The Archives

Everything written by Dirk Auer on law, economics, and more

Antitrust’s Uncertain Future Roundup: The Minority Report

[TOTM: The following is part of a digital symposium by TOTM guests and authors on Antitrust’s Uncertain Future: Visions of Competition in the New Regulatory Landscape. Information on the authors and the entire series of posts is available here.] Philip K Dick’s novella “The Minority Report” describes a futuristic world without crime. This state of the ... Antitrust’s Uncertain Future Roundup: The Minority Report

The Woman in the High Office

May 2007, Palo Alto The California sun shone warmly on Eric Schmidt’s face as he stepped out of his car and made his way to have dinner at Madera, a chic Palo Alto restaurant. Dining out was a welcome distraction from the endless succession of strategy meetings with the nitpickers of the law department, which ... The Woman in the High Office

Attention Markets: They Know Them When they See Them

A raft of progressive scholars in recent years have argued that antitrust law remains blind to the emergence of so-called “attention markets,” in which firms compete by converting user attention into advertising revenue. This blindness, the scholars argue, has caused antitrust enforcers to clear harmful mergers in these industries. It certainly appears the argument is ... Attention Markets: They Know Them When they See Them

Assessing Less Restrictive Alternatives and Interbrand Competition in Epic v Apple

The International Center for Law & Economics (ICLE) filed an amicus brief on behalf of itself and 26 distinguished law & economics scholars with the 9th U.S. Circuit Court of Appeals in the hotly anticipated and intensely important Epic Games v Apple case. A fantastic group of attorneys from White & Case generously assisted us ... Assessing Less Restrictive Alternatives and Interbrand Competition in Epic v Apple

10 Things the American Innovation and Choice Online Act Gets Wrong

The Senate Judiciary Committee is set to debate S. 2992, the American Innovation and Choice Online Act (or AICOA) during a markup session Thursday. If passed into law, the bill would force online platforms to treat rivals’ services as they would their own, while ensuring their platforms interoperate seamlessly. The bill marks the culmination of ... 10 Things the American Innovation and Choice Online Act Gets Wrong

Intermediaries: The Hero We Need?

In policy discussions about the digital economy, a background assumption that frequently underlies the discourse is that intermediaries and centralization always and only serve as a cost to consumers, and to society more generally. Thus, one commonly sees arguments that consumers would be better off if they could freely combine products from different trading partners. ... Intermediaries: The Hero We Need?

Merger Control’s Misaligned Incentives

Antitrust policymakers around the world have taken a page out of the Silicon Valley playbook and decided to “move fast and break things.” While the slogan is certainly catchy, applying it to the policymaking world is unfortunate and, ultimately, threatens to harm consumers. Several antitrust authorities in recent months have announced their intention to block ... Merger Control’s Misaligned Incentives

Case closed: Google wins (for now)

The European Commission and its supporters were quick to claim victory following last week’s long-awaited General Court of the European Union ruling in the Google Shopping case. It’s hard to fault them. The judgment is ostensibly an unmitigated win for the Commission, with the court upholding nearly every aspect of its decision.  However, the broader ... Case closed: Google wins (for now)

The Contestable Platform Paradox

Why do digital industries routinely lead to one company having a very large share of the market (at least if one defines markets narrowly)? To anyone familiar with competition policy discussions, the answer might seem obvious: network effects, scale-related economies, and other barriers to entry lead to winner-take-all dynamics in platform industries. Accordingly, it is ... The Contestable Platform Paradox

Why There Needs to Be More, not Less, Consolidation in Video Streaming

Slow and inadequate oversight risks the streaming market going the same route as cable—where consumers have little power, few options, and where consolidation and concentration reign supreme. A number of threats to competition are clear, as discussed in this section, including: (1) market power issues surrounding content and (2) the role of platforms in “gatekeeping” ... Why There Needs to Be More, not Less, Consolidation in Video Streaming

Antitrust Dystopia and Antitrust Nostalgia

The dystopian novel is a powerful literary genre. It has given us such masterpieces as Nineteen Eighty-Four, Brave New World, and Fahrenheit 451. Though these novels often shed light on the risks of contemporary society and the zeitgeist of the era in which they were written, they also almost always systematically overshoot the mark (intentionally ... Antitrust Dystopia and Antitrust Nostalgia

Technology Mergers and the Market for Corporate Control

In recent years, a growing chorus of voices has argued that existing merger rules fail to apprehend competitively significant mergers, either because they fall below existing merger-filing thresholds or because they affect innovation in ways that are purportedly ignored. These fears are particularly acute in the pharmaceutical and tech industries, where several high-profile academic articles ... Technology Mergers and the Market for Corporate Control