\u3ci\u3eAmEx\u3c/i\u3e and Post-Cartesian Antitrust

I. Introduction II. Situating American Express ... A. Different Sides of the American Express Opinion ... 1. Two-Sided Markets ... 2. The American Express Opinion ... B. The Real Issue Is Messy, Not Two-Sided, Markets … C. The Many Messes of Modern Markets III. Competition in Messy Markets ... A. Simple Competition in Simple Markets ... B. More Complex Competition in Messier Markets ... C. American Express: The Competition Is in the Pudding IV. The Many Sides of AmEx’s Rightness ... A. A Burden Best Born by Plaintiffs ... B. Economic Theory as a Question of Law or of Fact? V. Conclusio

Administrative Antitrust

Antitrust has long been treated as exceptional by the courts. This article argues that the Supreme Court is moving away from this exceptionalist treatment of antitrust, and is working to bring antitrust within a normalized administrative law jurisprudence. That is, we are moving into an era of Administrative Antitrust, where, to the extent possible, antitrust matters are to be handled in the first instance by administrative agencies. This transition to administrative antitrust results from three factors in the Supreme Court’s recent jurisprudence: the Court’s growing discomfort with the vicissitudes of economic theory; the Court’s preference for agencies, with Congressionally-delegated policy-making authority, to make policy decisions instead of the courts; and the Court’s growing preference for generalized administrative procedure over field-specific law. To make this argument, this article presents a new synthesis of the Court’s recent antitrust and regulatory cases, using them to argue that in the modern administrative state, our traditional approach to antitrust is backwards: where possible, courts should embrace agency jurisdiction over antitrust issues, and exercise the same procedural oversight over substantive agency decisionmaking that characterizes the relationship between agencies and the courts in every other area of regulatory law. In antitrust terms, this can be seen as a strong revitalization of the implied repeal doctrine; in Constitutional terms, this can be seen as based on a separation of powers understanding, one that is driving much of the Court\u27s anti-exceptionalism agenda. This argument is largely descriptive, describing the developing state of antitrust law under principles of modern administrative law. The normative conclusion is more complex: while the trajectory suggested in this article is sound as a matter of administrative and regulatory law, it paints a potentially troubling picture for the future of sound antitrust law

Data Security and the FTC\u27s UnCommon Law

There were more data breaches in 2014 than any prior year, including the well-publicized attacks on Sony, Target, JPMorgan, and Home Depot—and uncountably more on individuals and smaller companies. This pace continued into 2015, with attacks against Anthem BCBS, Hacking Team, eBay, Trump Hotels, and Ashley Madison, and with a notable expansion into attacks on government targets, including major breaches from OPM and the IRS. Over the past 15 years, and in response to the lack of any comprehensive legal framework for addressing data security concerns, the FTC has acted as the primary regulator of data security practices in the United States. In this role, the FTC has used ad-hoc enforcement of its statutory “unfair acts and practices” authority to develop a “common law” of data security. This Article raises concerns that the FTC’s self-styled “common-law” approach to data security regulation is yielding an unsound body of law. It argues that the FTC’s approach lacks critical features of the common law that are necessary for the development of jurisprudentially legitimate rules, and also that this approach raises jurisdictional and due process concerns. It builds on these critiques to recommend an alternative approach for the FTC to consider: treating a firm’s lack of an affirmative data security policy as an unfair practice. In so doing, this Article makes contributions to ongoing pressing discussions about how the law and regulators should respond to data security issues. It also makes contributions to ongoing scholarly discussions of agency choice of procedure and due process, both of which are of active and increasing interest in the administrative and regulatory law communities

Encryption Congress Mod (Apple + CALEA)

We are in the midst of the latest iteration of the “crypto wars.” These conflicts, nominally waged between proponents of strong encryption technologies on the one hand and law enforcement and national security interests on the other, are the natural result of increased availability and use of strong encryption throughout the communications ecosystem. Strong encryption makes it difficult, in some cases effectively impossible, for the government to obtain information from individuals – even in cases where it has lawful basis for demanding and legitimate need to obtain access to that information. The availability of a technology that effectively moots the government’s ability to compel the disclosure of information shifts the balance of power between individuals and the government. The task of rebalancing these powers ultimately falls to the political process, and, in specific, to Congress. This article uses CALEA, a law adopted in 1994 during the previous iteration of the crypto wars, as a lens to understand how Congress can, and is likely to, respond to this changing balance of power

