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Arlington Stadium in Arlington, Texas, originally opened as a minor-league stadium in 1965, but by 1972, it became home to the Texas Rangers of baseball's American League. Although it was an architecturally undistinguished facility, Arlington Stadium shows how civic leaders in Arlington, alongside boosters in nearby Dallas and Fort Worth, utilized organized baseball's legal doctrine of territorial rights to unify the metro area's baseball market within a centrally located suburb. Quickly growing Arlington thus became home to a stadium that might one day host a big-league team, although in the meantime, it could host a minor-league team. This article tells the story of Arlington Stadium's planning and construction, as well as the Rangers' relocation from Washington, D.C., as a way to understand how a metro area used organized baseball's idiosyncratic rules, based on a longstanding federal antitrust exemption, to build a suburban home for a major-league team. [ABSTRACT FROM AUTHOR]

This study examines how antitrust law adoptions affect horizontal merger and acquisition outcomes. Using the staggered introduction of competition laws in 20 countries, we find antitrust regulation decreases acquirers' 5-day cumulative abnormal returns surrounding horizontal merger announcements. A decrease in deal value, target book assets, and industry peers' announcement returns are consistent with the market power hypothesis. Exploiting antitrust law adoptions addresses a downward bias to an estimated effect of antitrust enforcement. The potential bias from heterogeneous treatment effects does not nullify our results. Overall, antitrust policies seem to deter post-merger monopolistic gains, potentially improving customer welfare. [ABSTRACT FROM AUTHOR]

Anti-cartel policy evaluation traditionally relies on quantifying the harm caused by detected cartels as a measure of its effectiveness. This approach implicitly 'assumes a positive correlation between the detection effect and the societal value of antitrust policy. This paper argues that there may be a salience problem when conducting anti-cartel policy, potentially leading to biased assessments. Using a two-period model, we show that, under certain conditions likely to be met, a larger detection effect is associated with a smaller welfare gain from anti-cartel policy. This counterintuitive result arises because antitrust policy's welfare gains extend beyond the detection effect and include the deterrence effect, which is amplified by effective anti-cartel policy but can reduce the detection effect, i.e., there is usually a negative relationship between the detection and the deterrence effect. Consequently, contrary to common practice, metrics to assess anti-cartel policies must explicitly incorporate the deterrence effect. Failing to consider such effect may lead to erroneous conclusions, where an increase in the detection effect may mistakenly be associated with an improvement in anti-cartel policy. Considering these findings, this paper underscores the necessity for a comprehensive assessment framework that acknowledges the interplay between the detection and deterrence effects. [ABSTRACT FROM AUTHOR]

The United States Supreme Court in United States v. Paramount and the subsequent Paramount Decrees in 1948 were the federal government's original attempt to address the consolidation and concentration of the movie production, distribution, and exhibition markets. The government reversed its decision in 2020 because of both changes in the film industry and a change in the legal application of antitrust law. There are two schools of antitrust law thought: structuralism and the consumer welfare standard. The former is concerned with market concentration and supports the Paramount Decrees, and the latter is concerned with prices for consumers and is skeptical of government interference. The Paramount decision was imposed before the widespread adoption of both the rule of reason and consumer welfare standard by federal courts, and its implementation was a cause for the collapse of the Hollywood Golden Age. Its repeal in 2020 was an acknowledgment that antitrust law recognizes the procompetitive efficiencies created by vertical integration and a recognition that the filmmaking industry has significantly more means of exhibition using over-the-top media. Even if the streaming service market concentrates, it is unlikely to lead to increased consumer prices and should not warrant antitrust enforcement. [ABSTRACT FROM AUTHOR]

Copyright of Právník is the property of Czech Academy of Sciences, Institute of State & Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Wirtschaft und Wettbewerb is the property of Fachmedien Otto Schmidt KG and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Wirtschaft und Wettbewerb is the property of Fachmedien Otto Schmidt KG and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Recently designated as an EU Digital Markets Act “gatekeeper”, this article examines Google’s history of engaging in exclusionary anti-competitive practices in Europe, leveraging its dominance from one online market to another, adversely affecting consumers and competition along the way, and raises the question whether current fining levels are a sufficient deterrent to large online platforms who generate hundreds of billions of dollars every year. [ABSTRACT FROM AUTHOR]

