The Role of the State

Dylan Gyauch-Lewis reviews the Supreme Court’s recent spate of rulings redefining administrative law and how they threaten the National Labor Relations Board’s authority.

James Tierney finds that Loper Bright, the latest ruling in a rash of Supreme Court cases undermining the Securities and Exchange Commission’s authority, will limit the agency’s intervention in the market and produce uncertainty for businesses as they guess which rules will survive the judicial review.

Steve Salop explores the basis for warranting strong remedies in the Google Search case and the set of remedies Judge Amit Mehta might consider for restoring competition in the search market by jump-starting the competitive process.

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.

Stacey Dogan writes that antitrust regulators in the United States and Europe are right to investigate Big Tech-AI partnerships. Even if AI markets remain competitive today, history and economics show that the Big Tech companies will push to monopolize segments of the AI market if given the opportunity. The investigations serve as a deterrent against anticompetitive behavior and give the regulators access to the knowledge and information that will be necessary to detect anticompetitive patterns as the AI market matures.

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.