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This study examines the remaining options for sport managers to balance the interests of college athletes and the National Collegiate Athletic Association (NCAA) in regulating college athlete name, image, and likeness (NIL). The paper is divided into six substantive sections. The first section, "Background: The NCAA's Defense of NIL Restrictions," provides a brief history of the NCAA's legal defense to challenges against its NIL regulations. The second section, "U.S. Congress Is Unlikely to Regulate College Athletes' NIL Rights," addresses proposed federal legislation and Congress' willingness to regulate the use of NIL by college athletes. The third section, "The Impact of O'Bannon and Alston on NCAA's NIL Restraints," examines controlling case law, specifically O'Bannon v. NCAA and NCAA v. Alston, and how current antitrust law precedent shapes the scope by which the NCAA can regulate college athletes' NIL. The fourth section, "State Laws Regulating the NIL Marketplace," addresses state legislation regulating college athlete NIL use. The fifth section, "The Applicability of Labor Law to Regulating College Athletes' NIL," discusses the current college athlete NIL marketplace and analyzes whether labor law presents an optimal way forward for the NCAA to regulate NIL post-Alston. The sixth section, "College Athletes' Employee Status as a Pathway to Redefine the NCAA's Amateurism," concludes by examining the law's role in regulating NIL and discussing stakeholder implications. [ABSTRACT FROM AUTHOR]

This article examines the risks associated with private equity involvement in the healthcare industry and its impact on patient safety. Private equity firms have been acquiring medical practices and healthcare infrastructure, using strategies like cost-cutting and price increases to increase the value of their assets. Studies have shown that private equity ownership is linked to poor safety records in nursing homes and hospitals, leading to more complications and reduced nursing staff. Physicians also face risks, such as reduced hours, pay cuts, and loss of autonomy. The article suggests that orthopaedic surgeons and policymakers should take measures to protect patients, including not referring them to private equity-owned institutions and advocating for stricter regulations on private equity in healthcare. It emphasizes the need for transparency in ownership structures and federal intervention to safeguard patients from safety concerns, quality degradation, and predatory pricing. The article also calls for enforcement actions against private equity-owned physicians' groups for anticompetitive behavior and warns about the potential negative consequences for healthcare professionals. [Extracted from the article]

We conduct an experimental study of cartel behaviour in the presence of an active competition authority. Treatments differ with respect to how responsive the authority is to collusion and suspicious pricing behaviour by firms. Subjects are successful in coordinating strategies to avoid antitrust detection as we observe gradual price increases and staggered pricing conforming with theory. We find that the presence of a more active antitrust regime substantially improves the internal stability of cartels. We attribute this result to the common-enemy (or esprit de corps) effect induced by the threat of cartel prosecution. A more responsive antitrust policy in this experiment provides higher cartel deterrence which lowers both prices for consumers and the cost of antitrust enforcement. [ABSTRACT FROM AUTHOR]

Since its beginnings in the 19th century, the liner shipping industry has shown specific peculiarities characterized by close collaboration between sea carriers. This cooperation has materialized through various types of inter-firm agreements that have been exempted from the key principles of competition law. Recently, strong criticism has emerged against strategic alliances and related agreements that rule a concentrated market where operators are strongly interrelated and increasingly integrated. However, the maritime management literature so far has given little attention to the concrete provisions of these agreements, which still appear as 'black boxes.' To fill this gap, we collected 61 enforced cooperative agreements registered with the U.S. Federal Maritime Commission from 1973 to 2020 using a three-way comparison through legal, linguistic, and business lenses of the differences between older and newer types of agreements. We underline the key temporal evolutions of these contracts and show how ocean carriers have incorporated new legal constraints and strategic needs driven by structural market changes toward greater logistics integration. [ABSTRACT FROM AUTHOR]

The document examines challenges and innovations in telecommunications law, focusing on the European context. It highlights the importance of asymmetric regulation and ex ante identification of enterprises with substantial market power. The 2018 European Electronic Communications Code introduces pivotal changes, including co-investment agreements (Art. 76), aiming to foster cost and risk sharing among operators, benefiting smaller enterprises. Such agreements respond to the need for sustainable competition. Art. 72 introduces a new obligation: access to civil engineering infrastructures. This obligation can extend beyond the traditional market if necessary and proportionate to achieve competition and unhindered access objectives. The document emphasizes the regulations' efforts to balance the interests of economic operators and consumers, promoting competition and innovation in the telecommunications sector. [ABSTRACT FROM AUTHOR]