Digital platforms can take a ‘treacherous turn’, where they initially set advantageous terms and conditions only to reverse them once demand has become sticky. Transaction costs economics has long recognised the harm caused by such opportunism, especially in the presence of relation‐specific investments. Such investments are the norm in the platform economy, where opportunism is being rediscovered under labels such as ‘open early, closed late’. Despite economic recognition of the phenomenon, however, antitrust law is lagging behind. Its micro‐rules of liability, for example on excessive pricing and refusal to supply, do not adequately capture treacherous turn strategies, neither do related rules from contract law or sectoral regulation. Hence, we propose adopting a targeted quasi‐per se rule to fill the treacherous gap. Unless the platform can advance a plausible business justification, the rule imposes a remedy freezing the previous terms in place. [ABSTRACT FROM AUTHOR]

This article explores whether pay-for-delay agreements between originator and generic pharmaceutical companies constitute anticompetitive practices under Article 101(1) of the Treaty on the Functioning of the European Union (TFEU). These agreements, where originator firms compensate generics to delay market entry, raise concerns about competition law violations. The European Commission has investigated such cases extensively, imposing fines on companies like Generics UK, Lundbeck, and Servier. The Court of Justice of the European Union (CJEU) has found certain agreements inherently restrictive, focusing on the role of value transfers. While the Commission favours case-by-case assessments, its analyses often lack depth. This research evaluates the criteria for anticompetitive behavior under Article 101 TFEU, examining key issues such as restriction by object, patents as entry barriers, and transfer value. It argues for a nuanced approach that balances legal and economic considerations to promote genuine competition and innovation in the pharmaceutical sector. [ABSTRACT FROM AUTHOR]

The paper examines effective remedies for abuse of dominance in digital markets by analyzing tools including Regulation 1/2003 and the Digital Markets Act (DMA) 2022. It evaluates both radical remedies proposed by commentators and DMA obligations, applying them to seven digital market abuse cases. While primarily focusing on Article 102 TFEU as the main remedy mechanism, the paper also considers DMA's role in addressing these infringements.The study covers both pricing and non-pricing infringements from past Article 102 TFEU cases. Drawing from existing literature, it assesses potential remedies, their benefits, and implementation costs. The paper specifically examines Articles 5 and 6 of the DMA to determine the most effective remedies for the seven identified infringements.A key finding is that digital market cases require individualized assessment for implementing effective remedies, rather than a one-size-fits-all approach. [ABSTRACT FROM AUTHOR]

This note reviews the decision of the Employment Appeal Tribunal in Bicknell (1) The British Medical Association (2) v NHS Nottingham and Nottinghamshire Integrated Commissioning Board and its consideration of the limitation of the scope of the Transfer of Undertakings (Protection of Employment) Regulations 2006 to 'economic activity'. This limitation, when combined with the exclusion from the application of the transfer of undertakings legislation of 'public administrative' reorganisations, creates a public–private divide—a 'public sector exclusion zone'—in the application of the transfer of undertakings regime. This note argues that the doubts expressed by the EAT in Bicknell about the decision in Nicholls & Anor v London Borough of Croydon & Ors —in which it was held that the purchasing and commission of goods and services do not constitute an economic activity for the purposes of the transfer legislation—are well founded. The approach adopted in Nicholls , which was based on EU competition law authorities addressing the entirely different context of the regulation of competition, should therefore be revisited. Applying a purposive TUPE-specific approach, the purchasing and commission of goods and services should, depending on the factual matrix, be treated as capable of constituting an economic activity for the purposes of TUPE. This approach would, consistent with the objectives of the transfer legislation, enable the (better) protection of the employment of those engaged in purchasing and commissioning activities, whether or not conducted under the broad umbrella of the public sector, who are affected by reorganisations and similar exercises otherwise satisfying the requirements of a TUPE transfer. [ABSTRACT FROM AUTHOR]

The revised Horizontal Guidelines provide a new framework to assess sustainability agreements. This article explores two pivotal aspects in the Horizontal Guidelines: individual non-use value benefits and collective benefits. By portraying sustainability as an economic rather than a moral benefit, the analysis delves into the foundations and methodologies used in these benefits and their fit into the existing caselaw, exposing shortfalls and controversies in their application. Building on this discussion, the article further explores the legitimacy of competition authorities to exercise distributional functions and decide on consumer preferences. The article overcomes the notion of sustainability as a non-economic goal in competition law, reveals key challenges in the future application of the Guidelines and aligns the economic discussion with the legal reality. [ABSTRACT FROM AUTHOR]

