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The Future of FTC Equitable Monetary Relief after AMG Capital Management
The U.S. Supreme Court’s just-published unanimous decision in AMG Capital Management LLC v. FTC—holding that Section 13(b) of the Federal Trade Commission Act does not authorize the commission to obtain court-ordered equitable monetary relief (such as restitution or disgorgement)—is not surprising. Moreover, by dissipating the cloud of litigation uncertainty that has surrounded the FTC’s recent ... The Future of FTC Equitable Monetary Relief after AMG Capital Management
Irish Decision Will Raise Stakes to Resolve Transatlantic Data Trade
We can expect a decision very soon from the High Court of Ireland on last summer’s Irish Data Protection Commission (“IDPC”) decision that placed serious impediments in the transfer data across the Atlantic. That decision, coupled with the July 2020 Court of Justice of the European Union (“CJEU”) decision to invalidate the Privacy Shield agreement ... Irish Decision Will Raise Stakes to Resolve Transatlantic Data Trade
Four Reasons to Reject Neo-Brandeisian Critiques of the Consumer Welfare Approach to Antitrust
In the battle of ideas, it is quite useful to be able to brandish clear and concise debating points in support of a proposition, backed by solid analysis. Toward that end, in a recent primer about antitrust law published by the Mercatus Center, I advance four reasons to reject neo-Brandeisian critiques of the consensus (at ... Four Reasons to Reject Neo-Brandeisian Critiques of the Consumer Welfare Approach to Antitrust
The FTC Did Not โFumble the Futureโ in Its Google Search Investigation
Politico has released a cache of confidential Federal Trade Commission (FTC) documents in connection with a series of articles on the commission’s antitrust probe into Google Search a decade ago. The headline of the first piece in the series argues the FTC “fumbled the future” by failing to follow through on staff recommendations to pursue ... The FTC Did Not โFumble the Futureโ in Its Google Search Investigation
Committee Prepares to Grill Tech CEOS, but It Is the First Amendment That Could Get Torched
In what has become regularly scheduled programming on Capitol Hill, Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey, and Google CEO Sundar Pichai will be subject to yet another round of congressional grilling—this time, about the platforms’ content-moderation policies—during a March 25 joint hearing of two subcommittees of the House Energy and Commerce Committee. The ... Committee Prepares to Grill Tech CEOS, but It Is the First Amendment That Could Get Torched
Understanding the European Commission’s dispute with AstraZeneca
In order to understand the lack of apparent basis for the European Commission’s claims that AstraZeneca is in breach of its contractual obligations to supply it with vaccine doses, it is necessary to understand the difference between stock and flow. If I have 1,000 widgets in my warehouse, and agree to sell 700 of them ... Understanding the European Commission’s dispute with AstraZeneca
The Problem of Data Property Rights
Policy discussions about the use of personal data often have “less is more” as a background assumption; that data is overconsumed relative to some hypothetical optimal baseline. This overriding skepticism has been the backdrop for sweeping new privacy regulations, such as the California Consumer Privacy Act (CCPA) and the EU’s General Data Protection Regulation (GDPR). ... The Problem of Data Property Rights
Congress Should Not Legalize a News Media Cartel
Amazingly enough, at a time when legislative proposals for new antitrust restrictions are rapidly multiplying—see the Competition and Antitrust Law Enforcement Reform Act (CALERA), for example—Congress simultaneously is seriously considering granting antitrust immunity to a price-fixing cartel among members of the newsmedia. This would thereby authorize what the late Justice Antonin Scalia termed “the supreme ... Congress Should Not Legalize a News Media Cartel
Guiding a Post-Brexit UK Trade Liberalization Strategy
In the wake of its departure from the European Union, the United Kingdom will have the opportunity to enter into new free trade agreements (FTAs) with its international trading partners that lower existing tariff and non-tariff barriers. Achieving major welfare-enhancing reductions in trade restrictions will not be easy. Trade negotiations pose significant political sensitivities, such ... Guiding a Post-Brexit UK Trade Liberalization Strategy
Platform Self-Preferencing Can Be Good for Consumers and Even Competitors
Critics of big tech companies like Google and Amazon are increasingly focused on the supposed evils of “self-preferencing.” This refers to when digital platforms like Amazon Marketplace or Google Search, which connect competing services with potential customers or users, also offer (and sometimes prioritize) their own in-house products and services. The objection, raised by several ... Platform Self-Preferencing Can Be Good for Consumers and Even Competitors
Investors and Regulators Can Both Fall for Platform Bubbles
In current discussions of technology markets, few words are heard more often than “platform.” Initial public offering (IPO) prospectuses use “platform” to describe a service that is bound to dominate a digital market. Antitrust regulators use “platform” to describe a service that dominates a digital market or threatens to do so. In either case, “platform” denotes power ... Investors and Regulators Can Both Fall for Platform Bubbles
Antitrust by Fiat
The Competition and Antitrust Law Enforcement Reform Act (CALERA), recently introduced in the U.S. Senate, exhibits a remarkable willingness to cast aside decades of evidentiary standards that courts have developed to uphold the rule of law by precluding factually and economically ungrounded applications of antitrust law. Without those safeguards, antitrust enforcement is prone to be ... Antitrust by Fiat
