Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Catalog to locate a working paper.

Research Paper Series

Recent Working Papers:


Legal Market Decartelization

6-2924 | Milan Markovic, Nuno Garoupa

ABSTRACT:

American lawyers’ grip on the legal market is receding. Scholars and policymakers increasingly agree that the public has little to lose and potentially much to gain from legal market decartelization-the weakening of the lawyers' monopoly over the legal services market. Harkening to deregulatory initiatives abroad and in Arizona and Utah, reformers contend that removing restrictions on the corporate delivery of legal services and unauthorized practice of law will slash costs and expand access to justice.

Regulating Clearing and Settlement: A Comparative Take

6-2024 | Paolo Saguato

ABSTRACT:

What happens after a trade in securities or derivatives is executed? What makes it possible for the transaction to be finalized? Financial markets rely on the smooth operations of post-trading clearing and settlement infrastructures to support the functioning of the markets and to foster efficiency and promote stability in the financial system.

This Chapter explains the role that clearing and settlement infrastructures play in securities and derivatives markets; analyses the regulatory framework in the US and in the EU, with a particular focus on the international initiatives to support cross-border coordination and market linkages; and ultimately raises a few issues for discussion about challenges that post-trading markets currently face.

Three Bad Ideas About Race in America

6-2024 | David Bernstein

ABSTRACT:

In this Essay, prepared for a symposium honoring Brown v. Board of Education’s eightieth anniversary, I examine and critique three influential propositions regarding race promoted by some academic theorists and pundits.

Part I discusses and rejects the notion that differences in socioeconomic status among different groups can be best explained by the power relationships groups have with the dominant white majority.

Part II considers the claim that racial categories define collective actors who inevitably have common interests and outlooks. This Part concludes that this idea is flawed and perhaps incoherent.

Part III addresses the proposition that white Americans should be encouraged to cultivate a “white racial consciousness” to encouraging whites to recognize their privilege and become “antiracists.” Part III concludes that such encouragement is both wrongheaded and dangerous.

Those who promote the ideas discussed and critiqued in this essay share a several premises: pessimism about the US overcoming its racist history; what I consider a naïve belief in an identitarianism shaped by antiracist ideology as the best way to mitigate racism; and a concomitant belief that preserving the salience of existing socially (and legally) constructed racial categories is both inevitable and mostly desirable.

These premises, in turn, are ultimately based on a skepticism of or hostility to the ability of liberalism to overcome racism. In other words, they represent a rejection of the optimistic racial liberalism prevalent among civil rights activists when Brown was decided. 

Private Equity Buyouts are Part of the Competitive Process in the Market for Corporate Control: Global Antitrust Institute Comment on the DOJ-FTC-HHS Request for Information on Consolidation in Health Care

6-2024 | Alexander Raskovich, Douglas Ginsburg, Tad Lipsky, Dario da Silva Oliveira Neto, John Yun

ABSTRACT:

We focus on aspects of the Agencies' request for information (RFI) that are unrelated to competition issues. The RFI’s motivating idea seems to be that an increase in profits post-acquisition implies consumer harm. Thus, a private equity leveraged buyout, by sharpening a target firm’s profit-seeking, tends to harm consumers. This view is misguided. Competition is not a zero-sum game and profits do not necessarily reflect antitrust harm. On the contrary, increased profits more commonly flow from a firm’s improved ability to address consumer interests, thereby winning business from rivals. Private equity funds often seek to acquire underperforming firms, reorganize them to improve their performance, and resell them at a premium reflective of that improved performance. None of this is a proper concern of the antitrust agencies unless the acquired firm’s improved performance flows from a lessening of competition in a relevant antitrust market. If the antitrust agencies were to hinder acquisitions by private equity buyers despite the absence of likely anticompetitive effects, the Agencies would unwittingly lessen competition in the market for corporate control and thereby hinder potential improvements in competition in downstream product markets.

