No-Fault Digital Platform Monopolization

The power of today’s tech giants has prompted calls for changes in antitrust law and policy which, for decades, has been exceedingly permissive in merger enforcement and in constraining dominant firm conduct. Economically, the fear is that the largest digital platforms are so dominant and its data advantage so substantial that competition is foreclosed, resulting in long-term harm to consumers and to the economy. But the concerns extend beyond economics. Critics worry, too, that the large platforms’ tremendous economic power poses risks of social and political harm and threatens our democracy. These concerns have prompted discussions of ways to reinvigorate section 2 of the Sherman Act. One of those suggestions is no-fault monopolization, a theory that dispenses with the conduct requirement of monopolization. Much of the appeal of no-fault monopolization, first considered in the late 1960s through the 1970s, is that it would sidestep the difficult “bad act” and “anticompetitive effects” requirements of section 2, which are particularly difficult to prove in digital platform markets, for reasons that the Article addresses. This Article discusses why no-fault monopolization would be inadvisable, though stronger section 2 enforcement is long overdue. Rather than adopt an approach with uncertain results that might do more harm than good, I suggest more modest changes tailored to specific problems that could nevertheless reinvigorate section 2. They include greater vigilance in identifying improper conduct, and seeking a steady widening of the scope of exclusionary conduct through bolder choice of cases, moving toward greater flexibility in the analysis of anticompetitive effects, and overcoming some of the skepticism surrounding the legitimacy and value of qualitative evidence, including intent evidence

Reimagining Merger Analysis to Include Intent

Applications of Section 7 of the Clayton Act have been deficient in identifying and prohibiting anticompetitive mergers, particularly those involving the acquisition of nascent competitors in digital markets. While the language of the Clayton Act is flexible and broad, its implementation has evolved into a narrow, economic-focused analysis that requires (or expects) quantitative evidence to show competitive harm and establish a prima facie case. This approach sets an unusually high bar for plaintiffs when the mergers involve dynamic technology markets in which firms compete more on innovation than on price, primarily because the preferred economic tools are not well equipped to measure and predict innovation harms in the long run. The problems are exacerbated when dominant firms acquire nascent competitors because the potential competitive impact of their acquisition is inherently even more uncertain and therefore the quantifiable metrics even less helpful. This Article makes a case for reimagining merger analysis to include intent to help satisfy the plaintiff’s evidentiary burden and strengthen merger enforcement. Insisting on, or strongly preferring, empirical data to demonstrate effects of a proposed acquisition when that data is unavailable means that merger law will fail in its core mission for at least certain types of mergers. Therefore, the better approach is to be open to the use of other sources of evidence, such as intent, to supplement standard economic evidence. This Article explains why and how intent evidence can be probative in predicting effects, particularly in the case of a dominant digital platform’s acquisition of a nascent rival. To illustrate, this Article draws on the collection of emails and statements made by Facebook’s executives relating to the company’s famous acquisitions of Instagram and WhatsApp. Though many courts and commentators today are dismissive of the value of intent, integrating it into merger analysis would not require legislative action because the relevant statutory language is broad and no major case has barred its use. The Article concludes by addressing the main objections that critics have raised about the use of intent evidence in antitrust analysis generally

Search, Essential Facilities, and the Antitrust Duty to Deal

Search, Essential Facilities, and the Antitrust Duty to Dea

Search, Essential Facilities, and the Antitrust Duty to Deal

Search, Essential Facilities, and the Antitrust Duty to Dea

Discrediting Accreditation?: Antitrust and Legal Education

This Article addresses the major antitrust issues concerning ABA accreditation. The first issue pertains to the reach of the unsettled state action and petitioning immunity doctrines, and the First Amendment. The analysis of state action and petitioning immunity draws a distinction between restraint on competition flowing from decisions to grant or deny accreditation and their associated state use on the one hand, and restraints on competition emanating from the accreditation standards themselves on the other. This Article concludes that, though the decisions may be immunized, neither doctrine clearly exempts restraints resulting from the accreditation standards from antitrust liability. With respect to the First Amendment defense, this Article takes issue both with the characterization of accreditation as mere speech and with the view that the First Amendment absolutely protects pure speech effectuating a restraint on competition. This Article proceeds as follows: Part II briefly describes the ABA accreditation system, without detailed reference to specific procedures or standards. Part III then analyzes the scope of the antitrust state action and petitioning immunity doctrines, and the First Amendment free speech clause as it relates to accreditation practices. Part IV develops arguments for concluding that the ABA accreditation system is anticompetitive. And Part V concludes by noting that, even if the current accreditation system can withstand an antitrust challenge, relaxing the ABA’s accreditation standards is desirable for policy reasons

Ghost admixture in eastern gorillas

Archaic admixture has had a substantial impact on human evolution with multiple events across different clades, including from extinct hominins such as Neanderthals and Denisovans into modern humans. In great apes, archaic admixture has been identified in chimpanzees and bonobos but the possibility of such events has not been explored in other species. Here, we address this question using high-coverage whole-genome sequences from all four extant gorilla subspecies, including six newly sequenced eastern gorillas from previously unsampled geographic regions. Using approximate Bayesian computation with neural networks to model the demographic history of gorillas, we find a signature of admixture from an archaic ‘ghost’ lineage into the common ancestor of eastern gorillas but not western gorillas. We infer that up to 3% of the genome of these individuals is introgressed from an archaic lineage that diverged more than 3 million years ago from the common ancestor of all extant gorillas. This introgression event took place before the split of mountain and eastern lowland gorillas, probably more than 40 thousand years ago and may have influenced perception of bitter taste in eastern gorillas. When comparing the introgression landscapes of gorillas, humans and bonobos, we find a consistent depletion of introgressed fragments on the X chromosome across these species. However, depletion in protein-coding content is not detectable in eastern gorillas, possibly as a consequence of stronger genetic drift in this species