Antitrust and Trade Regulation Commons^™

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

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 …

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 …

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.

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 …

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 …

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.

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

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 …