AI Now

5-2024 | Rachelle Holmes Perkins

ABSTRACT:

Legal scholars have made important explorations into the opportunities and challenges of generative artificial intelligence within legal education and the practice of law. This Article adds to this literature by directly addressing members of the legal academy. As a collective, law professors, who are responsible for cultivating the knowledge and skills of the next generation of lawyers, are seemingly adopting a laissez faire posture towards the advent of generative artificial intelligence. In stark contrast to law practitioners, law professors generally have displayed a lack of urgency in responding to the repercussions of this emerging technology.

This Article contends that all law professors have an inescapable duty to understand generative artificial intelligence. This obligation stems from the pivotal role faculty play on three distinct but interconnected dimensions: pedagogy, scholarship, and governance. No law faculty are exempt from this mandate. All are entrusted with responsibilities that intersect with at least one, if not all three dimensions, whether they are teaching, research, clinical, or administrative faculty. It is also not dependent on whether professors are inclined, or disinclined, to integrate artificial intelligence into their own courses or scholarship. The urgency of the mandate derives from the critical and complex role law professors have in the development of lawyers and architecture of the legal field.

The Law and Political Economy Project: A Critical Analysis

5-2024 | Todd Zywicki

ABSTRACT:

The Yale Law and Political Economy (“LPE”) Project began in 2017 following the surprising election of Donald Trump as President. In that time, LPE has increasingly emerged into an intellectual and ideological movement particularly at elite law schools involving the efforts of numerous leading academics, substantial foundation backing, and its own dedicated journal. Lina Kahn, an early contributor to the movement while still a student, has gone on to become Chair of the Federal Trade Commission.

LPE calls for a deconstruction of what it sees as the dominant intellectual paradigm in law over the past several decades, namely the influence of law and economics in law and regulation and a retrenchment of redistributionist policies. Underlying this critique is an appeal to the so-called “Golden Age of American Capitalism” that spanned the period 1945-1973. Building on the foundation of French economist Thomas Piketty’s book Capital in the Twenty-First Century, LPE scholars view this period as one of steady economic growth, widely-shared prosperity, and economic stability, that suddenly ended around 1973 for no clear reason and was replaced with what they alternately characterize “Neoliberal” worldview or “Twentieth-Century Consensus.”

This article critiques this narrative. As is demonstrated, U.S. policymakers turned away from the post-War consensus because of a myriad of clear reasons—“stagflation” (simultaneous high rates of inflation and unemployment combined with slow economic growth), declining global economic competitiveness, and the increasing financial burden of resisting Soviet aggression during the Cold War. It was widely recognized that the economic successes of the post-War era resulted largely from the United States’s dominant global economic position following the decimation of World War II and that the economy succeeded despite, rather than because of the various factors extolled by LPE thinkers. Fears of real economic decline and its consequences prompted a groundswell of support for modernization of regulatory and antitrust policies.

The Fidelity of ‘Originalist’ Justices Is About to Be Tested

4-2024 | Nelson Lund

ABSTRACT:

This short essay explains why two cases involving gun rights — United States v. Rahimi and Garland v. Cargill — pose a serious test of the Supreme Court’s declared commitment to the principles of originalism.

Brown, Democracy, and Foot Voting

5-2024 | Ilya Somin

ABSTRACT:

Traditional assessments of Brown’s relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens’ ability to “vote with their feet” as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.

Part I of the article summarizes the relationship between foot voting and ballot box voting, and how the former has important advantages over the latter as a mechanism of political choice. Relative to ballot box voting, foot voting offers individuals and families greater opportunities to make decisive, well-informed choices. It also has special advantages for minority groups, including Blacks.

Part II considers traditional attempts to reconcile Brown and democracy, through arguments that the decision was actually “representation-reinforcing.” While each has its merits, they also have significant limitations. Among other flaws, they often do not apply well to the Brown case itself, which famously originated in a challenge to segregation in Topeka, Kansas, a state in which – unlike most of the South – Blacks had long had the right to vote.

Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice. Among other advantages, the foot-voting rationale for Brown applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others, or not.

In Part IV, I discuss the implications of the foot-voting justification of Brown for judicial review of other policies that inhibit foot voting, particularly in cases where those policies have a history of illicit racial motivations. The most significant of these is exclusionary zoning.

Comment of the Global Antitrust Institute on the Brazilian Ministry of Finance, Department of Economic Reform Request for Contributions: Economic and Competitive Aspects of Digital Platforms

5-2024 | Tad Lipsky, Douglas Ginsburg, Alexander Raskovich, Dario da Silva Oliveira Neto

ABSTRACT:

The GAI responds to Brazil’s Ministry of Finance, which invited comment on the Economic and Competitive Aspects of Digital Platforms Report, considering the adoption of new ex ante sectoral regulations for digital platform companies. The Comment cautioned that the adoption of such regulation is fraught with risks of discouraging innovation and limiting the competitiveness of the digital sector in Brazil, to the detriment of the economy and consumers. Digital industries are extremely innovative and dynamic. There is a well-established antitrust enforcement system in Brazil that is specifically intended to maintain free competition within the private sector by examining instances of alleged anticompetitive conduct case-by-case, in order to assure that only anticompetitive behavior is prevented or discouraged, while beneficial or neutral conduct is permitted without unnecessary legal intervention. The report identifies no persuasive evidence or analysis to indicate that the antitrust system is falling short, nor that a novel ex ante sectoral regulatory scheme would be superior to continuing reliance on antitrust enforcement. The GAI Comment advises that the proposed new regulatory system contains inherent rigidities that are likely to impose a variety of economic costs and would likely prove very difficult to reform. Specific proposals to place strict prohibitions on any form of “self-preferencing”, or to compel digital firms to establish mandatory “interoperability” between their platforms and other firms -- even direct competitors – will place extensive, complex and ongoing regulatory responsibilities on agencies ill-quipped to carry them out. Accordingly, the GAI urged the Ministry to be extremely cautious in considering any proposal for novel ex ante sectoral regulation of digital platforms, and to carefully evaluate available evidence and apply sound and balanced economic analysis to anticipate the likely consequences of any effort to supplant Brazil’s existing system of antitrust enforcement.

Comentário Do Global Antitrust Institute Para a Tomada De Subsídios Da Secretaria De Reformas Econômicas – Ministério Da Fazenda Do Brasil — Aspectos Econômicos E Concorrenciais Das Plataformas Digitais

5-2024 | Tad Lipsky, Douglas Ginsburg, Alexander Raskovich, Dario da Silva Oliveira Neto

ABSTRACT:

O GAI responde ao Ministério da Fazenda do Brasil, o qual solicitou comentários sobre a Tomada de Subsídios sobre Aspectos Econômicos e Concorrenciais de Plataformas Digitais, considerando a adoção de novas regulações setoriais ex ante para empresas de plataformas digitais. O Comentário advertiu que a adoção de tal regulação está repleta de riscos de desestimular a inovação e limitar a competitividade do setor digital no Brasil, em detrimento da economia e dos consumidores. As indústrias digitais são extremamente inovadoras e dinâmicas. Há um sistema bem estabelecido de enforcement da lei antitruste no Brasil que se destina a manter a livre concorrência no setor privado, examinando supostas condutas anticompetitivas caso a caso, a fim de garantir que apenas o comportamento anticompetitivo seja evitado ou desencorajado, enquanto a conduta benéfica ou neutra seja permitida sem a intervenção legal desnecessária. A Tomada de Subsídios não identifica nenhuma evidência ou análise persuasiva que indique que o sistema antitruste esteja fracassando, nem que uma nova estrutura regulatória setorial ex ante fosse superior à atuação contínua do enforcement antitruste. O Comentário do GAI esclarece que o novo sistema regulatório proposto contém uma rigidez inerente que provavelmente imporá uma variedade de custos econômicos e que será difícil de reformar. Propostas específicas para impor proibições rigorosas a qualquer forma de “self-preferencing”, ou para obrigar as empresas digitais a estabeleceram “interoperabilidade” obrigatória entre suas plataformas e outras empresas – até mesmo concorrentes diretos – imporão extensas, complexas e contínuas responsabilidades regulatórias em órgãos mal equipados para realizá-las. Dessa forma, o GAI recomendou que o Ministério fosse extremamente cauteloso ao considerar qualquer proposta de nova regulação setorial ex ante de plataformas digitais, e que avaliasse cuidadosamente as evidências disponíveis e aplicasse uma sólida e equilibrada análise econômica para antecipar as prováveis consequências de qualquer esforço para suplantar o sistema existente do enforcement da legislação antitruste no Brasil.

