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Full-Text Articles in Law

Valuing Social Data, Amanda Parsons, Salome Viljoen Jan 2024

Valuing Social Data, Amanda Parsons, Salome Viljoen

Articles

Social data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production that is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that …


Tying Law For The Digital Age, Daniel A. Crane Jan 2024

Tying Law For The Digital Age, Daniel A. Crane

Articles

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with re-spect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A con-ventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. …


At The Nexus Of Antitrust & Consumer Protection, Luke Herrine Jan 2023

At The Nexus Of Antitrust & Consumer Protection, Luke Herrine

Articles

This Essay uses Section 5 of the Federal Trade Commission Act to examine the theoretical and practical relationship between antitrust and consumer protection law. It argues that, since roughly 1980, there has been a hegemonic "neoliberal"framework, one that has in recent years been challenged by an emerging "moral economy" framework. The neoliberal framework conceptualizes antitrust as preventing firms from conspiring to throttle output, with a focus primarily on consumers' interests in low prices, and consumer protection as making consumers informed, rational, and able to switch between competitors with relatively low cost. The moral economy framework conceptualizes both areas of law …


Highly Automated Vehicles & Discrimination Against Low-Income Persons, William H. Widen Oct 2022

Highly Automated Vehicles & Discrimination Against Low-Income Persons, William H. Widen

Articles

Law reform in the United States often reflects a structural bias that advances narrow business interests without addressing broader public interest concerns.' This bias may appear by omitting protective language in laws or regulations which address a subject matter area, such as permitting the testing of highly automated vehicles ("HA Vs") on public roads, while omitting a requirement for a reasonable level of insurance as a condition to obtain a testing permit.2 This Article explores certain social and economic justice implications of laws and regulations governing the design, testing, manufacture, and deployment of HA Vs which might advance a business …


Fenceposts Without A Fence, Katherine E. Dr Lucido, Nicholas K. Tabor, Jeffery Y. Zhang Aug 2022

Fenceposts Without A Fence, Katherine E. Dr Lucido, Nicholas K. Tabor, Jeffery Y. Zhang

Articles

Banking organizations in the United States have long been subject to two broad categories of regulatory requirements. The first is permissive: a “positive” grant of rights and privileges, typically via a charter for a corporate entity, to engage in the business of banking. The second is restrictive: a “negative” set of conditions on those rights and privileges, limiting conduct and imposing a program of oversight and enforcement, by which the holder of that charter must abide. Together, these requirements form a legal cordon, or “regulatory perimeter,” around the U.S. banking sector.


Trade's Mini-Deals, Kathleen Claussen Jan 2022

Trade's Mini-Deals, Kathleen Claussen

Articles

The modern consensus is that U.S. trade law is made through statute and through large congressional-executive agreements, both of which maintain Congress' constitutional primacy over the regulation of foreign commerce. Contrary to this understanding, however, short, targeted agreements negotiated by the U.S. executive with foreign trading partners - recently referred to as "mini-deals" - have become a fixture of the trade law landscape over the last three decades in staggering number. More than 1,200 such agreements govern the movement of goods and services in and out of the United States from and to 130 countries. Such deals are not only …


Assessing Amateurism In College Sports, Casey E. Faucon Jan 2022

Assessing Amateurism In College Sports, Casey E. Faucon

Articles

College sports generate approximately $8 billion each year for the National C[artel] Athletic Association and its member institutions. Most of this revenue flows from lucrative television broadcasting deals, which often incorporate the right to commercialize and sell the names, images, and likenesses of college athletes. Under its current revenue scheme, student-athletes-85 percent of whom live below the poverty line-receive a share of zero. For over a century, we've justified this exploitative distribution scheme under a cloak of student-athlete "amateurism." Antitrust challenges to the NCAA's amateurism rules clash with the assumption that "amateurism" is a revered tradition and an important tenet …


