Alessandro Acquisti, Curtis Taylor, and Liad Wagman ‘The Economics of Privacy’ (2016) Journal of Economic Literature 54(2) 442

This article – which can be found here – summarises theoretical and empirical research on the economics of privacy. It focuses on the economic value and consequences of protecting and disclosing personal information, and on consumers’ understanding and decisions regarding the trade-offs associated with the privacy and the sharing of personal data. Their starting point is that the economics of privacy is a branch of information economics. Economists’ interest in privacy has primarily focused on its informational dimension: the trade-offs arising from protecting or sharing of personal data. At its core, the economics of privacy concerns the trade-offs associated with the balancing of public and private spheres between individuals, organizations, and governments. In this regard, the authors identify a number of important characteristics of privacy and personal information as economic goods: First, the value of keeping some personal information protected, and the value of it being known, are almost entirely context-dependent and contingent on essentially uncertain combinations of states of…

Darren S. Tucker ‘The Proper Role of Privacy in Merger Review’ CPI Antitrust Chronicle May 2015 (2)

This is  a (short) paper on the proper role of privacy in merger review, which can be found here. While focusing mainly on the US (where there have “been increasing calls for the Federal Trade Commission (“FTC”) and U.S. Department of Justice (“DOJ”) to consider the potential loss of consumer privacy as a factor in their merger reviews and to challenge mergers of firms with large stores of personal data that otherwise pose no apparent competitive issues”), it could be read more generally. The argument in this paper is quite straightforward: the law is clear that non-competition factors – such as standalone consumer concerns – cannot be considered in antitrust analysis. Further, the law seems to be on sound policy grounds. The paper begins by arguing that there are good reasons why privacy should not be applied as a competitive parameter. First, there are a variety of concepts of privacy, and it is unclear which one should be applied. Secondly,…

Jorge L. Contreras ‘FROM PRIVATE ORDERING TO PUBLIC LAW: THE LEGAL FRAMEWORKS GOVERNING STANDARDS-ESSENTIAL PATENTS’

This paper, focusing on the interaction of standards and international law, was published in the Harvard Journal of Law & Technology, and can be found here. It starts from the observation that there is a “basic question [about] whether technical standard setting is best conceptualized as a private activity governed most efficiently by its own internal rules and procedures, or whether it is at root a public activity that should be regulated within the sphere of public law.” The article proceeds as follows: after a general introduction to private ordering structures (i.e. rules systems that private actors conceive, observe, and often enforce through extra-legal means) in Part II, Parts III and IV describe how technical standard setting has evolved as a private sector activity. Part V analyses the incorporation of standards bodies’ rules and norms into private law adjudication. Part VI shifts the focus to the public benefits that standard setting affords, and Part VII describes the recent debate regarding public…

Giorgio Monti and Goncalo Banha Coelho ‘Geo-Blocking Between Competition Law And Regulation’

This paper – available at https://www.competitionpolicyinternational.com/geo-blocking-between-competition-law-and-regulation – looks at the European Commission’s initiative to prevent geo-blocking. As I understand it, this is a short version of a larger report requested by the European institutions. Geo-blocking refers to those practices by sellers which make it costly or impossible for consumers with residence in one Member State to obtain goods and services from other Member States. They also include the rerouting of customers away from websites hosted in other Member States to a website hosted in the Member State from where they are based (e.g. customers in Italy rerouted from a “.pt” version of an online store to its “.it” version), without their consent. The paper begins with a review of the main rules in European Competition law devoted to the prevention of restrictions to cross-border competition – which cover mainly contractual restrictions to this type of trade (Art. 101 TFEU) or abuse of dominant position (Art. 102 TFEU). However, no rules…

Lisa Khan ‘The New Brandeis Movement: America’s Antimonopoly Debate’

