The Role of the State

Despite fundamental changes in the real economy, and strides in the regulation of privacy, data, and digital markets, antitrust practice and discourse in Europe are still conducted in “safe spaces” where the antitrust community resists change and remains attached to neoliberal approaches and efficiency goals. But the Trump Administration will not just signify a wholesale return to pre-NeoBrandeisian times (as many in Europe hope): indeed Europeans hiding in their “safe spaces” may well be surprised, writes Cristina Caffarra.

In new research, William Christopher Gerken, Steven Irlbeck, Marcus Painter and Guangli Zhang track the movements of Securities and Exchange Commission-associated smartphone devices to shed light on the SEC’s investigatory process and understand how office visits from its staff alter firm behavior and outcomes.

This research note employs the quantitative approach developed by Francesco Trebbi, Miao Ben Zhang, and Michael Simkovic (2023) to provide a descriptive overview of the main differences in costs of regulatory compliance across U.S. states for the year 2014 and over the period 2002-2014. These descriptive stylized facts can be useful in grounding extant discussion on regulatory compliance burden across different U.S. regions and over time and presents both unconditional results and results controlling for state industry composition.

Ecosystem analysis has been a popular but ill-defined concept in antitrust to identify digital products and services that operate across multiple markets. In new research, Konstantinos Stylianou and Bruno Carballa-Smichowski provide a schematic for defining ecosystems to help courts and regulators pursue more sophisticated investigations and interventions into increasingly complicated markets.

New research from SP Kothari, Hamid Mehran and Zirui Song argues that share buybacks - rather than traditional dividends - may actually be safer for financial stability since they offer banks more flexibility and don't signal distress when reduced. The authors show that while dividends create pressure for consistent payments and industry-wide ripple effects when cut, buybacks allow banks to adjust their capital distribution to the present circumstances.

In Europe, many regulatory authorities are debating whether to loosen regulations on tech companies so that they can catch up with their counterparts in the United States and close Europe’s innovation gap. Based on her recent article, Anu Bradford shows that this choice is a false one. She argues that rather than stringent regulation, the gap in tech innovation between the U.S. and EU can be explained by differences in their scaling opportunities, capital markets, bankruptcy laws, immigration policy, and flexibility of their labor markets.

After several decades of obscurity, antitrust reemerged as a fashionable force in the second and third decades of the 21st century. This trend coincided with growing societal distrust of expertise. Barak Orbach explores assertions that corruption and greed drive support for lax antitrust enforcement policies, and that trustbusting zeal is a marker of intellectual integrity. He argues that intellectual integrity and sound public policy require the moderate, technocratic approaches that society heavily discounts.

Recent negative news on the production of electric vehicles in the United States call into question the government’s industrial policy boosting Detroit’s efforts to go green. Susan Helper writes that not only have there been significant benefits from President Joe Biden’s industrial policies, but promoting the production and adoption of electric vehicles remains essential to achieving national decarbonization targets and increasing resilience, innovation, and national security

Some American policymakers have sought to adopt and adapt aspects and principles of the European Union’s Digital Markets Act in an effort to regulate Big Tech giants. In new research, Giovanna Massarotto writes that the principle ideologies driving American and European antitrust, and the broader political economy, renders the DMA and its principles too foreign for American adoption.

Andrew Gavil examines the Biden Administration's antitrust policy, placing it in the broader historical context of evolving competition law. He questions the fit of Kuhn’s concept of paradigm shift for antitrust policy and argues instead that Biden's initiatives reflect the unique demands of the digital economy and the true nature of antitrust, which is ever evolving.