Consumer Privacy, Information Sharing, and Consumer Finance: Tradeoffs and Opportunities

5-2024 | Todd Zywicki

ABSTRACT:

Concerns over the ownership, use, security, and flows of consumer data information are not new. Yet the dominance of the Internet and electronic payments has elevated such concerns to a high level. Traditionally there was perceived to be a tradeoff between the flow of information necessary for the consumer financial system to work well (such as to solve information asymmetries necessary in order to make credit-granting decisions) and consumer control over their data and keeping their information private. Data security approaches historically pursued a state “fortress” model that rested on the ability of consumers to keep private a small amount of information the consumer uniquely knew, such as a PIN or password.

Today, however, it is becoming apparent that this static model is no longer viable and can be expected to grow less viable with the growth of artificial intelligence and machine-learning. But such approaches have costs as well—not only are they often more cumbersome, when the fortress walls are breached these systems can be slower to adapt and can result in increased harm to consumers on the back end. Some people have suggested that we respond to these emergent threats by trying to build taller and thicker fortress walls and other static, such as the use of biometric identification. The approach suggested here, by contrast, attempts to model what a more dynamic approach to information security would look like and how such a system would be dependent on more data flows rather than less. I suggest some areas of current and proposed regulation that should be reexamined in light of the analysis presented here.

Sustaining Precarious Authority: Polish-Style Self-Limits in America’s First Decades

4-2024 | Jeremy Rabkin

ABSTRACT:

In the ratification debate over the U.S. Constitution, Poland’s constitution was regularly cited as a negative example—a constitutional form to avoid. But the most alert of the American Founders understood that even under a new federal constitution, American politics would have to contend with centrifugal forces analogous (in some ways) with those faced by the Poland of that era. In response to this challenge, early American statesmen developed self-limiting conventions in regard to tariffs, spending and foreign policy commitments—remedies analogous (in some ways) with those that operated in Poland before partition.

Introduction to SEC v. Panuwat: Understanding “Shadow” Insider Trading

4-2024 | J.W. Verret

ABSTRACT:

In the groundbreaking case SEC v. Panuwat, the Securities and Exchange Commission (SEC) successfully pioneered a legal theory referred to as “shadow” insider trading. This concept extends traditional insider trading paradigms to situations where an individual, privy to material non-public information (MNPI) regarding one company, capitalizes on that knowledge to trade securities in another company. The case against Matthew Panuwat, a former executive at Medivation, illuminates this novel application of the law.

According to the SEC’s complaint, Panuwat, an employee of pharmaceutical company Medivation, became aware that Medivation would soon be bought out. Just a few minutes after learning that information, Panuwat commenced purchasing out-of-the-money, short-term call options in another company, Incyte. The SEC argued that Incyte was a closely comparable company to Medivation, and therefore, these trades in Incyte constitute prohibited insider trading.

