Antitrust and Trade Regulation Commons^™

Experimentalist Competition Law Enforcement As A Complementary Data Sharing Toolkit: Learning From Agcm V. Google – Ostacoli Alla Portabilità Dei Dati, Emanuele Fazio

Yearbook of Antitrust and Regulatory Studies

Analysing the Italian case AGCM v. Google – Ostacoli alla portabilità dei dati, this paper scrutinises the “experimentalist architecture” of public competition law enforcement in dealing with data sharing disputes. In AGCM v. Google, the experimentalist competition law enforcement aimed at ensuring and designing the right to data portability provided by Article 20 GDPR. The paper investigates the extent to which the conditions and distinctive features of the experimentalist architecture play a role in AGCM v. Google, which include: strategic uncertainty, polyarchic distribution of powers, high degree of discretion of local agents, dynamic accountability, and the participation of all stakeholders …

The “Amateur” Division I Athlete Is Becoming A Thing Of The Past, So Now What?: Addressing The Action Needed To Preserve Amateurism In College Sports, Elizabeth Hendrickson

University of Miami Law Review

College sports are in a state of logistical chaos. How did we get here? Where do we go next? What does the future of college sports look like? The driving force behind much of this uncertainty is the demise of amateurism at the Division I level of competition. The National Collegiate Athletic Association (“NCAA”) has struggled to define what makes a college athlete an “amateur” since its inception. Over time—and under the NCAA’s purported control—the line between amateur and professional athletes has become increasingly blurred. The NCAA’s failure to maintain the amateur model at the Division I level poses a …

Environmentalism And Antitrust, Albert H. Choi, Daniel A. Crane

Law & Economics Working Papers

In recent years, there has been a proliferation of interest concerning environmental issues and the application of the antitrust laws. Numerous commentators, for instance, have argued that the antitrust enforcement should adjust to reflect the environmental harm (or benefit) that is generated from a competitive condition. In this paper, we take a step back and argue that analysis of the intersection between antitrust and environmentalism should begin with more mundane questions of economics. More specifically, we argue that environmental regulations can inform antitrust analysis by considering (at least) three issues: (1) the impact of environmental regulation on the firms' production …

Nil Tampering, Josh Lens

BYU Law Review

The college athletics landscape has experienced several recent dramatic and monumental changes. In 2018, its governing body, the NCAA, implemented the transfer portal to help universities and athletes manage the process by which athletes transfer to another university. In 2021, the NCAA allowed every athlete the freedom to accept compensation in exchange for the use of their name, image, and likeness (“NIL”). Booster collectives quickly formed to facilitate NIL arrangements and now exert significant financial influence in the athlete recruiting and retention process. Tens of thousands of athletes have used the portal since its inception, with many seeking more NIL …

Understanding Golf’S Civil War: An Antitrust Analysis And Discussion, Emma Hackett

BYU Law Review

For years, professional golf has been ruled by the PGA Tour. But in 2022, the PGA Tour’s monarchy started to crack when LIV Golf, a new Saudi-backed golf league, entered the scene and sued the PGA Tour for antitrust violations. Players and fans had to take sides: the legacy of the PGA Tour or the deep pockets of LIV Golf? The lawsuit resulted in a settlement between the entities, but the complaints exposed dealings engaged in by the PGA Tour that this Note argues are violations of the Sherman Act. Beyond illegality of the Tour’s acts, the dispute between LIV …

Scotus At The Bat: Touching Base With Baseball’S Antitrust Exemption, Porter Y. Schenewark

BYU Law Review

In the longstanding debate surrounding Major League Baseball’s exemption from federal antitrust laws, recent legal developments and Supreme Court dynamics call for a reexamination of the Supreme Court’s 1922 Federal Baseball decision. Drawing parallels between the Court’s landmark decision in Dobbs v. Jackson Women’s Health Organization and the potential reconsideration of Baseball’s exemption, this paper explores the factors at play and the implications for the future of the sport.