While its relationship with competition law remains under debate, the Digital Markets Act (DMA) concerns fundamental rights, public values, and the control of power in digital markets. In limiting the scope of the freedom to conduct a business, the DMA seeks to safeguard conflicting and colliding fundamental rights and public interests. For the DMA to gain recognition as a legitimate and future-proof governance framework for digital markets, it must be based on participatory democracy. Meaningful participation in procedures that could impact one's position is a fundamental element of a democratic legal system governed by the rule of law. Although the DMA permits some form of dialogue, participatory democracy is constrained in scope, a bilateral logic rather than a multi-stakeholder approach is employed, and much is left to the discretion of the enforcer. Using a law-oriented and constitutional approach, we elaborate on how participatory democracy, engagement, and deliberation can be enhanced. [ABSTRACT FROM AUTHOR]

In July 2023, the Court of Justice of the European Union (CJEU) issued a landmark judgment at the intersection of competition law and data privacy law. This article delves into two pivotal aspects: firstly, the recognition of privacy-related harms as factors within the realm of competition law considerations; and secondly, an examination of the role of competition law authorities in addressing infringements related to data protection. The analysis emphasizes the practical significance of the CJEU decision, asserting its importance rather than controversy. The judgment provides clarity on how regulatory rules can influence competition assessments and highlights the potential for competition authorities to consider the broader market and regulatory landscape without exceeding their mandate.The Facebook case, while not exhaustive, marks a crucial step in elucidating how regulatory rules influence competition assessments and how competition authorities can navigate broader market and regulatory considerations within their mandate. [ABSTRACT FROM AUTHOR]

Trade book publishing is characterised by authors with weaker bargaining power than the commercial intermediaries, including publishers and distributors. One key solution representing the empowerment of authors is self-publishing works, thereby cutting out the gatekeeper. However, self-publication has failed to improve the position of authors: their incomes continue to fall across the sector. Using social network analysis as well as industry practices, this article examines UK trade book publishing dynamics. It argues that the reason for the self-publication route's 'underperformance' is structural, explained by a realistic view of the publishing sector and the relationships it entails. The self- publishing author is shown to have little information and bargaining power, while self-published books are subject to inherent commercial limitations. The wider structural impact of market concentration in book distribution is clarified. The findings suggest that solutions need to combine copyright with competition law interventions as bargaining and market issues require different but coherently designed remedies. [ABSTRACT FROM AUTHOR]

In 2023, the Indian Parliament introduced amendments to the Competition Act, 2002. The primary focus of these amendments is to provide regulatory certainty, ensure faster market correction, and provide a trust-based business environment in India. These amendments also aim to give the Competition Commission of India (CCI) adequate power to ensure that no anti-competitive practices are undertaken in India. A plethora of amendments have been enacted, and one of the key amendments impacting M&A is the introduction of the Deal Value Threshold (DVT) while retaining the asset and turnover test. The rationale for this amendment is to ensure digital markets are covered within the ambit of DVT and to ensure that no anti-competitive M&A deals are undertaken in the digital market space. The impact of the new additional threshold in India has been analyzed, and the loopholes in the DVT framework have been highlighted. The impact of DVT on M&A deals undertaken in India has been showcased. In addition, solutions have been provided that can be adopted by the CCI in order to plug the loopholes in this new framework to make it comprehensive. [ABSTRACT FROM AUTHOR]

For more than two decades, a burgeoning "right-to-repair" movement has been underway in the United States, evolving from a nascent effort to democratize automobile repair into a cultural and legal force with ramifications in numerous industries. At the highest level, the right-to-repair movement aims to require manufacturers to provide consumers and independent repair providers with replacement parts, repair manuals, and other such materials used to fix products they own. Although activists have lobbied for the right to repair automobiles since at least 2001, right-to-repair legislation began to gain momentum over the past decade and has expanded from automobiles to other consumer goods, including cell phones, appliances, and other electronic devices, as well as agricultural and medical equipment. [ABSTRACT FROM AUTHOR]

Copyright of Ius et Praxis (07172877) is the property of Universidad de Talca and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Moving away from the effects-based approach in EU competition law, the Digital Markets Act introduces renewed requisite legal standards that differ from probabilistic standards of proof. Ideally, this concept should also shape the European Commission's initial enforcement actions and its judicial review in the EU courts. The paper critically examines the legal standards that the European Commission established in its first set of designation decisions issued in September 2023. It spotlights two significant actions by the Commission: the delineation of core platform services and the consideration of the undertakings' rebuttals of the presumption of a gatekeeper position deriving from the application of the quantitative thresholds. The paper reveals a disjointed approach by the Commission building upon the idea of the regulation's plasticity. [ABSTRACT FROM AUTHOR]