Who should be liable for competition law infringements? While the answer should be, in theory, a simple application of the personal liability principle – the infringer pays – the corporate changes that an infringer may undergo in the years necessary to come to an imputation of the infringement make the matter, in practice, significantly more complex. In this article, we first investigate the core of the antitrust liability theories, all to be traced back to the fundamental concept of undertaking, which constitutes their indispensable theoretical background. Then, we will try to provide an answer to the question, by analyzing, on the basis of the case-law, the multifaceted and colourful applications of antitrust liability theories to M&A transactions involving antitrust infringers. Lastly, we lay out practical suggestions which may be useful for companies to minimize the risks of being left with antitrust liability as a result of corporate transactions. [ABSTRACT FROM AUTHOR]

This paper builds on Khan's work on Amazon by transferring her normative framework to Apple. It explores the company's anti-competitive business practices, main antitrust concerns, and the currently proposed reform measures from an innovative business ethics and law (i.e., ordoliberal) perspective. The paper argues that one of the key issues with Apple is the company's closed ecosystem combined with its role as an internet gatekeeper. The E.U.'s Digital Markets Act, which aims to open Apple's ecosystem – via data portability, interoperability, and multi-homing requirements – is a necessary step in the right direction. Yet, it is insufficient to prevent the lock-in effects of a 'walled product garden' and ensure complete device and platform neutrality. That is, additional steps must be taken to overcome Apple's dual role as a platform operator and service provider and inhibit the company from engaging in anti-competitive business conduct. [ABSTRACT FROM AUTHOR]

The article discusses the development of the essential facilities doctrine and the right to refuse to deal, and the issues of their application to the digital economy in the 21st century. Topics covered include the doctrine's constitutionality in application, and its constitutionally suspect finding under the First and Fifth Amendments. Also noted are issues of applying the doctrine to the digital economy based on decisions on both Amendments as of 2024.

Spotify and its competitors offer the same product at the same price. Why? Scholars have argued that relationships can be designed in a way that naturally promotes innovation. By "braiding" certain formal contracting practices with informal enforcement norms, parties develop a framework that supports trust and positive, long-term collaboration. This Article takes on this consensus and shows that not all braiding is good. Using the multibillion-dollar subscription music streaming business as an illustration, this Article demonstrates just how industry forces can, and do, overcome braiding's positive slant. In the music streaming industry, the major record labels (Universal, Warner, and Sony) weaponize braiding to control their downstream distributors: Spotify and the Big Tech companies. Parallel contracting practices are interwoven with informal industry norms that, taken together, create a homogenous market and prohibit startup entry. Innovation is stifled as a result. Policymakers frequently look to copyright and antitrust law to promote consumer choice in content industries, and there are some viable choices in those arenas. Nevertheless, this Article sets out other valuable tools that can solve these sorts of issues, disincentivize parallel practices, increase choice for consumers, and encourage market entry by technology startups. [ABSTRACT FROM AUTHOR]

Whilst NHS Health Service management is usually characterized by hierarchized bureaucracy and profit-driven competitiveness, the COVID-19 pandemic drastically disrupted these ways of working and allowed London-based non-clinical management to experience their roles otherwise. This paper is based on 35 interviews with senior non-clinical management at a London-based NHS Trust during 'Alpha phase' of Britain's pandemic response (May-August 2020), an oft-overlooked group in the literature. I will draw upon Graeber's theory of "total bureaucratization" to argue that though the increasing neo-liberalization of the health-services has hitherto contributed toward a corporate mentality, the pandemic gave managers a chance to experience more collaboration and freedom than usual, which ultimately led to more effective realization of decision-making and change. The pandemic has shown NHS managers that there are alternatives to neoliberal logics of competition and hierarchy, and that those alternatives actually result in happier and effectively, more capable staff. [ABSTRACT FROM AUTHOR]

Due to a confounding decision by the Supreme Court in the 1920s, the sport of professional baseball was permitted to grow for over a century unconstrained by federal antitrust laws. As a result of this antitrust exemption, professional baseball players were forced to endure unique hardships in the area of labor relations, as compared to athletes in other professional sports. After decades of confusing litigation results and calls for legislation, Congress finally responded in 1998 through passage of the Curt Flood Act. However, despite broadly claiming to apply federal antitrust laws to the sport of professional baseball, the effect of the Act was far more limited. Therefore, Major League Baseball players have been forced to look elsewhere when seeking external influences to force concessions at the bargaining table. Unlike Major League Baseball players, Minor League Baseball players were unable to even approach the bargaining table until very recently. Thus, while Major League Baseball players spent decades achieving small victories to cumulatively improve their labor conditions, such opportunities were unavailable to Minor League Baseball players. However, recent years have seen this trend come to an end. Today, Minor League Baseball players possess union representation and a seat at the bargaining table. In light of these advances, legitimate questions have been raised as to the modern need for an antitrust exemption that places labor relations in baseball on an uneven playing field compared to other professional sports. Although the future of the exemption is unclear, recent history suggests that both the Supreme Court and Congress have taken note of these developments and are beginning to reexamine the modern justifications of an antitrust exemption for professional baseball. [ABSTRACT FROM AUTHOR]

The article examines the commodification of personal data and argues against using antitrust law as a regulatory tool for protecting privacy. It asserts that the market for personal data is inherently noxious, and subjecting privacy to market values can exacerbate social inequalities. It suggests that privacy regulation should stand independently from market forces.