The Output-Welfare Fallacy: A Modern Antitrust Paradox, John M. Newman Jan 2022

The Output-Welfare Fallacy: A Modern Antitrust Paradox, John M. Newman

Articles

A fallacy lies at the core of modern antitrust. The same scholars who successfully advanced a singular consumer-welfare goal simultaneously argued that output effects should be the exclusive criterion for analysis. This output-welfare framework entered mainstream discourse, was endorsed by enforcers and judges, and played a pivotal role in the Supreme Court's recent Ohio v. American Express opinion. Yet despite its centrality, outputism has largely escaped notice.
When exposed to systematic evaluation, the previously assumed link between output and welfare breaks down. A wide variety of conduct can push output and welfare in opposite directions. Moreover, purely outputist analysis is …


Alston And The Dejudicialization Of Antitrust, Richard D. Friedman Aug 2021

Alston And The Dejudicialization Of Antitrust, Richard D. Friedman

Articles

A curious feature of NCAA v. Alston is the shoe that didn’t drop, at least not immediately. “Put simply,” Justice Gorsuch wrote for a unanimous Court, “this suit involves admitted horizontal price fixing in a market where the defendants exercise monopoly control.” Given that this pronouncement occurred on page fourteen of the Court’s opinion, one might have expected that the opinion would end on, say, page fifteen, for if there has been one fixed point in American antitrust law it has been that horizontal price-fixing, especially but not only by those with monopoly power, is per se illegal. Instead, the …


Antitrust Antitextualism, Daniel A. Crane Mar 2021

Antitrust Antitextualism, Daniel A. Crane

Articles

Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and conservative …


Labor Organization In Ride-Sharing: Unionization Or Cartelization?, Mark Anderson Jan 2021

Labor Organization In Ride-Sharing: Unionization Or Cartelization?, Mark Anderson

Articles

The sharing economy brings together the constituent parts of a business enterprise into a structure that, on its surface, resembles a business firm, but in crucial ways is nothing like the traditional firm. This includes the ownership of the primary capital assets used in the business, as well as one of the most fundamental features of a firm-the relationship with its labor force. Sharing economy workers are formally contractors, running small businesses as sole entrepreneurs, with the effect that they are excluded from many of the protections made available to workers across the economy. The result is a seeming disparity …


Managerial Incentives To Repeatedly Collude: Frequency, Partners And Governance Rules, Catarina Marvao Dr., Chloé Le Coq Nov 2020

Managerial Incentives To Repeatedly Collude: Frequency, Partners And Governance Rules, Catarina Marvao Dr., Chloé Le Coq

Articles

Cartel recidivism has been discovered among many convicted firms and is often perceived as a result of the limited efficiency of competition policy. The incentives for managers to collude have been linked to the firm’s organizational structure, the corporate culture, and the type of executive compensation packages in place.

To the extent that undetected cartels differ from detected ones in relevant dimensions, the current empirical results on illegal cartels are biased. To tackle this issue, we use a novel dataset of a population of cartels, which were legal in Sweden up until 1993. We contribute to the current debate on …


Antitrust In Attention Markets: Objections And Responses, John M. Newman Jan 2020

Antitrust In Attention Markets: Objections And Responses, John M. Newman

Articles

The modern antitrust enterprise finds itself under attack. Critics complain that enforcement agencies have done nothing to stem an ever-rising tide of market concentration and corporate power. At the center of this critique lies Silicon Valley, home of a new generation of tech giants.

This symposium contribution contends that attention markets represent the largest sector of the modern economy to have gone unnoticed by antitrust regulators. If it is to fulfill its congressional mandate, the antitrust enterprise must begin paying attention to attention markets. A number of objections to this straightforward point have been raised, but each collapses under close …


Ecosystem Competition And The Antitrust Laws, Daniel A. Crane Oct 2019

Ecosystem Competition And The Antitrust Laws, Daniel A. Crane

Articles

Conventional antitrust norms analyze market power—as a stepping stone to anticompetitive effects and, hence, prohibited conduct—from the perspective of product substitutability. Two goods or services are said to compete with one another when they are reasonably interchangeable from the perspective of consumers, or to put it in more formal economic terms, when there is cross-elasticity of demand between them. Conversely, when two goods or services are not reasonably interchangeable, they are not horizontally related and are said not to compete with one another. Since a concern over horizontal agreements and horizontal effects dominate antitrust—courts even analyze vertical agreement or merger …


Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane May 2019

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

Articles

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …


Antitrust In Digital Markets, John M. Newman Jan 2019

Antitrust In Digital Markets, John M. Newman

Articles

Antitrust law has largely failed to address the challenges posed by digital markets. At the turn of the millennium, the antitrust enterprise engaged in intense debate over whether antitrust doctrine, much of it developed during a bygone era of smokestack industries, could or should evolve to address digital markets. Eventually, a consensus emerged: although the basic doctrine is supple enough to apply to new technologies, courts and enforcers should adopt a defendant-friendly, hands-off approach.

