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The collection of all scholarly commentary on law, economics, and more

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No, The FCC Should Not Have the Power to Cancel Contracts

Copyright law, ever a sore point in some quarters, has found a new field of battle in the FCC’s recent set-top box proposal. At the request of members of Congress, the Copyright Office recently wrote a rather thorough letter outlining its view of the FCC’s proposal on rightsholders. In sum, the CR’s letter was an ... No, The FCC Should Not Have the Power to Cancel Contracts

Our amicus brief supporting en banc review of the court’s Open Internet Order decision

Last week the International Center for Law & Economics and I filed an amicus brief in the DC Circuit in support of en banc review of the court’s decision to uphold the FCC’s 2015 Open Internet Order. In our previous amicus brief before the panel that initially reviewed the OIO, we argued, among other things, that In order to justify ... Our amicus brief supporting en banc review of the court’s Open Internet Order decision

Global Antitrust Institute Propounds Recommendations for Reform of Japanโ€™s Administrative Surcharge System

On August 6, the Global Antitrust Institute (the GAI, a division of the Antonin Scalia Law School at George Mason University) submitted a filing (GAI filing or filing) in response to the Japan Fair Trade Commission’s (JFTC’s) consultation on reforms to the Japanese system of administrative surcharges assessed for competition law violations (see here for ... Global Antitrust Institute Propounds Recommendations for Reform of Japanโ€™s Administrative Surcharge System

The Supreme Court Should Reassert the Importance of Procedural Gatekeeper Rules to Deter Antitrust Litigation Excesses

Background In addition to reforming substantive antitrust doctrine, the Supreme Court in recent decades succeeded in curbing the unwarranted costs of antitrust litigation by erecting new procedural barriers to highly questionable antitrust suits.  It did this principally through three key “gatekeeper” decisions, Monsanto (1984), Matsushita (1986), and Twombly (2007). Prior to those holdings, bare allegations ... The Supreme Court Should Reassert the Importance of Procedural Gatekeeper Rules to Deter Antitrust Litigation Excesses

Two Helpful Developments Aimed at Curbing Anticompetitive Protectionist Occupational Licensing Restrictions โ€“ Harbingers of Reform?

Background Recently, an increasing amount of scholarship has focused on the excessive costs of occupational licensing, which too frequently serves merely as a protectionist state-created barrier to entry that arbitrarily prevents individuals (and, in particular, low-income individuals) from earning a living in their chosen field.  A 2015 White House report explains that occupational licensing restrictions ... Two Helpful Developments Aimed at Curbing Anticompetitive Protectionist Occupational Licensing Restrictions โ€“ Harbingers of Reform?

Online Privacy Regulation: A Tale of Two U.S. Agencies (and Some Foreign Bureaucrats)

In recent years much ink has been spilled on the problem of online privacy breaches, involving the unauthorized use of personal information transmitted over the Internet.  Internet privacy concerns are warranted.  According to a 2016 National Telecommunications and Information Administration survey of Internet-using households, 19 percent of such households (representing nearly 19 million households) reported ... Online Privacy Regulation: A Tale of Two U.S. Agencies (and Some Foreign Bureaucrats)

Everything is amazing โ€” and no one at the European Commission is happy

Since the European Commission (EC) announced its first inquiry into Google’s business practices in 2010, the company has been the subject of lengthy investigations by courts and competition agencies around the globe. Regulatory authorities in the United States, France, the United Kingdom, Canada, Brazil, and South Korea have all opened and rejected similar antitrust claims. ... Everything is amazing โ€” and no one at the European Commission is happy

Global Antitrust Institute Comments on Chinese Draft Antitrust Guidelines Regarding Disgorgement and Fines Have Broader Implications for Sound Antitrust Enforcement Policy

The Global Antitrust Institute (GAI) at George Mason University Law School (officially the “Antonin Scalia Law School at George Mason University” as of July 1st) is doing an outstanding job at providing sound law and economics-centered advice to foreign governments regarding their proposed antitrust laws and guidelines. The GAI’s latest inspired filing, released on July ... Global Antitrust Institute Comments on Chinese Draft Antitrust Guidelines Regarding Disgorgement and Fines Have Broader Implications for Sound Antitrust Enforcement Policy

The FCCโ€™s proposed broadband privacy rules are still devoid of sufficient evidence or analysis

Yesterday, the International Center for Law & Economics filed reply comments in the docket of the FCC’s Broadband Privacy NPRM. ICLE was joined in its comments by the following scholars of law & economics: Babette E. Boliek, Associate Professor of Law, Pepperdine School of Law Adam Candeub, Professor of Law, Michigan State University College of ... The FCCโ€™s proposed broadband privacy rules are still devoid of sufficient evidence or analysis

The America Invents Act, a First-to-Invent Patent System, and โ€œObama-Birtherโ€ Accusations

About a month ago, I was asked by some friends about the shift from the first-to-invent patent system to a first-to-file patent system in the America Invents Act of 2011 (AIA). I was involved briefly in the policy debates in the spring of 2011 leading up to the enactment of the AIA, and so this ... The America Invents Act, a First-to-Invent Patent System, and โ€œObama-Birtherโ€ Accusations

Trimming the Sails of the Administrative State

In the wake of the recent OIO decision, separation of powers issues should be at the forefront of everyone’s mind. In reaching its decision, the DC Circuit relied upon Chevron to justify its extreme deference to the FCC. The court held, for instance, that Our job is to ensure that an agency has acted “within ... Trimming the Sails of the Administrative State

Critics of health insurance mergers misapply the evidence and misinterpret the market

As regulatory review of the merger between Aetna and Humana hits the homestretch, merger critics have become increasingly vocal in their opposition to the deal. This is particularly true of a subset of healthcare providers concerned about losing bargaining power over insurers. Fortunately for consumers, the merger appears to be well on its way to ... Critics of health insurance mergers misapply the evidence and misinterpret the market