The digital public sphere's significance, amplified by the COVID-19 pandemic, highlighted concerns on how the concentration of market power can shape social interactions. Antitrust, in particular, has faced calls for reform to better serve democratic goals in this context. However, experts disagree on whether antitrust should be geared towards achieving these objectives. This paper discusses antitrust's potential in fostering a healthier digital public sphere, particularly through the analysis of deceptive patterns deployed by social media platforms and their competition impact. It first discusses how the concept of deceptive patterns should be conceived—as there is no clear definition universally adopted in either academia or enforcement circles. It then moves on to explore ways to align traditional consumer-welfare antitrust analysis with this topic, by reviewing existing deceptive patterns' literature, looking at existing taxonomies and how they can help clarify effects on consumers, markets, and society, with a narrowed focus on social media. Lastly, it attempts to offer a framework for the assessment of deceptive patterns in social media by antitrust authorities. [ABSTRACT FROM AUTHOR]

The Directorate General for Competition at the European Commission enforces competition law in the areas of antitrust, merger control, and State aid. After providing a general presentation of the role of the Chief Competition Economist's team (CET), this article surveys some of the main developments at the Directorate General for Competition over 2023/2024. In particular, the article reviews: the revised "Market Definition Notice" for competition cases; the State aid decision that approved public support for the construction of a new nuclear power plant in Czechia; and the CET's analytical approach to a number of major mergers that were proposed during 2023 but then abandoned by the companies. [ABSTRACT FROM AUTHOR]

As part of an ongoing review of Australia's Competition and Consumer Act (CCA) by Treasury, consideration is being given to removing the exemption from that law for conduct related to the labour market. This article considers whether there is sufficient justification to do so and, if so, how such conduct should be assessed under the CCA. No‐poach agreements are cartel conduct and other restrictive agreements may substantially lessen competition in labour markets. Nevertheless, in some circumstances there are legitimate reasons for some of these arrangements. Some suggestions are made as to how restrictive labour arrangements could be addressed by competition law. [ABSTRACT FROM AUTHOR]

Copyright of Wirtschaft und Wettbewerb is the property of Fachmedien Otto Schmidt KG and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This paper investigates the determinants of punitive attitude toward cartels and documents the factors underlying the support for harsher sanctions against these anticompetitive practices. The responses are collected in an experimental design in which participants are exposed to various levels of cartel-type agreement costs. This experimental manipulation allows us to highlight the fact that individuals are more punitive when they are victims of cartels that reduce their earnings. In addition, punitiveness increases in the number of cartels experienced. Overall, punitive attitudes toward cartels are influenced by socio-demographic variables such as age and education level. Being a man is also associated with higher punitiveness. Last, the perceived seriousness of cartels and cartel awareness, are associated with higher punitive attitudes. [ABSTRACT FROM AUTHOR]

Copyright of Computer und Recht is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Computer und Recht is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Computer und Recht is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Computer und Recht is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This paper examines the economic impact of the abuse of superior trading position (ASTP) provision within Korea's draft Act on Fair Intermediary Trade of Online Platforms (AFITOP). The AFITOP, proposed as part of competition law reform in the digital era, applies to large online platform operators providing intermediary services. While derived from the Monopoly Regulation and Fair Trade Act (MRFTA), the ASTP provision's goal to protect the economically weak is secondary to the MRFTA's primary goal of efficiency. Furthermore, the provision's interpretative uncertainties burden enterprises, especially large ones and those exploring new business models. Including this provision in the AFITOP is likely to reduce innovation incentives among large online platform operators, and to foster enforcement bias toward the ASTP provision by the Korea Fair Trade Commission, thereby increasing inefficiency in competition law enforcement. Therefore, the ASTP provision in the AFITOP should not be introduced. [ABSTRACT FROM AUTHOR]

Annotation on the Judgment of the Court of Justice of the European Union (Grand Chamber) of 14 November 2017 in Case C-671/15 Président de l'Autorité de la concurrence v Association des producteurs vendeurs d'endives (APVE) and Others [2017] ECLI:EU:C:2017:860 [ABSTRACT FROM AUTHOR]