It is difficult to overstate the expansion Panuwat represents for potential liability for insider trading. To be sure, the defense bar will attack this unfair and unwise regulation-through-litigation, and the defense bar will be joined by academics, public interest groups, and supporters in the business community. In the meantime, every entity and individual involved in the capital markets—from public companies to retail traders—need to take head of the increased risks and perils that comes with trading in a post-Panuwat market. For companies, this includes at least re-evaluating insider trading policies and educating directors, officers, and employees on the new landscape. And securities lawyers need to adjust their advice to clients and strategies for defending insider trading investigations, regulatory actions, and prosecutions.

Ultimately, Congress needs to step in and define by legislation what is and is not illegal insider trading, which it has never done to date. One can debate what should and should not be permitted, but Congressional action would provide the best opportunity for consideration of the competing considerations of the scope and contours of the insider trading laws.

House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet’s hearing “Artificial Intelligence and Intellectual Property: Part III – IP Protection for AI-Assisted Inventions and Creative Works.”

4-2024 | Sandra Aistars

ABSTRACT:

This testimony discusses how copyright should be applied to works created with the aid of Generative Artificial Intelligence (GAI). When determining whether to register claims of copyright for creative works made by humans with the use of GAI we should begin by looking to the acts of the human creator not at the outputs of the GAI. If a human has met the minimal creativity requirements set out by the Supreme Court in Feist Publications, Inc., v. Rural Telephone Service Co., then the question is whether the interaction with the GAI undermines a claim to human authorship or merely extends an authentic human vision for a work. Applying this approach, at least some creative works authored by humans using the assistance of GAI will be protectable by copyright.

In Feist, the Supreme Court called originality “the touchstone” of copyright and distinguished creative acts from mere sweat-of-the-brow effort. However, the Court did not set a particularly high bar, requiring only that authors demonstrate a minimal level of creativity. The Court also stated that “[t]he mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author.” This means that determining originality must turn on the creative acts of the author—in the context of AI assisted creative works, the question is what creative acts has the human author taken? More specifically, the proper inquiry is whether the human author has used GAI as an artist uses any other tool or material to bring their creative vision to life or has the use of GAI served to substitute for the artist’s own creativity. Put another way, has the artist deployed GAI or engaged it authentically and in their own voice—in a manner that demonstrates the artist is staying true to their creative vision? The full testimony explores this question in greater depth.

Further, while liability for training of GAIs must be resolved, denying humans IP protection to otherwise protectable works that use GAIs is counterproductive. It will relegate legitimate human works to the category of synthetic data. Additionally, denying copyright to humans who create works with the assistance of GAIs if the work is otherwise sufficiently original to qualify for protection will do nothing to instill respect for IP rights in those who develop and train GAIs. To the contrary, doing so will merely disenfranchise creative workers from being able to claim copyright in expressive works based on the media/tools they choose to work with—relegating their works to the category of synthetic data and foreclosing to these human artists the opportunity to control or be compensated for use of their works. Such works would then immediately become available for GAI training without the need for any permissions from the human creator who used the GAI to make the creative work. This would exploit creative workers on both the input side (by not protecting copyright in the initial materials the GAI is trained on) and on the output side (by not protecting copyright in the expressive works created by humans using the GAI in their authorship).

Finally, the Copyright Office currently requires authors to “disclose and disclaim” more than de minimis use of GAI in creative works. This approach causes problems for creators because it requires the creator to exercise control and foreseeability over a device they have not manufactured, trained or deployed into the marketplace. Instead, the relevant inquiry should be whether the creator is executing their own intellectual conceptions.

