Now showing items 1-20 of 11966

    • An Empirical Investigation of Arbitrator Race and Gender in U.S. Arbitration

      Chandrasekher, Andrea Cann (Yale Journal of Law and Feminism, 2024)
      For decades, the United States system of arbitration has been subject to nearly constant public criticism. Calling arbitration a rigged judicial system, consumer and employee rights groups have voiced opposition to the practice of “forced arbitration” whereby millions of Americans are contractually required to resolve disputes in arbitration rather than in litigation. On top of the concerns over the unfairness of forced arbitration itself, recent attention has been drawn to the lack of racial and gender diversity within the arbitrator profession. When women and racially marginalized plaintiffs are forced to arbitrate their employment discrimination or consumer-based claims in the arbitral forum, that they may have no meaningful access to arbitrators that look like them seems additionally problematic. Scholars in the field have argued back and forth about the root of the diversity problem. Is it a labor supply problem? In other words, are parties to arbitration open to hiring marginalized arbitrators but there are just not enough to choose from? Or is it a labor demand problem? In other words, when women and arbitrators of color are available, are they chosen at rates consistent with their white male counterparts? Or, are both supply and demand problems at work? Because much of the scholarly diversity conversation has been based on anecdotal information and survey data which don’t cover the full population of U.S. arbitrators, these basic questions are still unanswered. This paper contributes to the literature by using an originally-collected data set of arbitrator race, ethnicity and gender from the two largest arbitration firms in the U.S., Judicial Arbitration and Mediation Services (“JAMS”) and the American Arbitration Association (“AAA”). The data were collected using public data sources and cutting-edge machine learning techniques. This is the first-ever scholarly effort to empirically estimate the race and ethnicity of arbitrators for both the JAMS and AAA populations. The analysis presents estimates of the demographic profile of the supply of U.S. arbitrators and the demographic profile of the subset of arbitrators that are actually selected to arbitrate—with a special focus on the extent to which under-selection is happening. The study has four main findings. First, along the supply dimension, women and people of color are underrepresented amongst JAMS arbitrators, both relative to the U.S. population and relative to the population of American lawyers and judges. The extent of the underrepresentation for both groups is significant, though it is more severe for arbitrators of color than for female arbitrators. For AAA arbitrators, I find an even greater degree of underrepresentation for Black arbitrators. Second, along the demand dimension, I find different results for JAMS and AAA. For JAMS, I find that, conditional on being selected to arbitrate at least once in the sample period, Asian and Black arbitrators receive fewer cases than their proportional share, and female arbitrators receive slightly more cases than their proportional share. Moreover, arbitrators that were formerly judges receive more cases than their proportional share. For AAA, the selection analysis is hampered by limited data availability. However, the data that I do have suggest that diverse neutrals are selected for cases at a rate that is at or above their proportional share. Third, given the first two results, my data suggest that diversity issues exist both along the labor supply dimension and the labor demand dimension within U.S. arbitration. Fourth and finally, I find that future empirical diversity work in arbitration will be severely hindered unless more and better data are available to researchers. The study concludes by offering concrete and specific recommendations for how and why better data should be collected and made available to the public.
    • Sex/Gender Segregation: A Human Rights Violation, Not a Protection

      Tueller, Jessica (Yale Journal of Law and Feminism, 2024)
      This Article argues that human rights law should be interpreted to prohibit sex/gender segregation in all contexts, including education, employment, bathrooms, prisons, and sports, because of the gendered harms it produces. Prohibiting sex/gender segregation would constitute a departure from the current approach of international and regional human rights mechanisms, which has been to discourage sex/gender segregation in education and employment, require it in bathrooms and prisons, and devote little attention to it in other contexts, such as sports. This departure is needed because sex/gender segregation, no matter the context, perpetuates and reinforces gender stereotypes to the detriment of everyone, especially women and LGBTI persons. Since international law requires States to modify harmful gender stereotypes and eliminate wrongful gender stereotyping, States have an international obligation to eliminate sex/gender segregation regardless of the context in which it occurs. Common arguments in favor of sex/gender segregation, arising out of protection, choice, and culture, do not prevent human rights mechanisms from finding that international law prohibits sex/gender segregation, but these concerns should be taken into consideration when proceeding toward the elimination of sex/gender segregation. Implementation of this prohibition on sex/gender segregation will need to be gradual and context-specific.
    • Removing the Bias of Criminal Convictions from Family Law