But this pro-defendant position is deeply- and dangerously- flawed. Economic theory, empirical research, and extant judicial and regulatory authority all contradict the prevailing views regarding power, …


Procompetitive Justifications In Antitrust Law, John M. Newman Jan 2019

Procompetitive Justifications In Antitrust Law, John M. Newman

Articles

The Rule of Reason, which has come to dominate modern antitrust law, allows defendants the opportunity to justify their conduct by demonstrating procompetitive effects. Seizing the opportunity, defendants have begun offering increasingly numerous and creative explanations for their behavior.

But which of these myriad justifications are valid? To leading jurists and scholars, this has remained an "open question," even an "absolute mystery." Examination of the relevant case law reveals multiple competing approaches and seemingly irreconcilable opinions. The ongoing lack of clarity in this area is inexcusable: procompetitive-justification analysis is vital to a properly functioning antitrust enterprise.

This Article provides answers …


Occupational Licensing And The Limits Of Public Choice Theory, Ryan Nunn, Gabriel Scheffler Jan 2019

Occupational Licensing And The Limits Of Public Choice Theory, Ryan Nunn, Gabriel Scheffler

Articles

No abstract provided.


Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler Jan 2019

Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler

Articles

No abstract provided.


No-Hire Provisions In Mcdonald's Franchise Agreements, An Antitrust Violations Or Evidence Of Joint Employer?, Andrele Brutus St. Val Jan 2019

No-Hire Provisions In Mcdonald's Franchise Agreements, An Antitrust Violations Or Evidence Of Joint Employer?, Andrele Brutus St. Val

Articles

As the archetypical franchisor and industry leader, McDonald’s has come under much public and legal scrutiny in recent years for its business practices and its effects on low-wage and unskilled employees. Its no hire provision—which is a term included in its franchise agreements with franchisees that bars franchisees from hiring each others employees—has been found by economist to suppress wages and stagnate growth. This provision is being challenged under antitrust law while its employment practices are being disputed under labor law. McDonald’s is defending its business practices by presenting two seemingly contradictory defenses. This article explores how McDonald’s position in …


Antitrust's Unconventional Politics, Daniel A. Crane Sep 2018

Antitrust's Unconventional Politics, Daniel A. Crane

Articles

Antitrust law stands at its most fluid and negotiable moment in a generation. The bipartisan consensus that antitrust should solely focus on economic efficiency and consumer welfare has quite suddenly come under attack from prominent voices calling for a dramatically enhanced role for antitrust law in mediating a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values. To the bewilderment of many observers, the ascendant pressures for antitrust reforms are flowing from both wings of the political spectrum, throwing into confusion a conventional understanding that pro-antitrust sentiment tacked left and …


Separation Of Trade Law Powers, Kathleen Claussen Jan 2018

Separation Of Trade Law Powers, Kathleen Claussen

Articles

No abstract provided.


Dispute Settlement Under The Next Generation Of Free Trade Agreements, Kathleen Claussen Jan 2018

Dispute Settlement Under The Next Generation Of Free Trade Agreements, Kathleen Claussen

Articles

No abstract provided.


Further Reflections On Antitrust And Wealth Inequality, Daniel A. Crane Oct 2017

Further Reflections On Antitrust And Wealth Inequality, Daniel A. Crane

Articles

Since I have already published a lengthy academic article on antitrust and wealth inequality, I have the freedom of using this piece to present the key arguments unvarnished by dense citations or technical details (readers interested in those things should consult my earlier article) and to respond to some of the criticisms of my article that have since been levied. My thesis, before and now, is this: claims that antitrust enforcement advances income or wealth progressivity are overstated and rest on simplistic and unrealistic understandings of how antitrust actually operates. While some enforcement actions may generate progressive results, others will …