Following a long stream of literature on the drivers of Mergers and Acquisition (M&A) activities, this study examines the effect of corporate leverage on several decisions of M&A deals in the context of the United Arab Emirates (UAE). Using M&A data from the Thomson One database for the period between 2005 and 2022, we find that corporate leverage significantly influences the type of M&A target. This study further adds to the prior literature on the contradictory behaviours of high and low leverage firms by examining whether acquisition decisions differ amongst them in M&A deals in the UAE context. Results indicate that high (low) leverage firms are less (more) likely to acquire private targets and more (less) inclined to acquire a target from a different (same) industry. Furthermore, our results show that the relationship between the method of payment used in M&A deals and corporate leverage is insignificant. We control for endogeneity using Heckman's two-stage method. In brief, this paper extends the literature with conclusive evidence that considerations of capital structure can significantly anticipate and explain firms' behaviour toward M&A choices. The implication of findings may include a call to reform some aspects of the Competition Law in the UAE by requiring private firms to enhance their disclosure practices similar to their public counterparts. [ABSTRACT FROM AUTHOR]

Private equity has rapidly enlarged its presence in the health care sector, expanding its investment targets from hospitals and nursing facilities to physician practices. The incursion of private equity is the latest manifestation of a long trend toward the corporatization and financialization of medicine. Private equity pools investments from large private investors to buy controlling stakes in companies through leveraged buyouts or similar arrangements that use the companies' own assets to finance debt. These investors seek to earn handsome profits by rapidly increasing revenues before selling off the investment. Private equity's incursion into health care is especially concerning. The drive for quick revenue generation threatens to increase costs, lower health care quality, and contribute to physician burnout and moral distress. These harms stem from market consolidation, overutilization and upcoding, constraints on physicians' clinical autonomy, and compromises in patient care. Policymakers attempting to counter these threats can barely keep up. Like a cloud of locusts, private equity moves so quickly that by the time lawmakers become aware of the problem and researchers study the effects, private equity has moved on to other investment targets. While it remains unclear whether private equity investment is fundamentally more threatening to health policy than other forms of acquisition and financial investment--whether by publicly traded companies, conglomerate health systems, or health insurers-private equity presents a heightened threat of commercialization. Even if private equity is not uniquely harmful, it is extremely adept at identifying and exploiting market failures and payment loopholes. The emphasis on short-term returns and exit, the heavy reliance on debt, and the insulation from professional and ethical norms make private equity investors more avid to exploit revenue opportunities than institutional repeat players. Thus, this Article’s central claim is that the influx of private equity into health care poses sufficient risks to warrant an immediate legal and policy response. Public policy should primarily target market failures and payment loopholes and only secondarily curb private equity investment per se. The good news is that we already have many tools under federal and state law with the potential to address the harms of commercialization. These can be used or sharpened to address the particular concerns raised by private equity’s incursion into physician markets. Key tools include antitrust oversight, fraud and abuse enforcement, and state laws regulating the corporate practice of medicine and the terms of physician employment. In some instances, legislative or regulatory action may be needed to adapt existing laws. In other instances, new laws may be needed to close payment loopholes or correct market distortions. A leading example is the recent No Surprises Act, which curtails surprise outof- network medical billing. While the Article lays out a roadmap for additional legal and policy actions to protect the health system from the acute risks of private equity, these are patches rather than systemic solutions. If these patches fail to stave off the incessant march toward commercialization of health care, we may see renewed calls to fundamentally rethink the market orientation of the U.S. health system. [ABSTRACT FROM AUTHOR]