      Stoever, Jane K. (Yale Journal of Law and Feminism, 2024)
      What happens when a legal system reduces a person to a record of arrests and prosecutions and prioritizes that information in family court? And what are the implications when this legal system is rooted in racism; disproportionately arrests, charges, and sentences people of color; and increasingly criminalizes domestic violence survivors? The Black Lives Matter movement brought attention to the need to expose racial injustice in areas that scholars often overlook. This Article is the first legal scholarship to examine judicial reliance on convictions in family law and domestic violence proceedings. Judges are currently provided with entire criminal histories, and statutes explicitly allow for or require family court judges to consider past criminal convictions and the probation and parole status of litigants seeking to secure custody or visitation of their children, form a family through adoption, or receive protection from domestic violence, as revealed by the research and fifty-state survey conducted for this Article. Given the stark racial disparities that pervade the criminal legal system, the convergence of heuristics and bias profoundly impacts litigants' lives, relationships, families, and communities. Judges' implicit biases coupled with structural hurdles, such as the high-volume dockets of criminal and family courts, further affect adjudication and pressure parties to accept plea offers or settlements. This Article also addresses survivors' advocates' potential objections to decreasing judicial reliance on criminal convictions and the imperative to avoid minimizing harms experienced by people of color. The Article concludes by offering a statutory framework to reform the role of criminal convictions in domestic violence and family court proceedings. The recommended statutory reforms are positioned alongside emerging expungement and vacatur laws. Without the remedy recommended in this Article, racial bias and the stigma of criminality will continue infecting family law cases, protection from domestic abuse, and caretaking relationships.
    • "Demons and Imps": Misinformation and Religious Pseudoscience in State Anti-Transgender Laws

      Alstott, Anne; Olgun, Melisa; Robinson, Henry; McNamara, Meredithe (Yale Journal of Law and Feminism, 2024)
      In a hearing before the Florida House of Representatives, Rep. Webster Barnaby addressed transgender witnesses as "demons and imps who come and parade before us and pretend that you are part of this world." Barnaby's remarkably candid statement is an outlier because it reveals that religion-rather than sound science-underlies the new wave of antitransgender laws that have been adopted by at least 20 states since 2021, with the vast majority enacted in 2023. In legislatures, courts, and agency hearings, proponents of anti-trans measures - in contrast to Barnaby - frame their arguments in scientific terms, contending that biology and medicine dictate exceptionalist treatment of trans gender people. In this Article, we make three contributions. First, we debunk these purported scientific claims, showing (with full citations to the scientific literature) that the core arguments for anti-trans laws rest on misinformation ( defined as false information that could, with due diligence, be determined to be false) and religious pseudoscience ( defined as statements that use scientific vocabulary but rest on religious tenets and defy sound science). We closely examine key state legal documents, including legislation, attorney general opinions, and administrative agency documents. Our analysis shows that the core and repeated "scientific" arguments in these documents defy sound science and rest, instead, on religious principles about the binary nature of sex and gender and the corruption of secular society. Second, we show that the "playbook" of misinformation and pseudoscience that has long fueled anti-LGBTQIA+ and anti-abortion laws is now being deployed by conservative religious organizations to promote and defend anti-trans laws. Not all religious organizations oppose transgender and queer rights, and not all opposition to transgender rights is based in religion. Still, close-knit conservative Catholic and evangelical Protestant groups have been on the front lines of efforts to promote and defend anti-trans laws. Leaked documents and emails show how medical and legal groups united by religion collaborated to create purported "scientific" documents and identify purported "experts" to push anti-trans measures. Third, we address the limitations of litigation in com batting anti-trans laws. Transgender plaintiffs challenging healthcare bans won decisive victories at the trial level, with federal and state courts in six jurisdictions forcefully rejecting the misinformation and purported "experts" put forward by the states. In the summer of 2023, however, subsequent decisions in federal appellate courts and state supreme courts overturned these decisions, with the higher courts giving credence to states' pseudoscientific claims and sharply narrowing constitutional protections for transgender youth and their families. These decisions explicitly connected transgender rights to abortion rights and adopted the Dobbs approach of limiting constitutional protections based on nineteenth-century social conditions. Litigation remains ongoing, and recent court decisions have addressed only preliminary injunctions based on limited factual records, so the plaintiffs may yet prevail in some cases. Even in the best case, however, litigation takes years-with harm accruing to transgender people in the meantime- and is vulnerable to gaming by states that are doubling down, enacting new anti-trans laws even as existing ones are struck down. We conclude that litigation is a welcome but limited remedy and that additional legal and policy measures are worth exploring. These include the enactment of express protections for LGBTQIA+ people by Congress and federal agencies. More speculatively, we consider procedural protections that could be adopted at the state level as well as possibilities for private action by researchers and nonprofit organizations. Although there are no easy answers, this Article outlines a range of possible approaches, some of which would make it more difficult for states to target queer people and others of which would tackle the broader problem of misinformation and religious pseudoscience enacted into law. We also explore potential challenges under the Establishment Clause, which could prompt courts, legislatures, executives, and popular movements to reject pretextual secular claims when-as here-the underlying motivation and asserted "facts" are religious in nature and amount to the state adoption of religious doctrine.
    • Contractual Landmines

