The world’s most downloaded antitrust articles of 2017

As in previous years (see 2015 and 2016), here are the most downloaded antitrust and competition law articles published on SSRN during 2017.

************

1. Amazon’s Antitrust Paradox
by Lina Khan
in Yale Law Journal, Vol. 126, 2017

Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead. Through this strategy, the company has positioned itself at the center of e-commerce and now serves as essential infrastructure for a host of other businesses that depend upon it. Elements of the firm’s structure and conduct pose anticompetitive concerns — yet it has escaped antitrust scrutiny. This Note argues that the current framework in antitrust — specifically its pegging competition to “consumer welfare,” defined as short-term price effects — is unequipped to capture the architecture of market power in the modern economy.

*******

2. Blind Spot: The Attention Economy and the Law
by Tim Wu
in (Forthcoming)

Human attention is a resource. An increasingly large and important sector of the economy, including firms such as Google, Facebook, Snap, along with parts of the traditional media, currently depend on attentional markets for their revenue. Their business model, however, present a challenge for laws premised on the presumption of cash markets. This paper introduces a novel economic and legal analysis of attention markets centered on the “attention broker,” the firms that attract and resell attention to advertisers. The analysis has important payouts for two areas: antitrust analysis, and in particular the oversight of mergers in high technology markets, as well as the protection of the captive audiences from so-called “attentional theft.”

*******

3. Two Artificial Neural Networks Meet in an Online Hub and Change the Future
by Ariel Ezrachi & Maurice E. Stucke
in Oxford Legal Studies Research Paper No. 24/2017

In the future, one may imagine a new breed of antitrust humor. Jokes might start along the following lines: “Two Artificial Neural Network and one Nash equilibrium meet in an online (pub) hub. After a few milliseconds, a unique silent friendship is formed…” Back to the present; we are not sure how this joke might end. Nor can we estimate how funny future consumers would find it. We can, however, explain, at present, how technological advancements have changed, and will continue to change, the dynamics of competition and subsequently the distribution of wealth in society. How algorithms may be used in stealth mode to stabilize and dampen market competition while retaining the façade of a competitive environment. That tale is at the heart of this paper.

*******

4. Big Data, Open Data, Privacy Regulations, Intellectual Property and Competition Law in an Internet of Things World
by Bjorn Lundqvist
in Faculty of Law, University of Stockholm Research Paper No. 1

The interface between the legal systems triggered by the creation, distribution and consumption of Data is difficult to grasp, and this paper therefore tries to dissect this interface by following information, i.e. ‘the data’ from its sources, to users and re-users and ultimately to its consumers in an ‘Internet of Things’, or Industrial Internet, setting. The paper starts with the attempt to identify what legal systems are applicable this process, with special focus on when competition law may be useful for accessing data. The paper conclude that general competition law may not be readily available for accessing generic (personal or non-personal) Data, except for the situation where the Data set is indispensable to access an industry or a relevant market; while sector specific regulations seem to emerge as a tool for accessing Data held by competitors and third parties. However, the main issue under general competition law in the Data industry, at its current stage of development, is to create a levelled playing field by trying to facilitate the implementation of Internet of Things.

*******

5. The Sharing Economy Meets the Sherman Act: Is Uber a Firm, a Cartel, or Something in Between?
by Mark Anderson & Max Huffman
in Columbia Business Law Review (Forthcoming)

The sharing economy is a new industrial structure that is made possible by instantaneous internet communication and changes in life, work, and purchasing habits of individual entrepreneurs and consumers. Antitrust law is an economic regulatory scheme dating to 1890 (in the United States) and designed to address centrally controlled concentrations of economic power and threats that those concentrations would operate to contravene both consumer interest and economic efficiency. Antitrust needs reenvisioning and careful application to accommodate a modern enterprise structure in which thousands or millions of independent contractors joint forces to provide a service by agreement among themselves. The success of Uber, Airbnb, and other sharing economy firms, and the consumer benefits those firms promise, show both how difficult and how important that reenvisioning can be.