A data-generation revolution is underway. Until recently, most of the data used for algorithmic decision-making was collected from events that took place in the physical world ("collected" data). Yet it is forecast that by 2024, sixty percent of data used to train artificial intelligence systems around the world will be synthetic (!). Synthetic data is artificially generated data that has analytical value. For some purposes, synthetic datasets can replace collected data by preserving or mimicking its properties. For others, synthetic data cam complement collected data in ways which increase its accuracy or enhance privacy or security protections. The importance of this data revolution for our economies and societies cannot be overstated. It affects data access and data flows, potentially changing the competitive dynamics in markets where data cannot be easily collected and affecting decision-making in many spheres of our life. In many ways, synthetic data does to data what synthetic threads did to cotton. This data-generation revolution requires us to reevaluate and potentially restructure our legal data governance regime, which was designed with collected data in mind. As we show, synthetic data challenges the equilibrium erected by existing laws to ensure the protection of competing values, including data utility, privacy, security, and human nights. For instance, by revolutionizing data access, synthetic data challenges assumptions regarding the height of access barriers to data. As such, it may affect the need for and the application of antitrust and direct regulation to some firms whose comparative advantage is data-based. Even more importantly, by potentially making data about individuals more granular, and by increasing the accuracy and completeness of data used for decision-making about individuals, synthetic data also challenges the governance structures and basic principles underpinning current privacy laws. Indeed, many argue that synthetic data does not constitute personal data, and thus avoids the application of privacy laws. We challenge this claim. We also show that synthetic data exposes deep conceptual flaws in the data governance framework. It raises fundamental questions, such as whether data which is not linked to a person in the original dataset should still be treated as personal data, and how inferences based on collected data should be treated. We then reevaluate the justifications for legal requirements regarding data quality, such as data completeness and accuracy, as well as those relating to fair and informed decision-making, such as data transparency and explainability. The claim is often made that such obligations enhance social welfare. Yet, as we show, synthetic data changes the balance between the protected values, potentially leading to different optimal legal requirements in different contexts. For example, where synthetic data significantly increases consumer welfare, yet the underlying processes are not easily explained, requirements to look under the hood of datasets and provide a detailed explanation of what led to the decision might not always be welfare-maximizing. This Article seeks to bring state-of-the-art data generation methods into the legal debate and to propose legal reforms which capture the unique characteristics of synthetic data. While some of the challenges discussed here also arise with the use of collected data, synthetic data puts these challenges on steroids. [ABSTRACT FROM AUTHOR]

Both Google Android and Google Search (Shopping), along with other ongoing digital market antitrust enforcement actions like United States v. Google LLC, are based on foreclosure conduct that has raised difficult doctrinal questions for courts, regulators, and scholars. This emerging form of foreclosure, which some have termed "cognitive foreclosure" because of its behavioural economic foundations, has encountered difficulties in being conceptually subsumed under existing antitrust frameworks. Yet as a demand-side market failure, enforcers and scholars must be cautious about automatically categorising these market failures as antitrust issues, given that such market failures are usually governed by the more de-minimis consumer protection regime. This Article proffers a new legal test to aid courts and regulators in appropriately "identifying" behavioural market failures that would justify antitrust scrutiny. The test's limits are subsequently justified from moral hazard perspectives given the potential reduction in societal rationality due to antitrust over-enforcement. [ABSTRACT FROM AUTHOR]

The contribution of this study is to disclose the main determinants of the duration of the U.S. antitrust federal court decisions, an issue that has been nearly overlooked by most related studies. As an indirect measure for the time needed to dispose cases, this study uses the duration of the case from the filing of the complaint to the date of the opinion. Using this metric, we employ parametric and nonparametric panel data techniques on a sample of 613 appellate court proceedings on U.S. antitrust cases during the period 1995–2018. The empirical research reveals spatial heterogeneity in terms of case duration among the circuits of the appellate U.S. courts. The econometric analysis supports that the duration of appellate antitrust court decisions depends on administrative-related factors including the way the case was filed in the circuit, the jurisdiction in the case, the " pro se " representation of the undertakings, and the nature of the final judgment. Lastly, based on the flexible semi-parametric analysis, we argue that the impact of these parameters on case duration is linear, regardless of the specification of the parametric part of the model. [ABSTRACT FROM AUTHOR]

Although the use of algorithms has become increasingly prominent in the digital market, such algorithms are often opaque and prone to risks of making biased decisions. Algorithms could also be used to harm competition, such as by facilitating cartels. Such developments make it necessary to examine the readiness of existing competition law to tackle cases involving algorithms. This paper focuses on analysing Indonesian competition law to address the following issues: (1) how current Indonesian competition law deals with algorithms-related cases; (2) which indicators could detect anti-competitive algorithms; and (3) which competition policy approach could be considered in Indonesia to tackle the problem resulted from the use of algorithms. [ABSTRACT FROM AUTHOR]