The adoption of the revised Horizontal Guidelines, containing a new chapter dedicated to sustainability agreements alone, marks an important step for the green transition, illustrating how stakeholders can collaborate by engaging in sustainability agreements. However, given the novelty of the Horizontal Guidelines, there has been no established interpretation of the relevant concepts and no guidance regarding the nature of enforcement of National Competition Authorities and whether a collaborative or coercive approach should be anticipated from National Competition Authorities and the Commission (together, the enforcers). Guidance on collaboration between enforcers and stakeholders is just as necessary as the guidance provided in the Horizontal Guidelines for competitors. Ultimately, this collaborative effort ensures that sustainability becomes an integral part of competition law compliance, fostering a harmonised approach to achieving economic competitiveness and environmental sustainability. By striking this balance and integrating sustainability considerations into business practices, collaboration becomes more feasible, thereby making competition and its enforcement greener. [ABSTRACT FROM AUTHOR]

In this paper, we analyze the value of screening tests for competition authorities in cartel cases to raise red flags about possible cartels and as a deterrence on new or existing cartels. We start by looking at one of the main problems of screen tests: false positives. We show that multiple screen tests can function as a useful tool to reduce false positives. We then study the legal foundations of screen tests considering the EU competition law and build a case to use screen tests to trigger dawn raids. [ABSTRACT FROM AUTHOR]

The European Court of Justice issued a judgment on the processing of data concerning health, following a request for interpretation of relevant regulations. The case involved two pharmacy operators, nd and dr, regarding the marketing of pharmacy-only medicinal products online. The court determined that customer data entered when ordering such products constitutes data concerning health, even if the products do not require a prescription, and falls under the protection of data privacy regulations. The judgment highlights the importance of protecting sensitive personal data, such as health information, in online transactions. [Extracted from the article]

As diffusion models emerge as a new frontier in generative AI, requiring vast image databases as their inputs, the question arises: how should regulators approach policies concerning the collection and utilization of these images? Though generative image models currently interpret the data they scrape as public, regulatory bodies have yet to confirm this as a viable understanding. This paper explores the current public/personal distinction of data as well as the respective legal standards for both categories in both the American and European context. This paper acts as a guide for regulators seeking to understand monopolization and privacy implications of confirming the validity of using open sourced images versus imagining a reality of curated or licensed datasets amidst outrage from artists over a breach of an expectation of collection/use to their artwork. Though arguments have been made regarding using copyright to protect artists, this paper seeks to explore other pathways for regulating generative image models under our current conceptual frameworks of privacy. [ABSTRACT FROM AUTHOR]

Antitrust law, deeply influenced by price theory, has only recently begun integrating behavioral economic insights. This shift is exemplified by some of the most important recent antitrust interventions worldwide, like the recently concluded Google antitrust trial in the United States--in which the U.S. Department of Justice sued Google for payments to Apple and other distributors to maintain its default status--and the Digital Markets Act in Europe--that mandates users to choose their default internet browser, search engine, and digital assistant. These interventions rely on the theory that setting an application as users' default can be equivalent to an exclusivity contract, because people tend to stick to the status quo. This theory suggests that firms exploit users' inertia to preserve their dominance in digital markets and recommends forcing users to choose their default settings to promote competition. This Article critiques the theory's foundation in behavioral economics, illustrating how it has misguided enforcement efforts towards behaviors unlikely to harm competition by themselves and led policymakers to adopt counterproductive remedies. This work proposes a dual-process model of decision-making to explain the causes of status quo (or default) effects in digital applications, assess the antitrust implications of default effects on application distribution, and evaluate the effectiveness of potential debiasing policies. According to this model, default settings tend to stick when users are either satisfied with the default, unaware of alternatives, or misperceive substitutes' quality. Undesirable defaults are unlikely to endure, particularly when users are aware of competing options. This Article tests these hypotheses through two experiments and a generalized synthetic control model. It reveals that while default effects exist, their impact and persistence are generally much less substantial and more variable than what enforcers and policymakers have assumed. Moreover, in markets where users have strong preferences, forcing them to choose defaults typically results in the dominance of the most popular option. These findings have significant implications for antitrust policy, especially regarding exclusive dealing standards and debiasing remedies. With respect to standards, when considering that defaults only distort the choices of a subset of users, it becomes much harder to pass the substantial foreclosure test under Section 1 of the Sherman Act and Section 3 of the Clayton Act. However, this work shows that monopolists often use default settings as part of a broader monopoly maintenance strategy for which a generic monopolization theory of harm (Section 2 of the Sherman Act) is more appropriate. Regarding debiasing remedies, this study indicates that forcing people to choose their defaults may not significantly alter entrenched market dynamics if most users engage minimally with the choices presented to them and market forces already provide sensible defaults. Default randomization may be a more impactful intervention, but the least sophisticated users would bear most of the policy costs (i.e., sticking to a less preferred default). This Article concludes with three policy recommendations. First, regulators should always base behaviorally informed antitrust interventions on theories that acknowledge the contingency of people's behavior. Second, implementing a dedicated application to manage defaults could significantly lower switching costs and be a more impactful remedy than choice screens. Finally, and more importantly, to best ensure competition in digital markets, law enforcement must target trade restraints among actual or potential competitors that block disruptive innovation rather than focusing on conduct that, by itself, is unlikely to harm consumers. [ABSTRACT FROM AUTHOR]

