By Eric A. Posner
 
Covenants not to compete, which prevent workers from quitting their employer and moving to a competing employer, have ambiguous effects on welfare, according to economic theory. Noncompetes may enable employers to invest in assets by protecting those assets from expropriation by workers or competitors, but noncompetes also interfere with labor market competition. Recent research, however, suggests that the anticompetitive effects of noncompetes are greater than any benefits, and thus that the existing common law regime for regulating noncompetes is too weak. A plausible step forward is to strengthen the antitrust law on noncompetes. A better antitrust law would shift the burden, allowing employers to use noncompetes only when they can prove that their use of noncompetes results in higher wages in the affected labor market.

The Anticompetitive Effects of Covenants not to Compete

By Max M. Miller
 
America's farmers were instrumental in the passage of the nation's first antitrust laws. The weakening of the United States' antitrust enforcement, however, has contributed to the decline of the American farmer, who is squeezed by oligopolies on the input and output side of the farm. This has led to a lower share of the food dollar, diminished profits, and alarming rates of farm failures. The goals of the farmers pushing for the first antitrust laws were not simply to lower prices for consumers, but to balance power in agricultural markets to provide for their economic liberty and security. Antitrust practitioners should be listening to the challenges faced by farmers today and push for reforms to return competition to agricultural markets.

America Needs Farmers and Farmers Need Better Antitrust Law

By Gregory Day
 
Observers contend that concentrated power in digital markets threatens free speech. At the root of this anxiety is that private companies have accrued unprecedented control over the flow of information, turning free speech into an emerging antitrust issue. Support for increasing antitrust enforcement in the marketplace of ideas has notably come from politicians, litigants, popular commentators, and even the Department of Justice. The obstacle is that courts have so far been hostile to antitrust lawsuits intended to promote free speech. This contribution explores whether antitrust should foster free speech given the emerging challenges of digital markets. It finds that the economic value of ideas and speech in the information age requires a reexamination of antitrust’s consumer welfare standard, though the enterprise should resist promoting political, social, and other forms of non-commercial expression.

Speech, Innovation, and Competition

By Alexander Krzepicki, Joshua D. Wright & John M. Yun
 
In current antitrust policy debates, it is almost a foregone conclusion that digital platforms’ collection and use of “big data” is a barrier to entry. In this article, we argue that big data should properly be considered a two-stage process. The reason why this classification matters is because it allows us to link big data to concepts that antitrust is already familiar with: economies of scale, learning by doing, and research & development. By linking big data with the familiar, we hope to avoid a common tendency in antitrust to condemn the strange.

The Impulse to Condemn the Strange: Assessing Big Data in Antitrust

By Paul Lugard
 
It is now undisputed that 5G and IoT will revolutionize many industries, from energy to healthcare, manufacturing, and mobility. The dissemination of 5G cellular technology, connecting devices to the Internet on the basis of technical interoperability standards, will generate very significant consumer benefits. However, as 5G technology is designed for many different uses and parties situated at multiple and different levels in the production chain may request licenses from SEP holders, the question arises whether antitrust law sets any limits to SEP holders’ discretion to offer FRAND licenses to interested parties. Not surprisingly, proponents of indiscriminate dissemination of 5G technology sometimes claim that there is an antitrust duty to offer licenses to all such interested parties. This contribution briefly discusses a number of necessary conditions that must be met to conclude that such an affirmative duty exists. Along the way it seeks to dispel a few popular antitrust myths in the area of SEP licensing.

5G, FRAND Licensing, and EU Competition Law: Analytical Rigor and Persistent Myths

By Matthias Schneider
 
Licensing standard essential patents (“SEPs”) for the Internet of Things (“IoT”) will create novel challenges for parties involved in both standardization and the licensing process. This paper explains how the IoT will affect the creation and implementation of standardized technology and then examines four emerging questions about SEP licensing for the IoT that need to be answered: (i) How to create transparency related to standardized technology and IP license offers? (ii) Who may obtain a license in the IoT market? (iii) Will patent pools help streamline licensing for the IoT? and (iv) How to reduce the possibility of litigation?

SEP Licensing for the Internet of Things – Challenges for Patent Owners and Implementers

By Michael D. Hausfeld, Sarah LaFreniere & Eduardo A. Carlo
 
For too long now, the NCAA has hidden behind its veil of “amateurism” to justify depriving college athletes of reasonable compensation for use of their name, image, and likeness (“NIL”), much needed comprehensive academic opportunities, and much more. While significant incremental improvements have been achieved through litigation, legislatures have finally realized that they have a role to play in creating an equitable system of intercollegiate athletics. Ever since California passed the Fair Pay to Play Act in 2019, there has been exponential increase in the introduction of reform bills targeting the injustices of college athlete compensation under the NCAA’s regime. In this article, the authors address a proposed formula for federal legislation aimed to achieve a more equitable system in intercollegiate athletics.

The Equitable Future of Intercollegiate Athletics

By John E. Kwoka
 
Ten years ago the U.S. antitrust agencies began using conduct remedies more frequently and more expansively than ever before. Research and experience, however, highlighted the limitations of such remedies, and so more recently the agencies have restated their determination to avoid the use of conduct remedies wherever possible and to strengthen remedies policy generally. Despite those statements, the agencies have in fact continued to rely on conduct remedies and indeed further expanded their use in ever more problematic ways. Three examples discussed in this article are the recent amendment to the original Ticketmaster-Live Nation settlement, the merger of Staples and Essendant, and the Sprint/T-Mobile merger. The conclusion of this review is that little appears to have been learned about the weaknesses of conduct remedies over the past decade.

Conduct Remedies, With 2020 Hindsight: Have We Learned Anything in the Last Decade?

By Russell Pittman
 
There is a substantial literature examining the experience in both the United States and the European Union with the imposition by enforcement agencies of remedies as a condition for a merger to proceed without challenge. The broad goals of the agencies have arguably remained consistent over the years, and a number of more specific “lessons” of the past seem to have become broadly accepted, including both a general preference for structural over behavioral remedies but also a willingness to impose behavioral remedies in certain, limited situations, either in support of structural remedies or on their own. This paper examines some arguably underappreciated complications arising from the imposition of behavioral remedies, including the difficulty of enforcing non-discrimination provisions, the danger of perverse incentives provided by such provisions, and the counter-argument – common in the debates regarding infrastructure access pricing – that in some circumstances discrimination itself may be pro- rather than anti-competitive.

CompPolicyInt