AmEx and Post-Cartesian Antitrust

The Supreme Court’s 2018 opinion in American Express v. Ohio is among the most important – and divisive – antitrust opinions in the modern era of antitrust law. The simplest statement of Justice Thomas’s opinion for the majority is that it saw a 5 Justice majority of the Court fully embrace the relatively new economic understanding of two-sided markets. Supporters of the majority opinion almost uniformly view it as an obviously-correct application of important and generally-accepted recent development in economic theory. Those more amenable to Justice Breyer’s dissenting opinion do not necessarily reject the theory of two-sided markets but instead would treat arguments premised on this theory as a pro-competitive justification (that is, a defense) to what could reasonably be understood as potentially anticompetitive conduct under prevailing antitrust economics. The central argument of this paper is that both perspectives miss the forest for the trees. The Court’s American Express opinion is not narrowly about whether (or how) antitrust law should embrace the theory of two-sided markets. Rather, I argue, this opinion is part of the Court’s ongoing efforts to understand how antitrust law should evaluate markets that are not neatly “horizontal” or “vertical. I call these efforts to understand competition in markets that are not clearly horizontal or vertical “post-Cartesian” antitrust, and describe these markets as “messy markets.” The important antitrust cases today do not fit neatly into the mold of either horizontal or vertical conduct. Simple horizontal or vertical market structures are not often the subject of antitrust litigation today. We see this in cases ranging from Apple v. Pepper (and the earlier Apple e-books litigation), to the AT&T-Time Warner merger litigation, from Leegin to Actavis, and of course in American Express. Indeed, the market structures in these cases are so different from horizontal and vertical markets that the tools developed for analysis of horizontal and vertical markets are as inapposite to them as SCP methodologies are to markets for differentiated products, markets characterized by rapid innovation, entry, or network effect, and high fixed costs

Telemarketing, Technology, and the Regulation of Private Speech: First Amendment Lessons from the FCC\u27s TCPA Rules

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent (such as Reed v. Town of Gilbert and Sorrell v. IMS Health) and technological & regulatory developments (such as the FCC’s ongoing consideration of rules that would allow or require prospective callers to implement technologies that obviate many of the TCPA’s concerns). The TCPA is the primary law prohibiting “robocalls” – phone calls made using autodialers or pre-recorded messages without the consent of the call recipient. In recent years robocalls have become one of the primary consumer protection issues facing regulators – with more than 4.1 billion of these calls placed eachmonth, consumer concern about them dominate complaints received by both the FCC and FTC. Simultaneously, as cellphones have become a ubiquitous means by which individuals engage with one another and the public square, the scope of the TCPA has expanded from protection of the privacy of the home (long recognized as Constitutionally permissible) to a more general shield from unwanted communications (generally not Constitutionally permissible). Because the TCPA regulates speech, it has been subject to repeated First Amendment challenges since it was enacted in 1991. Those challenges have consistently been reviewed subject to intermediate scrutiny, under which the statute has consistently survived. Recent developments in First Amendment precedent, however, suggest that such challenges would likely be subject to strict scrutiny today. Moreover, recent technological and regulatory developments suggest that the statute is not sufficiently tailored to survive application of intermediate scrutiny, let alone its stricter cousin. Given the sharp increase in TCPA suits in recent years -- from just 14 suits in 2007 to nearly 5,000 in 2016 – and this legal evolution, this article provides analysis relevant to certainly-forthcoming judicial and regulatory consideration of the TCPA. The TCPA also raises difficult questions beyond the traditional First Amendment analysis. For instance, the government itself regulates many aspects of the architecture of the telephone network. In this role, it has slowed or prevented the adoption of technologies that could dramatically reduce the problems the TCPA seeks to address by curtailing speech in order to (ineffectively) address. And the TCPA is largely premised on the government’s important interest in protecting the sanctuary of the home as a place in which individuals can be free from intrusions from the outside world. But as mobile telephones increasingly displace residential wireline telephones, the TCPA’s effect has grown sub silentio from protecting the sanctuary of the home to protecting the sanctuary of the phone. These issues raise important questions about the government’s power to regulate private speech, particularly in an era of rapid technological change