The introduction of Integrated Care Systems (ICS) in England aimed to increase joint planning and delivery of health and social care, and other services, to better meet the needs of local communities. There is an associated duty to undertake collaborative research across ICS partners to inform this new integrated approach, which might be challenging given that organisations span health, local authority, voluntary and community sector, and research. This study aimed to explore the appetite for collaborative Research and Innovation (R&I) across ICSs, potential barriers and solutions. This qualitative study involved semi-structured interviews with 24 stakeholders who held senior positions within organisations across two ICS areas (Staffordshire and Stoke-on-Trent; Shropshire, Telford and Wrekin). Interview transcripts were analysed using inductive and deductive analysis, first mapping to the Theoretical Domains Framework (TDF), then considering key influences on organisational behaviour in terms of Capability, Opportunity and Motivation from the COM-B Behaviour Change Wheel. There were fundamental limitations on organisational opportunities for collaborative R&I: a historical culture of competition (rather than collaboration), a lack of research culture and prioritisation, compounded by a challenging adverse economic environment. However, organisations were motivated to undertake collaborative R&I. They recognised the potential benefits (e.g., skill-sharing, staff development, attracting large studies and funding), the need for collaborative research that mirrors integrated care, and subsequent benefits for care recipients. Related barriers included negative experiences of collaboration, fear of failing and low confidence. Capability varied across organisations in terms of research skills and confidence, which reflected the range of partners (from local authorities to NHS Trusts, primary care, and academic institutions). These findings indicate a need to shift from a culture of competition to collaboration, and to help organisations across ICS to prioritise research, and share resources and skills to mitigate the limiting effects of a constrained economic environment. This could be further explored using a systems change approach, to develop the collaborative research efforts alongside the overarching move towards integrated care. [ABSTRACT FROM AUTHOR]

The article focuses on the commodification of personal data and its detrimental effects on privacy, arguing against using antitrust law as the primary means of addressing this issue. It highlights how the monetization of personal information creates a "noxious market" that undermines privacy norms and disproportionately impacts vulnerable individuals.

The digital transformation is taking place in the healthcare sector and requires that professional qualifications be expanded to include digital competencies. Some medical faculties have already implemented curricula for this. An adapted curriculum is being developed for the primary care-oriented Brandenburg Reformed Medical Study Program, taking into account the needs of the teaching practice network. For this purpose, teaching practices were queried via a questionnaire about which digital technologies are used in patient treatment or will be used in the future and which competencies should be added to medical training. The analysis revealed that the majority were aware of digital topics and technologies, but that implementation due to legal requirements was in competition with time and monetary resources. In addition, there were uncertainties regarding the use of digital media, especially regarding background knowledge of legal and technological aspects of data protection. Furthermore, the importance of direct contact between physicians and patients was also emphasized. The incorporation of teaching practices provides the basis for developing needs-oriented curricula for training and continuing education. It became apparent that the central guiding principles of data protection and physician-patient relationships should be taken into account in order to make the best possible use of the potential of digitalization in healthcare for patient care. The goal should be to integrate digital technologies as a meaningful addition to physicians' core competencies, so that medical staff have more time for value-added activities and patients in turn benefit from improved experience and, thus, satisfaction. [ABSTRACT FROM AUTHOR]

Although the European Union has been pursuing media policy for decades, its legal competence for the media sector remains limited. Since its inception in the 1980s, the EU had to base its media policy on its responsibility to enforce the internal market and the direct application of competition law, which has led to a one-sided economic perspective on the media. With references to the EU Charter of Fundamental Rights, the enshrinement of European values in the EU Treaty, the rule of law mechanism, and driven by the European Parliament, the EU Commission has recently shown a new direction in its media-related activities, which acknowledge the important role of the media in democracy and increasingly place media freedom and media pluralism at the center of its media policy. The draft European Media Freedom Act presented by the Commission in autumn 2022 brings together the numerous activities aimed at protecting the freedom of the media and their independence, and at the same time seems to test the limits of the scope for its media policy. [ABSTRACT FROM AUTHOR]

This article explores the responses of the South African competition authorities to the impact of the COVID-19 pandemic on the socio-economic rights of consumers in relation to the price gouging of essential and medical supplies. After discussing the constitutional and legislative context of socio-economic rights and excessive pricing, it examines the first case in which the competition authorities were called upon to decide on the excessive pricing of medical supplies during COVID-19. The article finds that, while the competition authorities were swift to interpret the Competition Act widely and act against suppliers charging excessive prices, there remains a gap in South Africa's legislative framework as there is no specific legislation regulating price gouging during states of pandemic or disaster. The article identifies the need for legislative development and concludes by offering recommendations for addressing future incidents of price gouging. [ABSTRACT FROM AUTHOR]

The article provides an overview of the United Kingdom's new block exemption on vertical agreements, with a specific focus on its implications for franchising. The UK's Vertical Agreements Block Exemption Order (VABEO) came into effect on June 1, 2022, after Brexit. The VABEO outlines provisions that should not be included in vertical agreements, including franchise agreements, in order for them to be exempt from competition law regulation. The article highlights the key differences between the UK's VABEO and the EU's Block Exemption Regulation on Vertical Agreements (VBER) and explores various competition law issues that arise in the context of franchising. It emphasizes the importance for franchisors operating in both the UK and EU markets to understand these differences in order to comply with competition regulations. [Extracted from the article]