      Scott, Robert E.; Choi, Stephen J.; Gulati, Mitu (Yale Journal on Regulation, 2024)
      Conventional wisdom is that the standardized boilerplate terms used in large commercial markets survive unchanged because they are an optimal solution to the contracting problems facing parties in these markets. As Smith and Warner explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals numerous instances of harmful landmines—some are deliberate changes to standard language that increase a creditor’s nonpayment risk, others are blatant drafting errors, and yet others are inapt terms that have been carelessly imported from corporate transactions. Moreover, these landmines differ from each other in important respects: deliberate changes to the standard form reflect strategic lawyering on behalf of sovereign clients, while errors that only benefit subsequent activists reflect haste in adapting precedents to new transactions. Using both quantitative data and interviews with market participants, we find that the conventional view fails to recognize the unique and distorting role that lawyers play in the drafting of standard form contracts. Systematic asymmetries in the market for the lawyers who negotiate and draft these contracts explain why real-world contracts depart from the efficient contract paradigm.
    • Discretionary Investing by ‘Passive’ S&P 500 Funds

      Molk, Peter; Robertson, Adriana Z. (Yale Journal on Regulation, 2024)
      So-called passive index funds—investment funds that are designed to track a pre-specified underlying index—have become a dominant force in the investing landscape, collectively controlling over $12 trillion in assets. It is widely assumed that these funds are obligated to follow their underlying index, and that fund managers cannot, or do not, select portfolios that deviate from the index’s holdings. As a result, various critics have attacked these funds, raising concerns about their corporate governance incentives and their influence on market efficiency. We show this assumption is overly simplistic. To do so, we examine funds that track the most prominent index, the S&P 500. S&P 500 index funds do not typically commit to holding even a representative sample of the underlying index, nor do they commit to replicating the returns of that index. Managers have the legal flexibility to depart substantially from the underlying index’s holdings. We also show that these departures are commonplace: S&P 500 index funds routinely depart from the underlying index by meaningful amounts. While these departures are largest among smaller funds, they are also present among megafunds: even among the largest S&P 500 funds, holdings differed from the index by a total of between 1.7% and 7.5% in the fourth quarter of 2022. Across all S&P 500 funds, these deviations amounted to almost $61.5 billion in discretionary investment decisions. Moreover, at least within observed ranges, we find no meaningful relationship between these deviations and investment flows. In sum, S&P 500 index funds have substantial investment discretion, which they exercise to an extent not previously recognized. Our findings complicate the narrative around index funds and weaken many of the criticisms levied against them. At the same time, to the extent that investors—and particularly retail investors—fail to recognize this discretion, our findings suggest they may not be getting what they expect.
    • Credit Markets and the Visible Hand: The Discount Window and the Macroeconomy