Through the Court’s framework of five factors as used in Dobbs, the paper evaluates the nature of the Court’s error, the quality of reasoning, workability, effect on other areas of law, …

The False Choice Between Digital Regulation And Innovation, Anu Bradford

Northwestern University Law Review

This Article challenges the common view that more stringent regulation of the digital economy inevitably compromises innovation and undermines technological progress. This view, vigorously advocated by the tech industry, has shaped the public discourse in the United States, where the country’s thriving tech economy is often associated with a staunch commitment to free markets. U.S. lawmakers have also traditionally embraced this perspective, which explains their hesitancy to regulate the tech industry to date. The European Union has chosen another path, regulating the digital economy with stringent data privacy, antitrust, content moderation, and other digital regulations designed to shape the evolution …

Michał Nowakowski, Sztuczna Inteligencja. Praktyczny Przewodnik Dla Sektora Innowacji Finansowych, Wolters Kluwer Polska, Warszawa 2023, S. 270, Krzysztof Waliszewski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

A review of Michal Nowakowski's book, Sztuczna inteligencja. Praktyczny przewodnik dla sektora innowacji finansowych, Wolters Kluwer Polska, Warsaw 2023, pp. 270

Legal And Practical Aspects Of Sharing And Entrusting Personal Data, Taking Into Account Tourism Regulations During The Covid-19 Pandemic, Stanislaw Hady-Głowiak, Dominik Borek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article presents issues related to the sharing of personal data, and to entrusting data for their processing, with particular emphasis on tourism regulations during the pandemic. The work aims to indicate practical solutions, and to distinguish between situations of entrusting data for processing, a contractor authorized to process them on the basis of a contract, and of sharing of personal data. In the latter case, the most important thing is to verify each time the legal basis authorizing their sharing, and to keep a register of data sharing. In the case of the process of entrusting personal data for …

Commentary In Support Of The Judgement Of The Provincial Administrative Court (Pac) In Warsaw Of 5 July 2023, File Reference: I Sa/Wa 2767/22 – Use Of The Polish Tourist Voucher In Good Faith And Undue Receipt Of Benefits, Dominik Borek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This article cites the facts described in the judgement of the Provincial Administrative Court (PAC) in Warsaw of 5 July 2023, fi le reference: I SA/Wa 2767/22. The commented ruling is of great importance for the future in the context of emerging ideas for the continuation of the Polish Tourist Voucher programme. The latter was originally launched in the context of the spreading of the COVID-19 epidemic, and was intended to enable children and young people to relax as part of the domestic tourism offer, while at the same time supporting tourism entrepreneurs in the difficult pandemic period. The period …

Jurisdictional Competition On Standard-Essential Patents, Wentong Zheng

UF Law Faculty Publications

his Article offers a systematic examination of jurisdictional competition on standard-essential patents (“SEPs”). SEPs are patents essential to technology standards developed by standard-setting organizations (“SSOs”). To reduce potential patent holdup, SSOs generally require SEP holders to commit to licensing SEPs on “fair, reasonable, and nondiscriminatory” (“FRAND”) terms. During the last decade, jurisdictions around the world have been engaged in fierce competition to set the ground rules on FRAND and other requirements for SEP licensing. This Article traces the legal landscape of this jurisdictional competition and examines how three major jurisdictions, the United States, Europe, and China, have developed divergent stances …

The 2023 Merger Guidelines: An Assessment, Herbert Hovenkamp, Tim Wu, James Keyte

Faculty Scholarship

The 2023 Merger Guidelines1 are ten months old, but they still need some unpacking. To help our readers think through the issues that the Guidelines raise, Antitrust magazine asked two experienced legal scholars — Professors Tim Wu and Herbert Hovenkamp — to discuss the Guidelines with Antitrust editorial board member James Keyte. This discussion took place on May 28, 2024. The transcript has been edited for length and readability.

Vertical Restraints In An Amazon World, Martin Edwards

Dickinson Law Review (2017-Present)

Vertical restraints are a peculiarity, even among the dizzying array of contracts subject to antitrust scrutiny. While current law treats vertical restraints permissively, antitrust reformers have added this permissive treatment of vertical restraints to their list of proposed reforms. The reformers have softly proposed that courts apply a presumption of illegality standard for vertical restraints— greater scrutiny than the current standard, the rule of reason. This Article argues that doing so is inadvisable.

Producers and their consumers both want the same thing: the best overall product experience for the money. The critical economic functions of vertical restraints are to enable …

From Anti-Bds To Anti-Esg: The Next Generation Of Boycotting The “Boycott” Is Only Slightly Less Problematic, Kali Venable

Washington and Lee Law Review

In response to an explosion in Environmental, Social, Governance (“ESG”), state lawmakers are enacting statutes to penalize companies that “boycott” industries they seek to protect. This Note first explains how we got here. To do so, it explains how lawmakers used statutes aimed at suppressing the Boycott, Divestment, and Sanctions (“BDS”) movement against Israel as templates for anti-ESG boycott laws. Further, this Note examines the rise of ESG and the subsequent anti-ESG movement that led to the enactment of state anti-ESG boycott laws pertaining to public contracts.