*******

6. Joint Tendering Under EU Competition Law
by Cyril Ritter
in (Forthcoming)

From a competition law perspective, subcontracting and consortia both constitute joint tendering. Joint tendering comes down to joint selling, which can constitute an infringement of Article 101 if all its other conditions are met. However, not all joint tendering is anti-competitive joint selling. Joint tendering can also be the expression of legitimate cooperation between firms. A joint tender may be the only way for two firms to produce efficiencies that outweigh the competition concerns, or to be able to tender at all. This article seeks (a) to draw the line between legitimate joint tendering and joint tendering which is actually anti-competitive joint selling, and (b) to draw attention to other theories of harm than joint selling in the area of joint tendering. The EU competition law assessment of joint selling can require a multi-step reasoning drawing on the distinction between competitors and non-competitors (section 2), “object” and “effect” restrictions and joint selling versus joint production (section 3). Section 3 also discusses other theories of harm than joint selling, namely exclusivity clauses and “spillover” information exchanges. Section 4 addresses several common arguments against classifying joint tenders among competitors as restrictions by object, and finds them all unconvincing. Section 5 discusses efficiencies under Article 101(3).

*******

7. Algorithmic Consumers
by Michal S. Gal & Niva Elkin-Koren
in Harvard Journal of Law and Technology, Vol. 30, 2017

The next generation of e-commerce will be conducted by digital agents, based on algorithms that will not only make purchase recommendations, but will also predict what we want, make purchase decisions, negotiate and execute the transaction for the consumers, and even automatically form coalitions of buyers to enjoy better terms, thereby replacing human decision-making. Algorithmic consumers have the potential to change dramatically the way we conduct business, raising new conceptual and regulatory challenges. This game-changing technological development has significant implications for regulation, which should be adjusted to a reality of consumers making their purchase decisions via algorithms. Despite this challenge, scholarship addressing commercial algorithms focused primarily on the use of algorithms by suppliers. This article seeks to fill this void. We first explore the technological advances which are shaping algorithmic consumers, and analyze how these advances affect the competitive dynamic in the market. Then we analyze the implications of such technological advances on regulation, identifying three main challenges.

*******

8. The Rule of Reason
by Herbert J. Hovenkamp
in Florida Law Review (Forthcoming)

Antitrust’s rule of reason was born out of a thirty year (1897-1927) division among Supreme Court Justices about the proper way to assess multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood. This article provides a litigation field guide for antitrust claims under the rule of reason – or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even up to the point of summary judgment, the parties are often uncertain whether a court will apply the rule of reason. Because the choice of rule presents a question of law, it is generally established prior to trial. The first section examines pleading and summary judgment rules, including the role of stare decisis, arguing that stare decisis should apply to a mode of analysis rather than to a specific class of restraints. Then it discusses numerous problems surrounding the burden of proof and the quality of evidence needed to shift the burden or get to a jury. I argue that the plaintiff’s burden for a prima facie case should be relatively stringent for the market power requirement, but relatively light for proof of an anticompetitive act.

*******

9. A New Structured Rule of Reason Approach for High-Tech Markets
by Thibault Schrepel
in Suffolk University Law Review, Vol. 50, No. 1, 2017

Applying the per se illegality doctrine for years has proven to be a mistake. The challenge is now to avoid committing the same error by applying per se legality for practices related to the New Economy — notably predatory innovation. This Article advocates for eliminating per se legality as it relates to innovation issues that stem from ideologies rather than particular facts. Avoiding general per se rules does not mean, however, that we should apply a general rule of reason. Frank H. Easterbrook’s findings demonstrate how filters can create an efficient error-cost framework, but his findings are not well suited for the practices related to the New Economy. This Article proposes implementing a newly structured rule of reason tailored for innovation issues and based on three filters that will suit contemporary antitrust law issues and would considerably improve antitrust law and economic analysis in the long run, while also avoiding false positives.

*******

10. Why the Dynamics of Competition for Online Platforms Leads to Sleepless Nights But Not Sleepy Monopolies
by David S. Evans
in (Forthcoming)

Recent claims that online platforms have secured permanent monopolies, protected by barriers to entry from network effects and stockpiles of data, and should be the focus of intense antitrust and regulatory scrutiny, are inconsistent with the economics, technology, and history of online competition. Online platforms face dynamic competition as a result of: disruptive innovation that provides opportunities for entry; competition from online platforms that have secured a toehold in one area but compete across multiple areas; the fragility of category leadership resulting from the fact that network effects are reversible and entry costs are low; and the prevalence of ad-supported models which result in seemingly disparate firms competing for consumer attention and advertiser dollars. The last two decades of online platform competition demonstrate that category leaders are often toppled, unexpectedly, through some combination of technological change, business model innovations, and cross-platform rivalry. The palpable threat of displacement prevents online platforms from taking their customers for granted. The history of online platform competition also provides empirical refutation of the proposition that data on users protects platform leaders from competition or puts an insurmountable obstacle before entrants. All this points to online platforms facing sleepless nights since any online platform that tries the quiet life of monopoly risks catastrophe.