      Conti-Brown, Peter; Skeel, David (Yale Journal on Regulation, 2024)
      In times of crisis such as the 2008 financial crisis and the 2020 COVID-19 pandemic central banks throughout the world engage in interventions with lasting effects on financial markets and the macroeconomy, for better and worse. The negative political consequences of these interventions—fears of politicizing central banking and inflationary concerns about dramatic interventions among them—can dampen the enthusiasm for such interventions early in the face of crisis. This dynamic creates a dilemma for the US central bank, the Federal Reserve, causing it to eschew interventions beyond monetary policy until the crisis has already crashed, at which point the Fed moves into every aspect of policy throughout the economy. This Article highlights the inadequacy of this dynamic. Sole reliance on monetary policy is insufficient in the face of growing crisis, while the Fed's vast emergency lending facilities face ever stiffer political, inflationary, and equity concerns. The Article advocates instead for a new approach to macroeconomic stability, not just through monetary policy or emergency interventions, but through judicious use of the sleeping giant of Fed policy, the bank-intermediated discount window. Focusing on the problematic credit market for debtors-in-possession in the midst of bankruptcy, the Article suggests a reformed system that safeguards the Fed, supports small and medium-sized enterprises, and stabilizes the macroeconomy without exposing the system to the pockets of instability that the Fed’s overreliance on dramatic intervention can do.
    • Mass Shootings and Mass Torts: New Directions in Gun Manufacturer Liability

      Hallas, Laura (Yale Journal on Regulation, 2024)
      Mass shootings are a particularly gutting form of American gun violence. The statistics are staggering to the point of numbing, with the issue’s intensity and timeliness enforced day after day, round after round. Gun manufacturers occupy a vital role in the chain of events ending with mass shooting headlines, yet they face little liability for their involvement because of a 2005 protective federal statute. This Note argues that there may be opportunity for change. Specifically, this Note offers evidence that once strong statutory protections may be weakening and presents strategies for creating previously unimaginable mass tort claims against gun manufacturers.
    • Grid Reliability in the Electric Era

      Macey, Joshua C.; Welton, Shelley; Wiseman, Hannah (Yale Journal on Regulation, 2024)
      The United States has delegated the responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Although NERC is a crucial example of industry-led governance—and regulates in an area that is central to our economy and basic human survival—this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To decarbonize its economy, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run largely on clean but intermittent renewable resources. These new resources demand new approaches to electric grid reliability—approaches that NERC is failing to adequately embrace. This Article traces NERC’s history, situates NERC in ongoing debates about climate change and grid reliability, and assesses the viability of reliability self-regulation in the electric era. A self-regulatory model for maintaining U.S. electric-grid reliability sufficed in prior decades, when regulated monopolies managed nearly every segment of electricity production. But the criteria that NERC once used to justify self-regulation— ’ expertise, clear accountability metrics, and public-private alignment of interests—no longer hold. The climate crisis creates a need for expertise beyond NERC’s domain, while the introduction of competition in the electricity sector blurs lines of accountability for reliability failures. NERC’s structure also perpetuates an incumbency bias at odds with public goals for the energy transition. These shifting conditions have caused to fail to keep pace with the reliability challenges of the electric era. Worse still, outdated NERC standards help entrench fossil-fuel interests by justifying electricity-market rules poorly suited to accommodate renewable resources. We therefore suggest a suite of reforms that would increase direct government oversight and accountability in electricity-reliability regulation.
    • The Nondelegation Doctrine and the Structure of the Executive

      Froomkin, David B. (Yale Journal on Regulation, 2024)
      In a series of recent opinions, the Supreme Court has threatened to transform the nondelegation doctrine into a device for imposing sweeping limits on congressional authority to empower the regulatory state. But, as a matter of history and logic, the nondelegation doctrine has a quite different purpose. This Article argues that the nondelegation doctrine plays an underappreciated role in constitutional structure: encouraging the segmentation of executive power. The nondelegation doctrine vindicates the Article I Vesting Clause by preventing Congress from being divested of its legislative power. Its purpose is to reinforce Congress’s legislative supremacy in the realm of ordinary law, not to impede Congress’s ability to achieve legislative objectives by delegating regulatory authority to administrative agencies. The nondelegation doctrine accomplishes its distinctly structural purpose by constraining the delegation of broad powers to the President directly, a constraint that encourages legislative delegation of regulatory authority to administrative agencies. The Article explains as a matter of theory why broad delegations to the President, unlike the delegation of substantial regulatory authority to administrative agencies, jeopardize legislative supremacy and hence pose heightened nondelegation concerns, and it finds strong support for this distinction in the history of nondelegation decisions. It concludes that the diffuse departmental structure of the modern administrative state is a testament to the great success of the nondelegation doctrine, not evidence of its underenforcement. Indeed, the contemporary push to reinvent the nondelegation doctrine in an indiscriminate way would turn it into something closer to its opposite, a cudgel against legislative supremacy rather than its guardian. †
    • The Financial Inclusion Trilemma