This paper is a full-blown defence of the New Brandeis movement by one of its most visible proponents. It is to be published in the Journal of European Competition Law & Practice and can be found here: https://academic.oup.com/jeclap/advance-article/doi/10.1093/jeclap/lpy020/4915966 The paper begins by mapping out the emergence of the New Brandeis (or anti-monopoly) movement as a reaction to growing concentration in the American economy. The movement takes its name from Louis Brandeis, who served on the US Supreme Court between 1916 and 1939 and was a strong proponent of America’s Madisonian traditions—which aim at a democratic distribution of power and opportunity in the political economy. The movement is anchored in the following pillars: There are no such things as market ‘forces’. The Chicago School assumes that market structures emerge in large part through ‘natural forces.’ The New Brandeisians, by contrast, believe the political economy is structured through law and policy. The goal of antimonopoly laws is to ensure that citizens are…

Francisco Costa-Cabral, Orla Lynskey, ‘Family ties: The intersection between data protection and competition in EU law’

This article – published in (2017) Common Market Law Review 54 11 – looks at the relationship between privacy and competition law (in the EU). The authors state that, instead of getting into a discussion of whether public policy considerations regarding data privacy should be considered as part of consumer welfare, they are looking instead at the elective affinities between privacy and competition law. Curiously, they seem to reach a conclusion related to competition assessment (i.e. the impact of data protection on consumer welfare): “data protection conditions offered to individuals can reflect the parameters of quality, choice, and innovation” The paper makes two primary arguments:  that data protection law– a framework designed to identify and achieve an optimal level of personal data protection – can provide the normative guidance that competition law lacks in relation to non-price competitive parameters;  it develops a normative benchmark to assess whether certain competition law commitments and remedies should be accepted. The structure of the paper…

Inara Scott ‘Antitrust and Socially Responsible Collaboration: A Chilling Combination?’

This paper, published in the American Business Law Journal and available at https://onlinelibrary.wiley.com/doi/full/10.1111/ablj.12073, argues that efforts by companies to engage in socially beneficial activities (in human rights, environmental issues, labour standards, etc.) may infringe antitrust provisions. Part I sets forth the economic and business justifications for collaborating across businesses, including those between and among competitors, and provides examples of key types of these collaborations. Part II considers the application of antitrust laws and examines the struggle to determine to what extent courts may find the collaborative practices described in Part I acceptable. Based on this analysis, Part III then examines the chilling effect of antitrust law on socially responsible collaborations and considers changes necessary to facilitate these types of transactions. While the article focuses on the Sherman Act, which language is indeed more open than that of subsequent competition acts, the problem the paper discusses is common to most jurisdictions: how is antitrust to respond to these potentially beneficial cooperative efforts,…

Julie Cohen ‘The Regulatory State in the Information Age’

This paper, published in Theoretical Inquiries in Law, and available at eial.tau.ac.il/index.php/til/article/download/1425/1501, is only for the more academically minded and those who are interested in deep theory of regulation and competition law.  It focuses on the challenges that the information society poses to traditional modes of regulation, and provides food for thought and a potential starting point to try to think about challenges to competition law / economic regulation in a wider context. This is despite the repeated use of academic jargon and expressions such as “neoliberal” to mean “unfortunate ideas/developments”. Thus, mariner beware: here be dragons. The arguments made in this paper(which I do not necessarily share) include, among others: (i) that concepts used in classic regulatory schemes (such as market definition and market power for antitrust) were developed for different economic structures and are not very well suited to the information age, which is prone to oligopolistic/undefined markets and platforms markets/infrastructures that are interdependent, create strong path-dependencies and exert…

William E. Kovacic and David A. Hyman ‘Regulatory Leveraging: Problem or Solution?’

This is a paper – published in the George Mason Law Review and available at http://www.georgemasonlawreview.org/wp-content/uploads/Kovacic-and-Hyman_ReadyforJCI.pdf – by Bill Kovacic and David Hyman on the desirability of competition agencies having regulatory competences in addition to those related to antitrust, and on how the spill-over between these various areas of competence may work. The paper provides a theoretical framework (the first of its kind, as far as I’m aware) for the various types of leveraging of competition and other regulatory concerns in practice, both inter- and intra-agencies . It also includes examples of the various types of spill-over that may occur, mainly by reference to FTC work but also including some European authorities; and a cost-benefit analysis of the various types of spill-over (bottom line: “it depends, but regulatory spill-over should mainly be avoided”). Good stuff, potentially useful.