A Report Card on the Impact of Europe’s Privacy Regulation (GDPR) on Digital Markets

4-2024 | John Yun

ABSTRACT:

This Article will evaluate the consequences of the General Data Protection Regulation (“GDPR”) implemented by the European Union (“EU”) in 2018. Despite its aim to bolster user privacy, empirical evidence from thirty-one studies suggests a nuanced impact on market dynamics. While GDPR modestly enhanced user data protection, it also triggered adverse effects, including diminished startup activity, innovation, and increased market concentration. Further, this Article will uncover a complex narrative where gains in privacy are offset by compliance costs disproportionately affecting smaller firms. This Article will also highlight the challenges of regulating highly innovative markets, which is particularly important given subsequent EU regulations, such as the Digital Markets Act (“DMA”) and Digital Services Act (“DSA”). As other jurisdictions consider similar privacy regulations, the GDPR experience is a cautionary tale.

The Puzzling Persistence of Capital Punishment

4- | Craig Lerner

ABSTRACT:

For over 250 years, Western intellectuals have been pronouncing capital punishment a barbarity doomed to be swept into the dustbin of history. The death penalty, we have repeatedly been told, is an “anachronism” inconsistent with the spirit of the modern age—a relic that would, in a generation or two, fade away. What is distinctive about recent decades is the confidence and monolithic quality of elite opinion, at least in the West. There is a swelling confidence that the death penalty is, at last, at the cusp of extinction.

This Article questions the descriptive claim that the death penalty is dying, either in the United States or in the world at large. Simply counting the number of nations that have technically abolished the death penalty fails to capture the apparent permanence of capital punishment. Many non-Western civilizations retain the death penalty with a vigor that surprises and disappoints Western intellectuals. And even within the United States, given the prohibitive cost of imposing a death sentence, it is remarkable how determined so many Americans are to continue to execute the worst of criminals.

As argued in this Article, the simplest answer to the puzzle of capital punishment’s persistence is that the retributive impulse is, as Justice Potter Stewart observed, “part of the nature of man.” The answer is so obvious that what is puzzling is not the persistence of the death penalty but that some people regard this persistence as puzzling. The dismay of modern Western intellectuals at the recurring failure of abolitionist efforts points to defining features of that intelligentsia. Since the Enlightenment, many intellectuals have regarded nature as a weak and even nonexistent constraint on human progress. It is from this perspective that the persistence of capital punishment, so seemingly rooted in human nature, comes to sight as such a puzzling disappointment.

A Mosaic Approach for Challenging SEC Crypto Regulation: The Major Questions Doctrine and Staff Accounting Bulletin 121

3-2024 | Megan Daye, J.W. Verret

ABSTRACT:

The regulatory scheme for the crypto industry can be described as uncertain, at best. The lack of regulatory clarity and agency over reliance on enforcement actions in the place of proper rulemaking will stifle the industry in U.S. markets. The SEC’s haphazard regulatory approach has created more questions and uncertainty. Staff Accounting Bulletin 121 (“SAB 121”) is a prime example of how the SEC’s desperate grasp for regulatory authority implicates the major questions doctrine and the Administrative Procedures Act. This Article analyzes current crypto litigation alongside SAB 121. It identifies a pattern of circumventing the Administrative Procedures Act and violations of the major questions doctrine in crypto actions taken by the SEC. This Article concludes that the current regulatory approach will likely cause irrevocable harm to the crypto industry and procedures under the Administrative Procedures Act. Judicial intervention is required, but piece-meal litigations pose a further risk to the industry. Courts should review and under-stand the entire regulatory scheme, not just the coin or regulation at issue, to fully appreciate the major questions doctrine and procedural implications posed by agencies in their rushed and ineffective approach at regulating the crypto industry.

