Commentary

Douglas Ross writes that for most of its history, the Federal Trade Commission did not rely on the Chevron doctrine to enforce its mandate to prohibit “unfair methods of competition” and “unfair or deceptive acts or practices.” Thus, Loper Bright will not significantly alter the FTC’s historical role in regulating competition. However, the Chevron doctrine could have been a useful ally to the current FTC, which under Chair Lina Khan has pursued more ambitious rulemaking, such as to ban noncompete clauses. Without the Chevron doctrine, the FTC will face a more arduous path to defending its new rules as they are challenged in the courts.

On September 10, the highest judicial authority in the EU, the Court of Justice, will rule on Google Shopping, closing a case opened 15 years ago and instrumental in changing the narrative on Big Tech. Christian Bergqvist summarizes the history of Google Shopping and discusses its possible outcomes.

Sharon Block writes that after Loper Bright, there remain many questions about how the courts will treat the discretionary rulemaking authority of the National Labor Relations Board to protect workers’ right to choose to join unions and act collectively. While precedent suggests the NLRB could retain most of its power to issue and enforce rules, the recent history of a Supreme Court that has shown little favor toward workers or government intervention suggests a narrower reading of the NLRB’s authority may be coming.

John B. Kirkwood explains six ways in which Big Tech’s alliances with AI startups could harm competition, making clear that the antitrust agencies have good reasonto monitor and investigate them.

Blaine Saito writes that the end to the Chevron deference doctrine could lead to a return to the National Muffler standard that grants judicial deference to long-standing agency rules and rules promulgated contemporaneously with Congressional statute. This may mean that the courts overturn newer taxation rules, though the Internal Revenue Code provides explicit discretionary rulemaking power to the Treasury and Internal Revenue Service, which should further limit Loper Bright’s impact on the agency.

Vivek Ghosal reviews the data, economics, and market conditions of the growing artificial intelligence market and finds that it is quite dynamic in terms of evolving partnerships and firms, and is relatively competitive. Thus, Big Tech investments into AI startups do not warrant investigation by the government at this time.

Artificial Intelligence (AI) is poised to permeate across different industry sectors, offering unprecedented opportunities alongside significant risks. Effective governance necessitates coordinated cross-border efforts to build institutional expertise, dispel misconceptions, foster innovation, and align global safety priorities. Advocating structured dialogue and a bottom-up approach, Oscar Borgogno and Alessandra Perrazzelli present a proposal which aims to avoid institutional redundancy and legal unpredictability for individuals and firms.

Erik Hovenkamp reviews the findings of Judge Amit Mehta’s ruling against Google for monopolizing the internet search market and discusses what the case will mean for the other ongoing Big Tech cases and the future of antitrust.

Utsav Gandhi discusses the findings of the May 2024 Google SEO leak, which gave analysts a novel, albeit speculative, look into how Google might choose to promote and demote content. The findings have possible implications for businesses and news organizations struggling to compete for views and suggest that transparency could become an increasing factor in the future search market as new, artificial intelligence-powered competitors enter the market.

A United States federal court has found Google in breach of the Sherman Act by pursuing default status for Google Search and Google Chrome. However, Google's motives and the precise ways in which Google Search’s default status serves its interests remain poorly understood by the public and the antitrust community. They pertain to preventing users from migrating to competitors’ offerings in general and, in particular, to capturing user migration to next-generation platforms to access and search the internet. Understanding this motive will be essential in the calibration of forthcoming remedies and provide lessons for future cases against Google and other tech companies also confronted with user migration.