conflict when they ask, “Are mergers to be challenged—and, if challenged, blocked—if they harm workers in a single labor market, even if they are procompetitive (and pro-consumer) in the relevant product market?” In other words, will the agencies be able to conduct effective merger reviews when a merger raises labor market concentration—which may or may not hurt workers—but reduces prices for consumers? Moreover, even if a merger does not result in a conflict between worker and consumer interests, it could result in conflicts between two labor markets that can further hinder effective merger review. Gilman et al. also highlight this when they assert that merger benefits in one labor market could offset the losses in another, resulting in net gains for the overall labor market. In this case, the agencies will also face another challenge in effectively conducting merger reviews when they have to balance gains and losses between labor markets.

ICLE Academic Affiliate John Lopatka was quoted by Bloomberg Law in a story about U.S. Justice Department efforts to regulate artificial intelligence. You can read the full piece here.

AI “doesn’t easily fall within one agency’s jurisdiction as opposed to the other,” said John Lopatka, a law professor at Penn State focused on antitrust. “So I think what you would hear from DOJ is, look, this is a deal with Google, and we’re the ones that are litigating Google—so we should be the ones investigating a Google Gemini deal.”

…While a licensing deal of this nature wouldn’t automatically trigger antitrust scrutiny, Lopatka said he would be “stunned” if regulators didn’t at least launch a probe.

…Before news of the companies’ AI talks broke, Lopatka said he would have expected the Justice Department to propose a remedy in the Google search case aimed at suppressing the growth of Google and allowing Apple to emerge as a search competitor. But an AI agreement could force the DOJ to rethink its approach to breaking up a search monopoly, Lopatka added.

An AI deal between the tech behemoths could block competition in the search market, which would raise red flags for federal regulators in the Google search case, Lopatka said.

“The government would want to be cognizant of any relationship when proposing remedies,” Lopatka said.

ICLE Chief Economist Brian Albrecht was quoted by The Dispatch in a story about the U.S. Justice Department’s antitrust lawsuit against Apple. You can read the full piece here.

Other observers, however, warn against dismissing the DOJ’s entire suit as frivolous. “It is a complex case,” Brian Albrecht, the chief economist for the International Center for Law and Economics, told TMD. “Anyone who mocks [it] as obviously ridiculous overall, is overstating it.”

ICLE Academic Affiliate Adam Mossoff was quoted by IPWatchdog in a story about intellectual-property rights being chosen as the topic for the 2024-2025 debate competition by the National Federation of State High School Associations (NFHS). You can read the full piece here.

“This is a clear indication that innovators and creators are succeeding in changing the public narrative about the role of IP rights in innovation economies and flourishing societies,” said Adam Mossoff, Professor of Law at Antonin Scalia School of Law at George Mason University and a member of the board of directors of the Center for Intellectual Property Understanding (CIPU).

“I competed in debate when I was in high school,” continued Professor Mossoff, an innovation policy expert. “It’s an excellent way for students to learn evidence-based advocacy as opposed to the name-calling and junk science that have dominated discussions about IP. ­­There is overwhelming evidence that IP rights are a launch pad for growing innovation economies and creative cultures.”

ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by the New York Times in a story about the U.S. Justice Department’s antitrust case against Apple. You can read the full thing here.

And federal prosecutors are explicitly connecting the Apple lawsuit to that earlier fight. “They’re really presenting this case as a successor to that: Microsoft 2.0,” said Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey Law School.

…Others say the Microsoft case’s legacy is less clear. Hurwitz told DealBook that the reality was more complicated. Netscape failed in part because a botched upgrade turned off users, while Microsoft missed out on the dawn of internet 2.0 services because of bad strategic decisions.

“In terms of actual industrial changes, I think the case yielded very little,” Hurwitz said.

…“That might open up opportunities for competitors,” Hurwitz said. But he added, “That’s not necessarily the best way of facilitating competition in the market.” 

ICLE research was cited by Americans for Tax Reform in a recent letter about the Credit Card Competition Act. You can read the full piece here.

The mandates in the bill are so costly that more than $75 billion in rewards that consumers receive every year would largely disappear. According to the International Center for Law & Economics, “86% of credit cardholders have active rewards cards, including 77% of cardholders with a household income of less than $50,000.” The disappearance of rewards would likely harm minority communities and small businesses.

ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by The New York Times in an item about the U.S. Justice Department’s antitrust case against Apple. You can read the full piece here.

But some experts think this lawsuit is a stretch. Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey Law School, told DealBook that antitrust policy traditionally hasn’t focused on issues like porting consumer data to different platforms.

He added that while prosecutors were seeking to help some consumers — those who favor switching devices — the lawsuit could end up hurting others. Users of iOS “derive a lot of value from their closed ecosystem,” he said. “Apple users like the closed ecosystem and the benefits that confers on them.