By analyzing the mixed outcomes of recent First Amendment challenges to anti-BDS laws …

The Liv Golf V. Pga Tour Antitrust Case As A Case Study In Federal Civil Procedure, Michael J. Dube

Dickinson Law Review (2017-Present)

This Article uses LIV Golf Inc. v. PGA Tour, Inc., a sophisticated and headline-grabbing antitrust matter, as a means of instantiating federal civil procedure concepts. The first Part of this Article addresses the unsuccessful motion for a temporary restraining order that in many ways shaped how the litigation proceeded. The second Part examines the dance that is discovery through a focus on a drawn-out dispute regarding a single interrogatory. The final Part drills down on a more novel discovery dispute that began the path towards settlement, namely whether the Foreign Sovereign Immunities Act of 1976 and related common-law doctrine …

Antitrust After The Coming Wave, Daniel A. Crane

Articles

A coming wave of general-purpose technologies, including artificial intelligence ("AI"), robotics, quantum computing, synthetic biology, energy expansion, and nanotechnology, is likely to fundamentally reshape the economy and erode the assumptions on which the antitrust order is predicated. First, AI-driven systems will vastly improve firms' ability to detect (and even program) consumer preferences without the benefit of price signals, which will undermine the traditional information-producing benefit of competitive markets. Similarly, these systems will be able to determine comparative producer efficiency without relying on competitive signals. Second, AI systems will invert the salient characteristics of human managers, whose intentions are opaque but …

Surviving The Rule Of Reason: An Antitrust Analysis Of Employment Noncompetes, Erin Lee

Fordham Law Review

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 …

Tender Rejection Under Article 393 Of The Polish Public Procurement Law (Ppl) – Remarks De Lege Lata And De Lege Ferenda, Joanna Affre, Mateusz Restel

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article examines how Poland has implemented Article 85 of Directive 2014/25/EU, and determines what consequences arise from the discrepancies between the wording of Polish and EU provision. The prerequisites that allow contracting authorities to exercise the right to reject a tender, due to the origin of the products covered by it, are identifi ed, and an interpretation of each of these prerequisites is provided. This discussion responds to problems related to the application of Article 393(1) point 4 of the Polish Public Procurement Law (PPL). The paper calls for the amendment of this provision, by introducing an obligation to …

Justification For The Introduction Of The Eu Short-Term Rentals (Str) Regulation In The Context Of The Housing Market In The Eu, Paweł Budny

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Given the priority status of ensuring universal access to decent and affordable housing at the EU level, the EU legislator has highlighted the need for harmonization in the collection of data on short-term rentals of residential units through sharing economy platforms. The dynamic growth of platform tourism, observed across the EU in recent years, justifies the need for the introduction of EU Regulation 2024/1028 on Short-Term Rentals (STR), which imposes on collaborative economy platforms that operate on the short-term property rental market, the obligation to provide relevant authorities with data on landlords and units associated with the services provided. The …

Selected Aspects Of The Organization Of Tourism And Recreation In Natural Areas With Different Status Of Legal Protection, Marcin Pasek, Dominik Borek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

An important place in the strategy of promoting health of modern societies, especially in the post-pandemic world, is played by orienting recommendations on how to spend free time towards tourism and recreation in the natural environment. The utilitarian nature of this type of activity is associated with the need to respect legal provisions, relating to the use of statutory forms of nature conservation, as well as non-statutory protection areas. The aim of the study is to characterize the tourist-recreational use in both of the abovementioned types of ecological habitats, and to indicate the similarities and differences in the conditions of …

Report On The Series Of Seminars On The Mutual Infl Uence Of Competition Law And Labour Law In The Era Of ‘Platformization’, July 2022 – September 2023, Warsaw/Rzeszów – Porto, Agata Jurkowska-Gomułka, Sylwia K. Mazur

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Seminar report

A Wrong In Search Of A Duty: Public Nuisance, Social Media And The Youth Mental Health Crisis, Charles Bachmann

Cardozo Journal of Equal Rights & Social Justice

The note argues that social media companies should be held accountable for their role in the youth mental health crisis through the legal framework of public nuisance law. Drawing parallels to successful cases against tobacco and opioid companies, the author contends that social media platforms, by prioritizing profits over user well-being, contribute to widespread harm such as anxiety, depression, and suicide among youth. While acknowledging concerns about judicial overreach and the challenges of proving causation, the note advocates for judicial intervention as a necessary corrective in the absence of effective legislative action.

