Using ex-ante regulation to replace inefficient and ineffective ex-post litigation based antitrust is a familiar refrain for those interested in regulating large technology firms. But the narrative that antitrust is either solely or predominantly based on ex-post litigation is a false narrative,...

The first part of this chapter puts forward a brief background on technology. The second part examines the use of 5G in FCC and DOJ merger review. The third part analyzes the potential increased efficiency and decentralization of the traditional MNO and how this might impact future competition...

This chapter describes the emergence of the EFD and reviews its development against the background of major trends in the continuing evolution of federal antitrust law. It then analyzes recent Supreme Court cases that have questioned and thereby undermined EFD, even though lower courts claim to...

The use of NCAs is currently regulated under state law. These laws embody diverse approaches to the regulation of NCAs which generally limit enforcement of NCAs to those with reasonable and narrowly tailored terms. State law also incorporates various approaches to mitigating the negative effects...

Digital platforms have attracted unparalleled recent interest from antitrust and competition authorities. Many digital platforms are free to consumers and are supported by advertising. Given this, the question of how advertisers approach and allocate advertising matters for understanding the...

In this chapter, we address a number of critical questions. Is there a problem with large technology firms, or platforms, purchasing nascent competitors and suppressing competition before they can mature into vibrant competitors? Further, if there is a problem, are the current antitrust laws and...

In Section I of this paper, I examine the origins or seeds of precautionary antitrust by revisiting enforcement by European administrative competition agencies in digital markets. In Section II, I explain how this ideology was embraced, advocated, and advanced in several “tech reports”...

Antitrust enforcement in digital and high-tech markets is not disconnected from traditional antitrust theory or practice. Yet, unique features of firms operating in digital and other high-tech markets can necessitate modification of doctrine. For example, modern antitrust enforcement in digital...

Digital goods generate a large amount of consumer welfare but these welfare gains are not properly measured in existing macroeconomic measures. This chapter summarizes existing research on measuring consumer welfare from digital goods. Recent research suggests that massive online choice...

This chapter explores the interrelationship between these two basic provisions, both as a matter of general theory and through their development in case law over the past 130 years—which spans multiple eras of technological innovation. It is easy to find cases where patent law appears to move...