The CWS has been the subject of much discussion lately, largely driven by a seeming uptick in criticism of the standard. This criticism falls generally into two camps. On the one hand, the CWS is understood to be the broadly correct, if imperfect, touchstone for antitrust enforcement. Proponents...

In this comment, we primarily address the fifth topic raised by the Commission (“Are there policy recommendations that would facilitate competition in markets involving data or personal or commercial information that the FTC should consider?”).In short, we argue that the advent of...

The FTC oversees nearly every company in America. It polices competition by enforcing the antitrust laws. It tries to protect consumers by punishing deception and practices it deems “unfair.” It's the general enforcer of corporate promises made in privacy policies and codes of conduct...

Although the FTC is well-staffed with highly skilled economists, its approach to data security is disappointingly light on economic analysis. The unfortunate result of this lacuna is an approach to these complex issues lacking in analytical rigor and the humility borne of analysis grounded in...

In this comment, we primarily address the first question asked by the Commission (“The state of antitrust and consumer protection law and enforcement, and their development, since the Pitofsky hearings”). However, our comments also speak to several other questions. We do so in part through...

These comments were submitted to the FTC as part of its hearings on “Competition and Consumer Protection in the 21st Century.” In these comments, we analyze three overarching topics relevant for the regulation of data: (1) The role of privacy as an element of non-price competition; (2) The...

Since the original Pitofsky hearings, much has fundamentally changed in the way the firms do businesses. Yet, despite these rapid and fundamental shifts in technology and behavior, we still face many of the same policy challenges as existed twenty years ago (and more). Innovation always yields...

Modern legal scholars frequently and increasingly base their analyses on the assumption, grounded largely in the extensive experimental literature, that individuals are subject to a number of systematic behavioral biases. Within the legal literature, behavioral economic analysis has been relied...