Countering ‘Dark Patterns’ On The Example Of The Activities Of The President Of The Offi Ce Of Competition And Consumer Protection (Uokik) In Poland, Damian Kazimierski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Online shopping is becoming an everyday occurrence for an increasing number of people, and many activities are moving online. With the spread of running day-to-day errands online, the knowledge of consumer behaviour on websites and mobile apps is also advancing. However, the experiences of cognitive psychologists and sociologists are becoming an incentive for website owners and graphic designers to use social engineering to get users to act in accordance with the will of the entrepreneur. The use of ‘dark patterns’ raises the need to counteract their effects on consumers. Several tools are available to supervisory authorities to counteract the use …

Challenges Of Competition And Consumer Protection Law And Regulation, Dominik Borek, Dominik Wolski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Editorial Foreword

Vol. 13(2) - Entire Issue

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Entore issue 13(2)

Privacy Risks And Regulatory Challenges In Smart Grids And Renewable Energy Systems, Mikołaj Rajca

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Smart grid technologies are central to the global shift towards a more efficient and sustainable energy infrastructure, integrating advanced digital systems with traditional power networks. While these technologies offer significant benefits, including enhanced energy management and the seamless integration of renewable energy sources, they also introduce complex privacy challenges. The extensive data collection and real-time communication capabilities inherent in smart grids raise concerns over consumer privacy, data breaches, and cybersecurity threats. This paper critically examines these privacy risks within the context of evolving regulatory frameworks such as the GDPR, NIS2 Directive, and the forthcoming EU AI Act. The discussion emphasizes …

Termination Of Contracts Concluded By Entrepreneurs With Consumers For An Indefinite Period Of Time In The Light Of The Standpoint Of The President Of The Offi Ce Of Competition And Consumer Protection (Uokik) In The Amazon Case, Michał Kalinowski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This article discusses the issue of permissibility of the termination of contracts concluded by entrepreneurs with consumers for an indefi nite period of time. The article presents the previous line of decisions of the President of the Offi ce of Competition and Consumer Protection (UOKiK) and the case-law of Polish courts concerning the so-called ‘valid reasons’ as a basis of such termination, both from the perspective of termination clauses and modifi cation clauses. This past practice is juxtaposed with the most recent position of the UOKiK President in the Amazon case, and the changes in the terms of service introduced …

‘Intentionality’ As A Feature Of The Subjective Side Of The Tort Of Allowing A Violation Of The Prohibition Of Agreements Restricting Competition, Marta Dobosz, Jarosław Szewczyk

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

In the event of finding that an entrepreneur has violated the prohibition specifi ed in Article 6(1) items 1–6 of the Polish Act on Competition and Consumer Protection or in Article 101(1) letter a–e of the TFEU, liability may also be borne by a manager who, in the performance of their function and within the duration of the established infringement, intentionally allowed such an infringement to occur through their action or omission (see Art. 6a of the Act of Competition and Consumer Protection). The purpose of assigning this liability is to demonstrate the individual features of the action in question. …

Attempts To Define The Concept Of ‘Dark Patterns’ In The Doctrine And Activities Of Authorities Of Eu Member States, Damian Kazimierski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The aim of the paper is to trace the different ways of defining the concept of ‘dark patterns’ in the doctrine and decisional practice of authorities operating within the territory of the European Union, with particular attention placed on the Polish perspective. The publication addresses the main elements of this notion, and indicates the premises that lack consensus in the academic community and in the decisional practices of the authorities. These include, first of all, the requirement of intentionality of the use of social engineering in order to induce the user of a website or application to take the expected …

Pengungkapan Model Mediasi Kepada Pihak Bersengketa Oleh Mediator Sebagai Pelaksanaan Prinsip Informed Consent (Kajian Mediasi Sektor Perbankan), Tri Harnowo, Fahmi Shahab

Jurnal Hukum & Pembangunan

The mediation techniques commonly used by mediators are facilitative, evaluative, or hybrid models. The choice of mediation model generally depends on the complexity of the dispute, the nature of the relationship, and the expectations for further cooperation. This research examines the application and disclosure of mediation models in the banking sector. The methodology used is normative, analyzing regulations related to the application and disclosure of mediation models in the banking sector. Data collection was obtained from primary legal materials in the form of legislation, secondary legal materials such as professional codes of ethics, books, articles, and scientific journals, and tertiary …