Trading Spaces: The Changing Role Of The Executive In U.S. Trade Lawmaking, Kathleen Claussen Jan 2017

Trading Spaces: The Changing Role Of The Executive In U.S. Trade Lawmaking, Kathleen Claussen

Articles

Since the earliest days of the republic, the U.S. executive has wielded a significant but constitutionally bounded influence on the direction of U.S. trade law. In the twenty-first century, the growth of free trade agreements has led to an institutionalization of trade norms that permits the executive many more spaces for engagement with trading partners. In addition, other types of quotidian lawmaking extend the power of the executive in both public and hidden spaces beyond congressional delegation, even as that power remains substantially bounded by congressional control. This Article analyzes the dynamics between the branches that will direct future U.S. …


Opening The Red Door To Chinese Arbitrations: An Empirical Analysis Of Cietac Cases (1990-2000), Pat K. Chew Jan 2017

Opening The Red Door To Chinese Arbitrations: An Empirical Analysis Of Cietac Cases (1990-2000), Pat K. Chew

Articles

This article reveals evidence-based details of the China International Economic and Trade Arbitration Commission (CIETAC) arbitral proceedings (1990-2000), allowing unprecedented insights into Chinese international business arbitration. It begins by confirming the prominence of Chinese foreign trade and foreign investment in the global economy and CIETAC’s critical role in securing that prominence. Among other results, the empirical study of CIETAC awards finds: (i) the parties were of diverse nationalities, most commonly with disputes between a Chinese party and a foreign party; and (ii) the majority of cases were sales and trade disputes, although a sizable number were investment/joint venture disputes. Regarding …


The Next Generation Of U.S.-Africa Trade Instruments, Kathleen Claussen Jan 2017

The Next Generation Of U.S.-Africa Trade Instruments, Kathleen Claussen

Articles

No abstract provided.


Sharing Economy Meets The Sherman Act: Is Uber A Firm, A Cartel, Or Something In Between?, Mark Anderson Jan 2017

Sharing Economy Meets The Sherman Act: Is Uber A Firm, A Cartel, Or Something In Between?, Mark Anderson

Articles

The sharing economy is a new industrial structure that is made possible by instantaneous internet communication and changes in the life, work, and purchasing habits of individual entrepreneurs and consumers. Antitrust law is an economic regulatory scheme dating back to 1890 in the United States that is designed to address centrally controlled concentrations of economic power and the threats that those concentrations pose to consumer interests and economic efficiency. In order to accommodate a modern enterprise structure in which thousands or millions of independent contractors join forces to provide a service by agreement among themselves, antitrust law requires re-envisioning and …


The Antitrust Jurisprudence Of Neil Gorsuch, John M. Newman Jan 2017

The Antitrust Jurisprudence Of Neil Gorsuch, John M. Newman

Articles

In 2017, the U.S. Senate confirmed Neil M. Gorsuch's nomination to serve on the Supreme Court. Like Justice Stevens before him, Gorsuch's primary area of expertise is antitrust law. Like Stevens, Gorsuch both practiced and taught in the field before joining the bench. As a judge for the Tenth Circuit Court of Appeals, Gorsuch penned multiple substantive antitrust opinions.

His unique expertise will likely situate Gorsuch as one of the Court's leading voices on antitrust matters for decades to come. A close examination of his prior antitrust opinions thus offers vital insight into his approach to antitrust principles and execution. …


Why Intra-Brand Dealer Competition Is Irrelevant To The Price Effects Of Tesla's Vertical Integration, Daniel A. Crane Jan 2017

Why Intra-Brand Dealer Competition Is Irrelevant To The Price Effects Of Tesla's Vertical Integration, Daniel A. Crane

Articles

"In recent years, Tesla Motors (recently renamed Tesla) has been engaged in a state-by-state ground way for the right to distribute it’s all-electric vehicles directly to consumers. The car dealers' lobby, with the political backing of General Motors, has fiercely battled back, relying on decades-old state dealer protection laws to argue that Tesla is legally bound to distribute through franchised dealers. Through a combination of favorable state legislative and judicial decisions, Tesla has won the right to distribute directly in many states, but remains categorically barred from direct distribution in important states like Michigan and Texas--and hence all direct distribution …