On July 9, 2021, President Joe Biden issued an executive order aimed at promoting competition in the adult beverage industry. As mandated by the executive order, the Department of the Treasury—with the assistance of the Department of Justice, Federal Trade Commission, and Alcohol and Tobacco Tax and Trade Bureau (TTB)—released a report detailing anticompetitive practices in the American markets for beer, wine, and spirits. The report concluded that several winemaking practice regulations inflicted an unjustified regulatory burden on producers. Therefore, the Treasury ordered the TTB to evaluate its regulations and eliminate any obstacles to competition. This Note first discusses the regulatory frameworks of prominent wine regions across the world, then examines the underlying policy of wine legislation. This Note argues that the TTB should modernize wine regulations and adopt more stringent standards in further rulemaking to comply with federal antitrust law in the United States. [ABSTRACT FROM AUTHOR]

Competition law enforcement is one of the cornerstones of sound business regulation; yet it faces a problem in the transnational context. Whereas transnational commerce seamlessly transcends borders, competition law has jurisdictional roots, lacking a true transnational response. Global frictions due to the enforcement of divergent domestic laws and policies seem inevitable yet are surprisingly rare. We argue this phenomenon cannot be fully explained by a doctrinal analysis of the global efforts towards policy or legal convergence. Instead, the focus should be on the competition law officials who operationalise the law in a transnational context. This ‘human element’ of the inquiry must embrace qualitative research methods, such as ethnographic studies commonly used in legal anthropology, to develop a comprehensive legal analysis in this context. [ABSTRACT FROM AUTHOR]

The article discusses the dangers of false analogies in legal reasoning, particularly in the context of antitrust law. It explores how comparing incomparable concepts, such as predatory pricing and other antitrust claims, can lead to flawed legal conclusions. It argues that predatory pricing, despite being initially beneficial to consumers, can ultimately harm competition and consumers alike.

A reform movement is underway in antitrust. Citing prior enforcement failures, deviations from the original intent of the antitrust laws, and overall rising levels of sector concentration, some are seeking to fundamentally alter or altogether replace the current consumer welfare standard, which has guided courts over the past fifty years. This policy push has sparked an intense debate over the best approach to antitrust law enforcement. In this Article, we examine a previously unexplored potential social cost from moving away from the consumer welfare standard: a loss in the information value to the public from a finding of liability. A virtue of the current standard is the knowledge that firms who violate the antitrust laws have harmed consumers. This simple reality is a direct, easy-to-interpret signal to market participants and investors. In contrast, a broader and more nebulous standard--such as a "public interest" approach, which has been proposed by some academics and agency officials--could conceivably water down the information value of a finding of liability. In essence, the greater the license that regulators and courts have to condemn a business practice beyond a finding of harm to consumers, the noisier the signal to the public about what the verdict means. We can call this phenomenon "the stigma dilution effect." To that end, we develop a formal model to gain insight into the role of reputation in the enforcement and deterrence effects of antitrust laws. The model reveals that broadening the welfare standard is likely to weaken the reputational impact of antitrust violations. This dilution can, in turn, have implications that go against what the proponents of abolishing the consumer welfare standard desire. Namely, a new standard could increase, rather than decrease, the frequency of conduct they seek to deter. Thus, our analysis suggests there may be important and underappreciated costs associated with departures from the consumer welfare standard. In fact, the presence of reputational considerations suggests that these departures can produce effects contrary to the stated goals of their proponents. [ABSTRACT FROM AUTHOR]

The name, image, and likeness (NIL) changes and shifting landscape obscure more existential threats to the student-athlete model on the horizon. The television money that Power Five conference teams receive still comprises much of the budget of athletic departments. The football and basketball players--the revenue sport athletes--may have a claim to a greater share of this revenue. Some athletes argue that they are employees of their universities, which would entitle them not only to additional benefits but also to other tools, such as collective bargaining. All of these advantages could make universities responsible for increasing the amount of remuneration available to revenue sport athletes. Other athletes are advancing antitrust lawsuits in an attempt to remove the barriers to a free market in order to eviscerate the grant-in-aid limit on remuneration a university can pay to its athletes. The consequence often ignored in conversations surrounding a future where either or both efforts are successful relates to non-revenue sports--sports that do not generate enough money to cover their expenses. While Title IX protects women's sports to a degree, the overall consequence of increased compensation for revenue sport athletes will be the diminishment and even loss of many non-revenue sports. This is because revenue sports such as football and basketball largely cover all the costs of non-revenue sports. This Article maps the current landscape without adopting a normative view. Certainly, a college sports future decided by university administrators and athletic directors remains preferable to one mandated by courts. To that end, this Article offers several different paths to a new status quo in light of the imminent threats of litigation grounded in employment and antitrust law. Part II of this Article describes the effect of NIL on the pay-forplay conversation. Part III assesses the current litigation in employment and antitrust law. Lastly, Part IV maps some possible responses of universities to this changing landscape. [ABSTRACT FROM AUTHOR]