Let the Fastest Runners Sprint: Comment of the Global Antitrust Institute on the European Commission’s Calls for Contributions on Competition in Virtual Worlds and Generative AI

3-2024 | Tad Lipsky, Douglas Ginsburg, Bruce Kobayashi, Alexander Raskovich, John Yun

ABSTRACT:

The European Commission invited public input on competition in virtual worlds and generative artificial intelligence. The GAI commended the Commission for studying competition in these young and dynamic fields. The GAI suggested that such a study should not seek to make fixed judgments, to justify presumptions of anticompetitive effects or to impose preconceived rules. The legal standards and mechanisms of competition enforcement have shown abundant capacity to address novel technologies and business practices and may be relied upon until a persuasive case for change emerges as a result of specific enforcement experiences. The GAI described the long history in the United States of displacing competition with ex ante economic regulation in key sectors, resulting in serious long-run restraints on competition, innovation and economic performance. Such regulation—involving transportation, energy, communications and other sectors—was abolished in some sectors and severely curtailed in others as the result of a broad consensus among scholars and policymakers—recognizing the negative results—that has largely prevailed since the late 1970s. The GAI also suggested that the Commission—which has allowed only 31 days for public input and has stated that it "may organize a workshop" on the subject in the second quarter of 2024, should consider additional steps to advance its inquiry, including seeking additional public input. This would allow a more searching study in light of the complex and rapidly evolving circumstances prevailing in these sectors.

Does Privacy Want to Unravel?

3-2024 | James Cooper

ABSTRACT:

Firms are not shy about disclosing their low prices to attract consumers, but they seem to hesitate when it comes to their data practices. If data is increasingly the price we pay, this is surprising. Before we pronounce the meager evidence of unraveling as a symptom of a market failure, however, we need further investigation. We need to know which equilibrium we are in — one in which disclosure is consistent with consumer preferences; a lemons market, in which asymmetric information plagues consumers and firms and keeps them from the privacy they want; or something in between. That is, we need to know if privacy even wants to unravel. Regulation might be appropriate when (1) there is broad agreement that the conduct at issue is harmful, and (2) the government has sufficient information to craft a correct standard. For all other cases, it is preferable to at least attempt a market allocation of data practices. This could be accomplished by providing the FTC with tools to transform what consumers perceive as cheap talk into credible commitments. Chief among them would be the ability to levy penalties sufficient to deter deception over privacy, while also signaling a reluctance to seek monetary remedies for good faith attempts to make privacy claims more understandable to consumers.

How Epic v. Apple Operationalizes Ohio v. Amex

2-2024 | John Yun

ABSTRACT:

The Supreme Court’s landmark decision in Ohio v. American Express (“Amex”) remains central to the enforcement of antitrust laws involving digital markets. Specifically, the decision established a framework to assess business conduct involving transactional, multisided platforms from both an economic and legal perspective. At its crux, the Court in Amex integrated both the relevant market and competitive effects analysis across the two distinct groups who interact on the Amex platform, that is, cardholders and merchants. This unified, integrated approach has been controversial, however. The primary debate is whether the Court’s ruling places an undue burden on plaintiffs under the rule of reason paradigm to meet its burden of production to establish harm to competition. Enter Epic v. Apple (“Epic”): a case involving the legality of various Apple policies governing its iOS App Store, which, like Amex, is a transactional, multisided platform. While both the district court and the Ninth Circuit largely ruled in favor of Apple over Epic, these decisions are of broader interest for their fidelity to Amex. A careful review of the decisions reveals that the Epic courts operationalized Amex in a practical, sensible way. The courts did not engage in extensive balancing across developers and users as some critics of Amex contended would be required. Ultimately, the courts in Epic (a) considered evidence of effects across both groups on the platform and (b) gave equal weight to both the procompetitive and anticompetitive effects evidence, which, this Article contends, are the essential elements of the Amex precedent. Relatedly, the Epic decisions illustrate that the burden of production on plaintiffs in multisided platform cases is not higher than in cases involving regular, single-sided markets. Additionally, both parties, whether litigating single-sided or multi-sided markets, are fully incentivized to bring evidence to bear on all aspects of the case. Finally, this Article details how the integrated Amex approach deftly avoids potential issues involving the out-of-market effects doctrine in antitrust, which limits what type of effects courts can consider in assessing conduct.


View More Faculty Working Papers