Competition is everywhere in antitrust. Courts, agencies, and scholars routinely insist that antitrust can, does, and should measure the legality of conduct by asking whether it has harmed or promoted “competition.” The idea that competition is, without further definition, a coherent value that can be increased or reduced—and used to guide the development and application of antitrust rules—has dominated doctrine for a century, and is deployed freely by judges, enforcers, and writers across the political spectrum. This does more harm than good, and it should stop. There is no single value or quantity, in economics or antitrust law, that competition just is. Competition has long been essentialized, in both disciplines, in countless inconsistent ways. And its enduring dominance in antitrust doctrine causes real harms: indeterminacy and confusion, because the purported criterion cannot resolve concrete cases; utopianism, because it conceals antitrust’s fundamental need for hard choices among desirable goals; and bluntness, because today’s courts respond to antitrust’s vague tests by erring in favor of defendants. Antitrust would be better off without competition as a purported orienting value or criterion. There are multiple meaningful and plausible evaluative criteria available to which doctrine might turn instead. One such measure, “harm-centric antitrust,” would orient antitrust to guard against welfare harms resulting from the unprivileged suppression of rival incentive, or rival ability, to meet demand. This is not the only option: there are plenty of other plausible orientations for the antitrust project. But the undefined “promotion of competition” is not among them. It is time to let it go. [ABSTRACT FROM AUTHOR]

Policymakers and scholars concerned with the power of informational platforms are questioning how traditional doctrinal silos like privacy law and antitrust law interact in digital markets. Their interaction has taken on new urgency in recent years as states have enacted a flurry of consent-based privacy laws and as digital markets have become increasingly dominated by the same few firms. Contemporary debates about the interaction of competition and privacy tend to ask what role, if any, privacy should play in the antitrust analysis. Little has been written about how new privacy laws shape the competitive landscape. This Article argues that consent-based privacy laws confer three distinct powers on entrenched incumbent firms. The first is the power to comply. Dominant firms realize economies of scale in any regulatory compliance regime, but they are uniquely advantaged by the need to obtain consent to collect and process users' information. The second is the power to restrict. By constraining information flows, privacy laws deprive insurgents of access to data that could prove valuable in challenging incumbents' dominance, and consent mechanisms exacerbate the dynamic by supplying incumbents with a legal justification for refusing to share their data and circumscribing competitors' access to it. The third is the power to circumvent. A private-sector initiative that limits the collection and sharing of advertising-related information shows that stringent consent mechanisms may deprive all firms of some data, but incumbents with sufficient scale -- and only such firms -- can circumvent and overcome these restrictions. Taken together, the three powers of incumbency suggest that laws like the California Consumer Privacy Act will further entrench dominant informational platforms like Meta's and Google's -- and they thereby raise difficult questions for those who seek to curb platform power. Ultimately, privacy law's incumbency problem suggests pessimism about pursuing competition to the exclusion of other policies and about the prevailing approach to privacy law. [ABSTRACT FROM AUTHOR]

Securities law is an underappreciated part of a regulatory system that checks the power of big business. Corporate power has three essential elements: market power, managerial power, and allocative power. Antitrust addresses abuses of market power, corporate law limits managerial power, and securities regulation strives to ensure that only worthy companies gain the power to allocate societal resources. This Article shows how the problem of big business has consistently been a concern of federal securities law. In the early part of the twentieth century, both social reformers and economists viewed disclosure as a way of revealing the inefficiency of the trusts. In the modern era, securities law has become an important way of regulating large companies as market valuation has become the primary measure of corporate size. Unlike populist antitrust law, securities regulation accepts bigness and, in some ways, even encourages it. Viewing securities law through the lens of corporate power suggests that the very largest public companies should be subject to heightened disclosure requirements. [ABSTRACT FROM AUTHOR]