      Levitin, Adam J. (Yale Journal on Regulation, 2024)
      The challenge of financial inclusion is among the most intractable policy problems in banking. Despite living in the world’s wealthiest economy, many Americans are shut out of the financial system. Five percent of American households lack a bank account, and an additional thirteen percent rely on expensive and sometimes predatory fringe financial services, such as check cashers or payday lenders. Financial inclusion presents a policy trilemma. It is possible to simultaneously achieve only two of three goals: widespread availability of services to low-income consumers, fair terms of service, and profitability of service. Thus it is possible to provide fair and profitable services, but only to a small, cherry-picked population of low-income consumers. Conversely, it is possible to provide profitable service to a large population, but only on exploitative terms. Or it is possible to provide fair services to a large population, but not at a profit. The financial inclusion trilemma is not a market failure. Instead, it is the result of the market working. The market result, however, does not accord with policy preferences. Rather than addressing that tension, American financial inclusion policy still leads with market-based solutions, soft government nudges, and the hope that technology will transform the economics of small-balance deposit accounts and small-dollar loans. It is time to recognize the policy failure in financial inclusion and consider to a menu of stronger regulatory interventions: hard service mandates, taxpayer subsidies, and public provision of financial services. In particular, this Article argues for following the approach taken in Canada, the European Union, and the United Kingdom. This approach—the adoption of a mandate for the provision of free or low-cost basic banking services to all qualified applicants—is the simplest solution to the problem of the unbanked. Addressing small-dollar credit, however, remains an intractable problem, largely beyond the scope of financial regulation because the challenge many low-income consumers face is solvency, not liquidity.
    • Work Disguised as Leisure, Leisure Disguised as Work: The Roots and Consequences of the Bifurcated Economy

      Hull, Samuel (Yale Journal of Law & the Humanities, 2023)
      This Article argues that the framework laid out in the post-Marxist scholar André Gorz’s 1989 book on the alienation inherent in a system focused on efficiency, Critique of Economic Reason, provides a valuable approach for understanding the alienation that inheres in the unequal modern economy, as well as the roots of the legal-political structure that undergirds that inequality. The Article first describes Gorz’s understanding of how the rise of quantification and economic reason left modern work patterns deeply alienating, and how incentivizing long hours of unfulfilling work through “compensatory consumption” and an “ideology of work” led to the bifurcation of society into elite and “servile” classes. The Article then updates Gorz’s model to analyze the rise of several phenomena that represent a fuller extension of this bifurcation: the gig economy, which embodies Gorz’s notion of “disguising private activities and leisure activities themselves as work and jobs”; and what this Article terms “totalizing firms,” which conversely disguise work as leisure. The Article next discusses how economic reason has reinforced its hegemony, both by undermining the potential for political solidarity and through its entrenchment in the legal apparatus. Finally, the Article turns to how reorienting the labor movement and economic policy toward a focus on free time could challenge economic reason.
    • The Purloined Debtor: Edgar Allan Poe’s Bankruptcy in Law and Letters

