Antitrust and Trade Regulation Commons^™

The Risks Of Health Data Commodification In The Eu Digital Market, Chiara Gallese

Yearbook of Antitrust and Regulatory Studies

This article explores the health data commodification phenomenon in the European Union’s digital market. The emergence of a health marketplace, and the increasing utilisation of health data by both public and private entities, have raised significant concerns about citizens’ rights. This study examines the risks of health data commodification, the EU’s efforts to facilitate data sharing and reuse through the Digital Strategy Corpus of law (DSC) as well as its potential implications on the rights of data subjects. The article investigates the ongoing scholarly debate surrounding the commodification of personal data, and its ethical and legal dimensions. The interdisciplinary approach …

The Creation Of Data Pools As Information Exchanges: Antitrust Concerns, Eugenio O. Peralta

Yearbook of Antitrust and Regulatory Studies

In the digital market, data is a critical resource, but its handling reveals a twosided situation. First, dominant platforms, known as gatekeepers, control major data sources. They may extract data unfairly from dependent partners, or abuse their market position by demanding excessive data for free services, and may also acquire companies solely for their data. The Digital Markets Act counters this by imposing data handling restrictions and portability duties. Conversely, nongatekeeper companies need data access to compete and innovate. The European Data Act addresses this, by granting data portability rights and promoting data sharing spaces, yet a more extensive data …

Digital Data-Driven Mergers: Is A Data-Sharing Remedy A Panacea?, Monika Woźniak-Cichuta

Yearbook of Antitrust and Regulatory Studies

The article contributes to the current debate on the interplay between the data economy and competition law. First, on the basis of theories of harm related to datadriven merger, it is stated that such transactions require a particular assessment in merger control proceedings, rather than having them cleared unconditionally during phase 1. Such examination should take into consideration data-induced market power, not necessarily related to traditionally defined relevant markets. Therefore, it is postulated to take an ecosystem perspective on harm stemming from digital data-driven mergers. Second, the practice of the European Commission is outlined with regard to data-access remedies. It …

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 …

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, …

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 …

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 …

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

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 …

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 …

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 …

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 …

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 …

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 …

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.