As corporations continue to prioritize environmental, social, and governance (ESG) improvements alongside profit, cooperation with competitors may be an important part of their toolbox. In particular, cooperation can help to advance initiatives like the elimination of an unsustainable product type, which is a drastic step a corporation likely would not take on its own for fear of hurting its bottom line and customer loyalty. The issue is that agreements among competitors to engage in such steps may violate antitrust laws, as suggested by the Justice Department in the Trump administration and numerous state attorneys general. This Comment uses the term "green product fixing" to refer to the practice of a business entering into agreements with its competitors regarding environmentally-focused product standards and identifies two principal reasons why antitrust law may spell trouble for green product fixing. First, antitrust case law is clear that self-regulation in the form of extra-governmental product standards and codes of conduct is a violation of the Sherman Antitrust Act. Second, while the law does have some room to permit agreements that would otherwise be unlawful, based on certain offsetting procompetitive benefits, factors like a reduction in carbon emissions or pollution would not be considered as procompetitive benefits under the current application of United States antitrust law. This Comment argues that a different type of analysis from that traditionally used in antitrust law is necessary with respect to green product fixing. The traditional analysis focuses on consumer welfare but does not capture the benefit to consumers, as members of society, from the reduction in negative externalities resulting from a cooperation agreement. This Comment proposes balancing the traditional analysis with consideration of environmental benefits that trickle down to consumers. It also evaluates potential avenues for legislative and judicial implementation of such an analysis. [ABSTRACT FROM AUTHOR]

Generative artificial intelligence is being rapidly deployed for corporate tasks including pricing. Suppose one of these machines communicates with the pricing manager of a competing firm, proposes to collude, receives assent, and raises price. Is this a crime under U.S. antitrust laws, and, if so, who is liable? Based on the observed behavior of the most widely adopted large language model, we argue that this conduct is imminent, satisfies the requirements for agreement and intent under Section 1 of the Sherman Act, and could confer criminal liability to both firms as well as the pricing manager of the competing firm. [ABSTRACT FROM AUTHOR]

In recent years, the Spanish National Markets and Competition Commission has increasingly applied article 3 of the Spanish Competition Law to investigate, initiate and even sanction allegedly anti-competitive practices by companies in Spain. Among the proceedings initiated, two of them are particularly interesting. While AUDAX Renovables is the most recent decision that sanctioned the investigated companies, Préstamos ICO Covid is the most recent decision that closed the proceedings because the court deemed that no infringement had been committed. Both cases are a clear example of the Spanish National Markets and Competition Commission's recent stance on when and how this provision applies. [ABSTRACT FROM AUTHOR]

This article analyses the practical issues arising in private damages claims proceedings when the competition authority's decision on which the civil claim is based has been appealed and is thus not final. [ABSTRACT FROM AUTHOR]

This article examines how the subjective element of gun-jumping infringements has developed since the National Court's judgment in the Bergé case. We analyse the main aspects of the decisions of the National Markets and Competition Commission, the National Court and Supreme Court. [ABSTRACT FROM AUTHOR]

Presumptions of law are an appealing concept to remedy situations of causal uncertainty. In many pieces of EU legislation in various areas such as competition law, AI law and environmental law, presumptions are presented as a solution for plaintiffs that encounter problems regarding causal uncertainty in their compensation claims. Oftentimes, however, insufficient attention is paid to the possible risks of over- and under-compensation, the available alternatives and the functionality of these presumptions. In this article, I argue that a presumption of law fulfils two functions. First, this paper aims to address situations of evidentiary deficiency (individual goal). Second, it aims to facilitate the procedural road to compensation in cases of mass harm (collective goal). A comparative analysis of Belgian, Dutch and French law reveals that there are many ways to shape a presumption and its consequences. In conclusion, I argue that presumptions should always be tailored to a certain case and should attempt to reconcile the collective goal with the individual goal. To that end, policy-makers should aim to create collective presumptions of fact, based on the statistical evidence in a certain mass harm case, as opposed to presumptions of law. [ABSTRACT FROM AUTHOR]

Prior research on the global diffusion and harmonization of antitrust (competition) laws mainly focused on the motivations of countries newly adopting or reforming their national laws. This article instead inquires about the motivations of the powerful states promoting these laws internationally, primarily focusing on the United States. It finds that trade protectionist --rather than globalist-- interests and ideas prompted the United States' promotion of strong international antitrust norms in the 1990s. Analyzing Congressional documents and debates in the 1980s, it shows that American import-competing companies framed foreign industrial policies as cartelization to legitimize their demands for trade protections within the dominant framework of free markets and domestic antitrust laws. The political salience of this narrative in Congress contributed to the preparation of the 1988 Trade Laws and the 1990 trade negotiations with Japan, which formalized the United States' preference for strong international antitrust norms during the 1990s. These findings highlight that, ironically, 'anti-market' reasons can also motivate 'pro-market' norm diffusion. [ABSTRACT FROM AUTHOR]