      Sheley, Erin; Rosen, Zvi (Yale Journal of Law & the Humanities, 2023)
      This Article represents the first interdisciplinary case study of Edgar Allan Poe’s bankruptcy as an inflection point in the legal and cultural history of debt. Although Poe hardly leaps to mind for portrayals of legal procedure, much of his oeuvre reveals a terror of legal process as an interstitial principle. The anxiety around identity in Poe’s work reveals an ongoing struggle between an individual subject and two opposing yet equally degenerate legal statuses: possession and indebtedness. This opposition renders a distinct form of legal process legible in these texts: the then-emerging law of bankruptcy. Poe declared bankruptcy at a unique moment in American legal history, where for thirteen months in the early 1840s, America had a debtor-focused bankruptcy law under which a bankrupt could seek protection. Poe’s case, read alongside his literary output, reveals both legal and narrative contradictions at the heart of bankruptcy, which the 1841 Act did a poor job of resolving. On the one hand, bankruptcy reframes the identity of the debtor, who becomes the object of a quasi-inquisitorial process. On the other, bankruptcy restores some degree of material agency to the debtor as a subject, often at the expense of creditors.
    • Looking for the Common Good with Adrian Vermeule and William Shakespeare

      Sczygelski, Lucas P. (Yale Journal of Law & the Humanities, 2023)
      In a March 2020 essay for The Atlantic, Harvard Law professor Adrian Vermeule called on fellow conservative legal thinkers to renounce the bedrock principle on which Originalism rests—the separation of law and morality. Instead of placing legal reasoning inside an airtight box into which no moral or political exigencies may enter, Vermeule counseled the conservative legal movement to permit moral and legal claims to mingle freely, to drop the drab positivist hermeneutics and embrace a vibrant form of natural law oriented to the “common good.” The essay provoked intense reactions, and in the process Vermeule—an administrative lawyer theretofore known primarily for his robust if increasingly lonely conservative defense of Chevron deference—became something of a legal celebrity on the integralist right. His recent attempt to expand his 2020 essay into a book entitled Common Good Constitutionalism is the subject of this Article. I read Vermeule’s book against Shakespeare’s The Merchant of Venice in an attempt to draw out some of the unsettling ahistorical patness at the center of Vermeule’s theory. Where Vermeule assumes that legal questions can have a single correct solution coterminous with the common good, The Merchant of Venice provides that legal subjects, in their ineradicable and splendid human inconsistency, will have no trouble suggesting others.
    • “Death by Bureaucracy”: How the U.S. State Department Used Administrative Discretion to Bar Refugees from Nazi Europe

      Leff, Laurel (Yale Journal of Law & the Humanities, 2023)
      During the Nazi era, the United States could have remained within overall and country-by-country quotas limiting immigration and still have admitted an additional 350,000 refugees from Germany and Germanoccupied or -allied countries. Instead, the State Department, whose consular officers abroad decided whether visas were to be issued, denied them to hundreds of thousands seeking refuge between 1933 and 1945. Largely untethered by judicial or public oversight, consular officials deployed their discretion in a way that produced direct and often deadly consequences for the mostly Jewish refugees. This episode has been largely overlooked in histories of administrative or immigration law, and minimized in historical accounts focused upon congressional intransigence and presidential acquiescence in failing to change the statutory scheme. Its meaning has been lost in the gap between disciplines. This article seeks to bridge the divide by showing how State Department officials used the discretion afforded them under the immigration statute and through judicial decisions to implement an anti-foreign, antisemitic policy. Understanding the multiplicity of decisions officials faced gives lie to the oft-repeated refrain that the law in the form of an impenetrable statute dictated the result. Reviewing the history also demonstrates the power of the “law made me do it” claim, as it persists decade after decade, despite overwhelming evidence that “the law” did no such thing. This tragic case study ultimately illuminates the need for historians to develop a better understanding of law, and for legal scholars to gain a better understanding of history.
    • Law and Redemption: Expounding and Expanding Robert Cover’s Nomos and Narrative

      Levine, Samuel J. (Yale Journal of Law & the Humanities, 2023)
      This Article explores two interrelated themes that distinguish much of Robert Cover’s scholarship: reliance on Jewish sources and the redemption of American constitutionalism. Two pieces of Cover’s, Nomos and Narrative and Bringing the Messiah Through the Law: A Case Study, explore these themes, providing complementary views on the potential and limitations of the redemptive power of law. In Nomos and Narrative, Cover develops a metaphor of the law as a bridge, linking the actual to the potential. Bringing the Messiah Through the Law: A Case Study extends the metaphor through the lens of Jewish legal history. Building on Cover’s foundation, this Article further examines the transformative power of law in Jewish tradition, using examples that illustrate Cover’s redemptive vision for the law. The unrealized redemptive potential of the American legal system ultimately reflects the failure of American law and society to grapple with our past wrongs, a necessary first step on the bridge to Messianic harmony.
    • More Competitive Search Through Regulation