When the Federal Trade Commission (FTC) issued a rule banning noncompete agreements as unfair methods of competition, it reinvigorated debates regarding the purpose of federal antitrust law. At its core, federal antitrust law seeks to preserve a competitive economy and promote new entry into the marketplace, primarily to protect consumer interest. Under President Biden's administration, the FTC has increased its efforts to expand the scope of antitrust protection beyond consumer welfare by applying it to other public policy concerns, such as employee mobility. The FTC points to noncompete agreements as detrimental constraints to employees' economic freedoms. In practice, employment noncompetes have escaped the scrutiny of federal antitrust laws as courts have generally treated such agreements as matters governed under state contract law. This Note contributes to the ongoing discourse regarding the reach of federal antitrust laws and their applicability in regulating noncompete agreements. Foregoing discussions that scrutinize the FTC's rulemaking authority, this Note instead examines the noncompete rule under judicially created antitrust doctrines. Despite the rule's plain language to ban all noncompetes, this Note treats the ban effectively as a per se antitrust violation. This Note argues that the reviewing courts should continue to apply the rule of reason--a three-part inquiry to determine the legality of an activity that may restrict competition--in future antitrust challenges to noncompetes, as vertical restraints between an employer and employee. In conclusion, this Note supplies recommendations for reviewing courts and potential litigants on how to tailor their rule of reason analysis. [ABSTRACT FROM AUTHOR]

This paper investigates the nature and extent of competition violations experienced by SMEs in the EU-27 countries. Using data from the Flash Eurobarometer 510 Survey, this study employs a Heckman sample selection model to correct for potential selection bias. The findings reveal that while most SMEs do not face significant competition problems, those that do mainly struggle with high prices and powerful suppliers imposing unfair conditions. Interestingly, SME size and age do not significantly affect exposure to antitrust offenses, but industry sector and geographical location do. The paper emphasizes the potential roles of SMEs in competition authorities' market oversight activities, given their unique market position and ability to detect competition violations early. Finally, the article calls for continuous engagement with SMEs by policymakers, regulators, and competition authorities to improve market competition. [ABSTRACT FROM AUTHOR]

State-level antitrust enforcement has historically been an important tool that promotes competition in the U.S. The total number of cases that were filed between 1990 and 2006 averaged 22 per year, and generally fluctuated in a fairly tight band. In an earlier article we found that political and macroeconomic variables tended to explain well these filing patterns. However, since then the number of state cases filed has dropped dramatically and averaged just 12 cases over the five years that preceded Covid. In this paper we consider again the political economy of antitrust enforcement at the state level: we find similar explanations to our 2010 article, with the size of the state economy, the macroeconomic conditions that face the state, and the political party in charge of enforcement continuing to drive antitrust filing activity. [ABSTRACT FROM AUTHOR]

Leniency Programs (LPs) reward cartel-participating firms that come forward with evidence that can be used as proof of the illegal conduct in which they have participated. The marker system allows a leniency applicant to reserve its position in the reporting queue before the names of the eligible applicants are announced. We show that markers can reduce the destabilizing effect of LPs: When cartels are established either with or without a marker system, self-reporting and cartel disruption are less likely with markers, as compared to without markers. In addition, the introduction of markers in LPs may further the sustainability of collusion. [ABSTRACT FROM AUTHOR]

Isaac Appel's article "Economic Terminators: The Futility of American Antitrust Law in an AI-driven Economy" discusses the challenges of algorithmic collusion in modern markets and the limitations of current antitrust laws in addressing this issue. The text examines ongoing litigation cases, such as United States v. Agri Stats and Gibson v. MGM Resorts International, where the Department of Justice is working to combat algorithmic collusion. The article concludes by advocating for a reevaluation of antitrust laws to effectively tackle the emerging challenges posed by AI-driven economies, suggesting new strategies like an algorithmic collusion incubator and a licensing regime for pricing algorithms. [Extracted from the article]

