Digital Platforms and Antitrust Law

This Article is about “big data” and antitrust law. Big data, for my purposes, refers to digital platforms that enable the discovery and sharing of information by consumers, and the harvesting and analysis of consumer data by the platform. The obvious example of such a platform is Google. The big platforms owe their market dominance not to anticompetitive conduct but to economies of scale. This Article discusses three types of anticompetitive conduct associated with digital platforms: kill zone expropriation, acquisition of nascent rivals, and denial of access to data. There is nothing so unusual about digital platforms that would require a reform of the antitrust laws. Some are described as two-sided markets, but this designation, even after Ohio v. American Express Co., should not present an obstacle to the application of antitrust law. I. Introduction II. Platforms III. Competition Issues ... A. Kill Zone Expropriation ... B. Acquisition of Nascent Rivals ... C. Denial of Access to Data IV. Antitrust Law V. Conclusio

When Should a Case Be Dismissed? The Economics of Pleading and Summary Judgment Standards

This paper applies a simple economic framework to the choice between pleading and summary judgment as points at which a claim can be dismissed. It concludes generally that pleading standards should vary with the evidentiary demands of the associated legal standards and the social costs of litigation. The common law's imposition of higher pleading standards for fraud claims is consistent with this proposition. The theory implies that the rigorous summary judgment standards that have been developed by antitrust courts should lead to a correspondingly rigorous assessment at the pleading stage.

Innovation and Optimal Punishment, with Antitrust Applications

This paper modifies the optimal penalty analysis by incorporating investment incentives with external benefits. In the models examined, the recommendation that the optimal penalty should internalize the marginal social harm is no longer valid as a general rule. We focus on antitrust applications. In light of the benefits from innovation, the optimal policy will punish monopolizing firms more leniently than suggested in the standard static model. It may be optimal not to punish the monopolizing firm at all, or to reward the firm rather than punish it. We examine the precise balance between penalty and reward in the optimal punishment scheme.optimal law enforcement, optimal antitrust penalty, monopolization, innovation, internalization, strict liability, static penalty

Trial Selection Theory: A Unified Model

This paper provides a formal model of the trial selection process that incorporates the Priest-Klein hypothesis and alternative theories of selection. We derive the conditions under which the hypothesis is valid, and examine implications for the relationship between trial outcome uncertainty and litigation. The model suggests a generalization of the hypothesis.

A Framework for Reparations Claims

These remarks, prepared for the Boston College Third World Law Journal Reparations Symposium. compare the goals and viability of reparations claims as tort suits. I contrast two approaches observed in the claims: a doing justice model, which involves seeking compensation in important cases of uncorrected or uncompensated injustice, and a social welfare model that seeks to change the distribution of wealth. Claims under the first category are far more consistent with tort doctrine and likely to meet their goals than social welfare-based claims

DEVELOPMENT LENDING AND THE COMMUNITY REINVESTMENT ACT

These remarks, prepared for the Issues in Community Economic Development conference at Western New England College, provide a brief overview of the law and economics literature on urban economic development. I conclude with a set of principles for legislative reform

Economic Rents and Essential Facilities

This paper presents an economic analysis of the essential facility doctrine of antitrust. According to this doctrine, a firm or group of firms that possesses exclusive access to a cost-reducing facility must be prepared to share such access on fair terms with competitors