      Heidhues, Paul; Bonatti, Alessandro; Celis, L. Elisa; Crawford, Gregory S.; Dinielli, David; Luca, Michael; Salz, Tobias; Schnitzer, Monika; Scott Morton, Fiona; Sinkinson, Michael; et al. (Yale Journal on Regulation, 2023)
      This Article identifies a set of possible regulations that could be used both to make the search market more competitive and simultaneously ameliorate the harms flowing from Google’s current monopoly position. The purpose of this Article is to identify conceptual problems and solutions based on sound economic principles and to begin a discussion from which robust and specific policy recommendations can be drafted.
    • Market Design for Personal Data

      Bergemann, Dirk; Crémer, Jacques; Dinielli, David; Groh, Carl-Christian; Heidhues, Paul; Schäfer, Maximilian; Schnitzer, Monika; Scott Morton, Fiona; Seim, Katja; Sullivan, Michael (Yale Journal on Regulation, 2023)
      It is now generally understood that personal data––that is, data that relate to individual consumers––drive digital markets. Personal data underlie targeted advertising, which draws billions of dollars into ad-supported markets. Personal data are useful for other purposes as well. Firms in digital markets rely on personal data to deliver their core products and services––we refer to these collectively as “web services”1––to hone and improve them, and to recommend related products and services. These data facilitate innovation, allowing yet more services and “smart” products with increasingly personalized functionalities. Personal data can allow governments to deliver better public services, such as transportation systems, or can help researchers better understand how humans interact with algorithms and which policies might best serve society. And data can also facilitate competition, by improving quality and providing insight into consumer conduct that encourages entry. In these various ways, the massive quantity of personal data currently collected undoubtedly contributes to consumer welfare. But there also are downsides to the collection and use of personal data on such a grand scale. “Surveillance capitalism,” as Professor Shoshana Zuboff has termed it, has blurred the line between the personal and the public, and has commodified our habits, interests, and beliefs in ways that can feel distasteful and invasive. Massive data collection also has made information about us more accessible to government and commercial actors who often face little to no accountability for its misuse.
    • Fairness and Contestability in the Digital Markets Act

      Crémer, Jacques; Crawford, Gregory S.; Dinielli, David; Fletcher, Amelia; Heidhues, Paul; Schnitzer, Monika; Scott Morton, Fiona (Yale Journal on Regulation, 2023)
      According to the managerial strategy literature, a, if not the, key to large profits is the creation of “moats” that protect firms from competition. Firms with market power create moats to maintain that power, and there exist strong incentives to develop new technologies that allow for broader and deeper moats. On the other hand, from a broader societal perspective, and particularly from the perspective of consumers, these moats often are harmful: they surround customers and deny them the opportunity to purchase from competitors. As a result, consumers suffer from the high prices and/or low quality imposed by the incumbent firm, whose incentives to provide the amount and type of innovation desired by consumers are decreased.
    • Equitable Interoperability: The “Supertool” of Digital Platform Governance

      Scott Morton, Fiona M.; Crawford, Gregory S.; Crémer, Jacques; Dinielli, David; Fletcher, Amelia; Heidhues, Paul; Schnitzer, Monika (Yale Journal on Regulation, 2023)
      This Article is concerned with competition in digital platform markets where network effects are strong. As is widely acknowledged, these markets have an inherent tendency towards concentration, leaving consumers with little competition in the market. We explain how interoperability regulation can help stimulate competition in the market in a way that benefits consumers. There are different types of regulations that involve different levels of regulatory control of firms’ strategies and products. Interoperability is a form of regulation that is less intrusive than many others and is particularly suited to digital business models and fast changing digital technology. The report solicited by the European Commission on “Competition Policy for the Digital Era” (the Vestager Report) made this point in 2019,1 and we build on it here. Policy tools in this area include data portability and open standards, as well as interoperability. We will distinguish among these tools below, but we note here that the focus of this Article is on interoperability.