In the past few years, more and more competition authorities have expanded their powers in conducting market inquiries. Some competition laws have given the competition authorities the power to impose remedies after a market inquiry and to impose fines on undertakings that resist providing information during a market inquiry. Some competition authorities are in the process of amending their laws to mirror this development. The COMESA Competition Commission is an exemplary incident of a competition authority that is amending its law to cloth it with expansive powers in the conduct of market inquiries. This article explores whether or not such expanded powers in a market inquiry are overly intrusive and whether they are consistent with the constitutional and natural justice guarantees. An interrogation on whether there are safeguards to ensure that these powers are not unfettered and do not result in abuse of the rights of those that are subject to this power will also be conducted. [ABSTRACT FROM AUTHOR]

This article evaluates the implementation of the cartel leniency programme by the Competition Commission of India (CCI) using comprehensive data covering all related decisions of the CCI from 2009 to 2021. All other things remaining the same prima facie discoveries of cartels should have resulted in a 'shock' to ex ante expected returns of cartels, thereby encouraging more leniency applications. But, we find no such results or rather no 'race' to the agency. A successful leniency programme requires a transparent and deterrent penalty, plus consistency in applying leniency provisions. However, inconsistencies in the choice of penalty base and uncertainties in determining final penalties while using mitigating and aggravating factors have led to a poor correlation of penalties with cartel gain or harm. Strategic or otherwise, this has encouraged appeals to the appellate authority, thereby reducing the effective penalty to levels below deterrence. Many acts of bid rigging have been penalized using less stringent criteria and, in a few circumstances, also provided the benefit of leniency. Further, while individuals concerned in leniency cases have always been penalized, the CCI has not been so consistent in non-leniency cartel cases. These asymmetries and 'other' costs create disincentives for exercising the leniency option. We offer suggestions for enhancing the possibility of a race to the agency. [ABSTRACT FROM AUTHOR]

The debate about competition concerns in the digital economy cumulated in the adoption of new legislation, Section 19a GWB in Germany and the Digital Markets Act at the EU level. At around the same time, a new term gained prevalence in the competition law discourse—the 'ecosystem'. Often, it is not quite clear, what is meant by it or what the economics behind it are. In this article, I look to the strategic management literature, whose scholars have developed a coherent ecosystem concept. I will explain the economic benefits of the ecosystem structure and the essential role governance plays in it. From the economics of the ecosystem, several insights can be won for competition law. These insights will be applied to the new legislation in the second part. It will be analysed to what extent the DMA and Section 19a GWB are based on the ecosystem concept, whether they identify the problematic actors as addressees, and whether they capture the restrictive conduct. Although both legislative responses do not build on the ecosystem concept, they do not completely fail to address the right issues. Their neglect of the concept, though, could lead to serious enforcement failures. [ABSTRACT FROM AUTHOR]

There is presently an increased enthusiasm for competition law enforcement around the world, driven primarily by concerns about the power of digital platform companies. Against this background, this article identifies the emergence of a 'techno-conservatism' that invokes a 'rhetoric of innovation' to stymy the field's ongoing shift towards a more interventionist paradigm. Drawing parallels between techno-conservatism and twentieth-century Chicago school conservatism, the article holds that appeals to innovation are a means of deterring enforcement against dominant companies in dynamic markets. This article contests the rhetoric of innovation, maintaining that it is possible to reconcile strong enforcement with care for innovation. It does so by raising three points. First, innovation often arises from smaller companies and deconcentrated markets. Secondly, many of the innovations associated with technology companies often have their origins in the public sector. Thirdly, innovation is not innately beneficial. It is not enough to defend dominance simply by pointing to 'more innovation'; thought must also be given to the qualitative nature of that innovation. Taken together, these three ideas represent a useful framework with which to counter the rhetoric of innovation and defend the momentum building in competition law. [ABSTRACT FROM AUTHOR]

This article analyses the context of the first Brazilian antitrust law, between 1930 and 1945. Its goal is to clarify how the 'popular economy'—a constitutional and legal concept of the time—functioned as a protective instrument for the internal market. The study explores the hypothesis that the legislation was directed at foreign economic power, already embedded in national economic structures at the time. The research demonstrates that the antitrust legislation arose not only to control prevailing economic power but also to provide meaning to it within the framework of the Estado Novo and its intent to reformulate the internal market. Furthermore, this article highlights the influence of constitutional and administrative doctrines in this movement, indicating how the antitrust system was modulated on liberal bases, assuming the curious figure of a strong State subsidiary to the private sector. The work demonstrates that, aside from the question of supply, a crisis in the insurance policy market throughout 1938 was crucial to drafting the first antitrust law. [ABSTRACT FROM AUTHOR]