After the oral arguments in Twitter v. Taamneh, Geoffrey Manne, Kristian Stout, and I spilled a lot of ink thinking through the law & economics of intermediary liability and how to draw lines when it comes to social-media companies’ responsibility to prevent online harms stemming from illegal conduct on their platforms. With the Supreme Court’s recent decision in Twitter v. Taamneh, it is worth revisiting that post to see what we got right, as well as what the opinion could mean for future First Amendment cases—particularly those concerning Texas and Florida’s common-carriage laws and other challenges to the bounds of Section 230 more generally.

Read the full piece here.

One of the biggest names in economics, Daron Acemoglu, recently joined the mess that is Twitter. He wasted no time in throwing out big ideas for discussion and immediately getting tons of, let us say, spirited replies.

One of Acemoglu’s threads involved a discussion of F.A. Hayek’s famous essay “The Use of Knowledge in Society,” wherein Hayek questions central planners’ ability to acquire and utilize such knowledge. Echoing many other commentators, Acemoglu asks: can supercomputers and artificial intelligence get around Hayek’s concerns?

Read the full piece here.

Abstract

Implicit bias concepts are increasingly influential in the law. Washington and California have adopted jury selection rules that use implicit bias ideas to reduce the showing needed to reject a peremptory challenge. Under Washington’s rule, a prima facie showing of bias may be made by showing that an objective observer, who is deemed to know that implicit (unconscious) bias has resulted in the unfair exclusion of jurors, could view race or ethnicity as a factor in the challenge. Once such a showing is made, the challenge is denied.

In two important cases, the Washington Supreme Court has applied implicit bias concepts from the peremptory challenge context to post-verdict challenges that argued that a verdict was tainted by bias. Under the rule in these cases, if a prima facie showing of bias is made the burden shifts to the prevailing party to prove that the verdict was not tainted by bias. The premises Washington has constructed from implicit bias reasoning are so strong that the burden of proof will likely be decisive in such cases. There is no non-arbitrary way to use such premises to distinguish cases in which conduct is problematic from those in which it is not.

The first case, State v. Berhe, led to an extraordinary hearing in which jurors were sworn and examined about their conduct during deliberations. This article uses the transcript of that hearing to assess whether implicit bias concepts will prove useful in such post-verdict challenges. It argues that at least IAT-style association data will not prove useful in assessing post-verdict challenges because such challenges pose a problem of attribution, not association. The question is whether to attribute a juror’s conduct to their disposition or to other factors, such as the trial record. Implicit bias reasoning may skew such analysis by encouraging judges to favor dispositional explanations over contextual explanations.

ICLE President Geoff Manne joined the American Bar Association’s Our Curious Amalgam podcast to debate Spencer Waller of the Loyola University Chicago School of Law over the core purpose of antitrust and whether it should be solely concerned with economic efficiency, or also used as a tool to uphold and promote democratic values. The full conversation is embedded below.

ICLE Chief Economist Brian Albrecht joined the Human Action Podcast to discuss the work of economists Armen Alchian and Robert Lucas. Video of the full conversation is embedded below.

Summary of Argument

Courts should approach predatory pricing claims with caution because price cutting is central to competition and because false positive errors can chill competition to the detriment of economic efficiency and consumer welfare.

Total average system cost is not an appropriate price floor for finding predation; the district court was right to reject a fixed-cost standard. This Court should reject claims based on the allegedly exclusionary effect of pricing not shown to be below short-run incremental cost. Moreover, a contention that Duke Energy’s discount or rebate structure was “exclusionary” should not change the analysis, because the timing of price reductions should not be relevant.

Brexit was supposed to free the United Kingdom from Brussels’ heavy-handed regulation and red tape. But dreams of a Singapore-on-the-Thames are slowly giving way to ill-considered regulation that threatens to erode Britain’s position as one of the world’s leading tech hubs.

The UK Competition and Markets Authority’s recent decision to block the merger of Microsoft and game-maker Activision-Blizzard offers a case in point. Less than a month after the CMA formally announced its opposition to the deal, the European Commission has thrown a spanner in the works. Looking at the same facts, the commission—no paragon of free-market thinking—concluded the merger would benefit competition and consumers, paving the way for it to move ahead in the Old Continent.

Read the full piece here.

Some may refer to this as the Roundup Formerly Known as the FTC Roundup. If you recorded yourself while reading out loud, and your name is Dove, that is what it sounds like when doves sigh.

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Abstract

It is widely assumed that platform technology markets are inherently prone to converge on monopoly outcomes in which a single firm or a handful of firms enjoy market power due to a combination of network effects and switching costs. This assumption supports both proposed and enacted regulatory interventions under competition law that place significant limitations on a wide range of practices by platform incumbents. In this paper, I revisit this market power assumption from theoretical and empirical perspectives. As a matter of theory, informed by selected real-world examples, I show that the conditions under which a platform incumbent can plausibly exercise market power are substantially more demanding than is commonly assumed. As a matter of empirics, I provide evidence from the food-delivery and cloud-computing markets, showing that widespread attributions of market power to leading platforms in these markets lack persuasive evidentiary support. Contrary to conventional wisdom, both theory and evidence cast significant doubt on the standard view that platform ecosystems are prone to converge on entrenched monopolies that justify preemptive intervention by competition regulators.