Commentary

Epic v. Google Offers Courts Chance To Correct Course on “Right To Repair”

Following the Federal Trade Commission’s 2021 publication of “Nixing the Fix: An FTC Report to Congress on Repair Restrictions,” private “right to repair” cases have multiplied against companies that leverage their market power in a “primary equipment market” (e.g., tractors) to force their customers also to purchase their offerings in “aftermarkets” (e.g., tractor repairs) that otherwise would be competitive. Daniel McCuaig argues that the application of the 1992 Supreme Court decision in Eastman Kodak Co. v. Image Technical Services, Inc. to these cases misunderstands that case and improperly shields monopolists from competitive pressures, including in Epic’s recent case against Apple.

The AI Trends That Will Define Society and Political Economy in 2024

Three artificial intelligence experts at the University of Chicago disclose the trends and issues regarding AI that they'll be watching for in 2024.

The 2023 Merger Guidelines Strengthen Enforcement by Finding Common Ground

Jonathan B. Baker provides his reactions to the final 2023 Merger Guidelines, including why they strengthen enforcement and where the antitrust enforcement agencies can further clarify their merger analysis.

The Digital Markets Act Is More Intricate Than Regulators and Detractors Give It Credit For

The European Union’s Digital Markets Act (DMA), designed to regulate Big Tech, supplements current antitrust laws that pursue case-by-case analyses of business conduct with general rules to block potentially anticompetitive behaviors. Detractors criticize the DMA for its lack of nuance. Supporters applaud its general principles as a necessary bulwark against Big Tech’s market powers, which current case-by-case analysis has been unable to rein in. However, neither side appreciates the true complexity of the DMA or how its principles interact to prevent anticompetitive behavior, writes Alba Ribera Martínez.

The Trends and Cases That Will Define US Antitrust in 2024

All eyes are on labor this year. Hiba Hafiz, Boston College: 2023 was a big year for labor antitrust. We saw the rise and fall of...

The Trends and Cases That Will Define European Antitrust in 2024

Four experts on antitrust in Europe discuss the trends and cases they're watching in 2024.

Assessing the Advances Made on Vertical Mergers in the Final Merger Guidelines

Steven C. Salop evaluates the final version of the 2023 Merger Guidelines on vertical merger analysis and certain rebuttal arguments. He finds that the final Guidelines successfully incorporate developments in the economic scholarship and update antitrust enforcement with the tools to analyze non-horizontal mergers in an increasingly digital economy.

DOJ and FTC Chief Economists Explain the Changes to the 2023 Merger Guidelines

The Department of Justice Antitrust Division and Federal Trade Commission released their completed version of the new 2023 Merger Guidelines. Susan Athey, Chief Economist for the DOJ Antitrust Division, and Aviv Nevo, Director of the FTC’s Bureau of Economics, explain how the revised document addresses the comments they received on the Draft Merger Guidelines that were expressed in ProMarket and elsewhere.

How the Illumina/Grail Opinion Updates Case Law on Vertical Mergers and “Litigating the Fix”

Steven C. Salop analyzes the Fifth Circuit Court’s opinion accepting the Federal Trade Commission’s suit to block Illumina’s acquisition of Grail. The ruling sheds light on how courts may approach vertical merger analysis and “litigating the fix” in the future, and what this may mean for the Merger Guidelines’ approach to vertical mergers.

The New and Improved 2023 Merger Guidelines

The final version of the Agencies’ Merger Guidelines are a thoughtful improvement over the draft version, writes Fiona Scott Morton. Both the economic and legal analysis in the final version promise to more effectively prevent harmful mergers and bring U.S. antitrust into the modern age.

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