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Gus Hurwitz headshot

Director of Law & Economics Programs

Justin (Gus) Hurwitz is an assistant professor of law and co-director of the Space, Cyber, and Telecom Law program at the University of Nebraska College of Law. His work builds on his background in law, technology, and economics to consider the interface between law and technology and the role of regulation in high-tech industries.

Data Security

Duty to Deal & Essential Facilities

Scholarship

Digital Duty to Deal, Data Portability, and Interoperability

Abstract

In this chapter, we discuss the development of the duty to deal doctrine in antitrust law, its application to the digital economy, and proposals for specific duties to deal, such as data portability and interoperability.

Part I outlines the development of the duty to deal doctrine in antitrust law. The development of the doctrine in the United States will be compared to that in the European Union. Popular economic justifications for the doctrine and key cases will be explored. Part II then situates this doctrine within the digital economy, focusing on the importance of getting the contours of the doctrine right in that economy. As we shall see, the law and economics of the duty to deal caution against its application to dynamic, digital markets. This will be illustrated by looking at cases where it has been applied. Part III focuses on two specific categories of duties to deal: data portability and interoperability.