Law Commons^™

The Summary Judgment Revolution That Wasn't, Jonathan Remy Nash, D. Daniel Sokol

William & Mary Law Review

The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in …

Monopolizing Digital Commerce, Herbert Hovenkamp

William & Mary Law Review

Section 2 of the Sherman Act condemns firms who “monopolize,” “attempt to monopolize,” or “combine or conspire” to monopolize—all without explanation. Section 2 is the antitrust law’s only provision that reaches entirely unilateral conduct, although it has often been used to reach collaborative conduct as well. In general, § 2 requires greater amounts of individually held market power than do the other antitrust statutes, but it is less categorical about conduct. With one exception, however, the statute reads so broadly that criticisms of the nature that it is outdated cannot be based on faithful readings of the text.

The one …

The Factor/Element Distinction In Antitrust Litigation, Christopher R. Leslie

William & Mary Law Review

Most price-fixing litigation turns on whether the plaintiffs can present sufficient circumstantial evidence from which a reasonable jury could infer that the defendants did, in fact, conspire to raise prices. This generally entails the proffering of plus factors, a type of evidence that suggests parallel conduct by the defendants was the product of collusion, not independent decisions. As their name suggests, plus factors are just that—factors. Proving a collection of factors may be necessary for a plaintiff’s case, but no individual factor is ever required. If it were, it wouldn’t be a factor; it would be an element.

Several federal …

Atomistic Antitrust, Robin C. Feldman, Mark A. Lemley

William & Mary Law Review

Antitrust is atomistic: deliberately focused on trees, not forests. It pays attention to the consequences of individual acts alleged to be anticompetitive.

That focus is misplaced. Companies and markets don't focus on one particular act to the exclusion of all else. Business strategy emphasizes holistic, integrated planning. And market outcomes aren't determined by a single act, but by the result of multiple acts by multiple parties in the overall context of the structure and characteristics of the market.

The atomistic nature of modern antitrust law causes it to miss two important classes of potential competitive harms. First, the focus on …

Artificial Stupidity, Clark D. Asay

William & Mary Law Review

Artificial intelligence is everywhere. And yet, the experts tell us, it is not yet actually anywhere. This is because we are yet to achieve artificial general intelligence, or artificially intelligent systems that are capable of thinking for themselves and adapting to their circumstances. Instead, all the AI hype—and it is constant—concerns narrower, weaker forms of artificial intelligence, which are confined to performing specific, narrow tasks. The promise of true artificial general intelligence thus remains elusive. Artificial stupidity reigns supreme.

What is the best set of policies to achieve more general, stronger forms of artificial intelligence? Surprisingly, scholars have paid little …

No-Fault Digital Platform Monopolization, Marina Lao

William & Mary Law Review

The power of today’s tech giants has prompted calls for changes in antitrust law and policy which, for decades, has been exceedingly permissive in merger enforcement and in constraining dominant firm conduct. Economically, the fear is that the largest digital platforms are so dominant and its data advantage so substantial that competition is foreclosed, resulting in long-term harm to consumers and to the economy. But the concerns extend beyond economics. Critics worry, too, that the large platforms’ tremendous economic power poses risks of social and political harm and threatens our democracy. These concerns have prompted discussions of ways to reinvigorate …