As corporations continue to prioritize environmental, social. and governance (ESG) improvements alongside profit, cooperation with competitors may be an important part of their toolbox. In particular. cooperation can help to advance initiatives like the elimination of an unsustainable product type, which is a drastic step a corporation likely would not take on its own.forfear of hurting its bottom line and customer loyalty. The issue is that agreements among competitors to engage in such steps may violate antitrust laws, as suggested by the Justice Department in the Trump administration and numerous state attorneys general. This Comment uses the term "green product fixing" to rejer to the practice of a business entering into agreements with its competitors regarding environmentally-focused product standards and identifies two principal reasons why antitrust law niayspell troublejor green product fixing. First. antitrust case law is clear that self-regulation in the form of extra-governmental product standards and codes Of conduct is a violation of the Sherman Antitrust Act. Second, while the law does have some room to permit agreements that would otherwise be unlawful, based on certain o#setting procompetitive benefits. jactors like a reduction in carbon emissions or pollution would not be considered as procompetitive benefits under the current application of United States antitrust law. This Comment argues that a different type of analysis from that traditionally used in antitrust law is necessary with respect to green product fixing. The traditional analysis focuses on consumer welfare but does not capture the benefit to consumers, as members of society, from the reduction in negative externalities resulting.from a cooperation agreement. This Comment proposes balancing the traditional analysis with consideration of environmental benefits that trickle down to consumers. It also evaluates potential avenues for legislative and.judicial implementation of such an analysis. [ABSTRACT FROM AUTHOR]

Economists are often called upon as expert witnesses by the parties involved in antitrust litigation. One challenge they may face in US federal courts is compliance with the Daubert standard of admissibility of expert testimony. The interplay between model applicability and the Daubert standard is analyzed, suggesting the importance of distinguishing between weak applicability claims, those that state that a model’s critical assumptions are shared by the target, and strong applicability claims, those that connect empirical models and quantitative market features. Recent antitrust cases in which expert testimonies based on economic models have been assessed following the Daubert standard are examined using this framework. Some normative implications are drawn concerning how to improve judges’ assessment of model-based arguments. [ABSTRACT FROM AUTHOR]

This response to the other Articles in this issue acknowledges the importance of some of the obstacles to sound antitrust-policy analysis that others find insurmountable but contends that they can and must be overcome, explains why I think some critiques of my approach are ill-specified and indefensible, clarifies some oligopolistic-conduct-related concepts my study uses about which one contributor poses questions, restates in my terminology the arguments of two contributions that delineate and evaluate particular E.U. antitrust policies and comments on some of the normative claims these two articles consider, and expresses my appreciation of the positive book review that two scholars have supplied. [ABSTRACT FROM AUTHOR]

I criticize two features of the new book by Richard Markovits. One is the notion that ethics or moral judgments should be part of our analysis of antitrust. The other is the notion that market definition is incoherent. [ABSTRACT FROM AUTHOR]

Richard Markovits' Welfare Economics and Antitrust Policy is, without a doubt, the most expansive and thoughtful effort to assess antitrust policy from the point of view of welfare economics. Unfortunately, I cannot comment in a meaningful way on the specifics of his analysis because after teaching antitrust for 30 years, I have become a nonbeliever. I do not believe any interpretation of today's general antitrust policies, or the economics on which they are based, can be reconciled with any known version of "welfare." The principal reason for this state of affairs is that antitrust scholars and courts cling to goals that are misguided and theories that have not evolved despite an avalanche of information now available that strongly suggests, if not proves, that there is little connection between standard antitrust goals and welfare. Thus, with great reluctance, I question whether the analysis found in Richard's Welfare Economics and Antitrust Policy is worth the effort or ultimately gets us anywhere. My inkling is that Richard realizes this too. [ABSTRACT FROM AUTHOR]

Prof. Markovits provides a verbal definition of anticompetitive contrived oligopolistic conduct that is mathematical in its precision. I highlight two questions arising from that definition. The first question involves an ambiguity about how firms' beliefs about each others' potential reactions to their moves affect how firms evaluate the profitability of those moves. The second question regards whether and in what circumstance strategic ignorance—a firm's decision to avoid relevant information in order to influence the behavior of its rival—should be considered anticompetitive. The increasing use of artificial intelligence pricing algorithms highlights the practical importance of both questions. [ABSTRACT FROM AUTHOR]