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Full-Text Articles in Business Law, Public Responsibility, and Ethics

Avoiding The Pitfalls Of Net Uniformity: Zero Rating And Nondiscrimination, Christopher S. Yoo Nov 2016

Avoiding The Pitfalls Of Net Uniformity: Zero Rating And Nondiscrimination, Christopher S. Yoo

Faculty Scholarship at Penn Law

The current debate over network neutrality has not fully appreciated how service differentiation can benefit consumers and promote Internet adoption. On the demand-side, service differentiation addresses the primary obstacle to adoption, which is the lack of perceived need for Internet service, and reflects the growing heterogeneity of consumer demand. On the supply-side, monopolistic competition has long underscored how product differentiation can create stable equilibria with multiple providers – notwithstanding the presence of unexhausted economies of scale – by allowing competitors to target subsegments of the overall market that place a higher value on particular services. Conversely, prohibiting service differentiation would restrict competition ...


Antitrust Balancing, Herbert J. Hovenkamp Apr 2016

Antitrust Balancing, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust litigation often confronts situations where effects point in both directions. Judges sometimes describe the process of evaluating these factors as “balancing.” In its e-Books decision the Second Circuit believed that the need to balance is what justifies application of the rule of reason. In Microsoft the D.C. Circuit stated that “courts routinely apply a…balancing approach” under which “the plaintiff must demonstrate that the anticompetitive harm…outweighs the procompetitive benefit.” But then it decided the case without balancing anything.

The term “balancing” is a very poor label for what courts actually do in these cases. Balancing requires that ...