Michal Gal | University of Haifa (original) (raw)

Papers by Michal Gal

Competition Law as Regulation

In the past two decades the number of jurisdictions which have empowered their Competition Author... more In the past two decades the number of jurisdictions which have empowered their Competition Authorities to engage in market inquiries (MIs) has grown substantially. Although jurisdictions differ in the scope and procedure adopted for such studies, they all share an important common trait: attempting to allocate the roots of limited competition in the studied market. Market studies differ from traditional competition law tools in their triggers, range, object, and the level of pro-activity of the Competition Authority. They are not triggered by a suspicion of anti-competitive conduct of specific firm(s), but rather allow the Authority to use a broad prism which focuses on a wider set of potential obstacles to competition, including the Authority's own past conduct, in order to find ways to enhance competition. MIs entail many advantages. Yet, bestowing this power upon a Competition Authority is not self-explanatory. Furthermore, it is far from costless. Beyond the direct costs imposed on both the Authority and market participants, MIs often carry less tangible price tags. They raise a host of constitutional, democratic and practical issues that have not been thoroughly studied as of yet, which are the focus of this paper. In so doing, the paper builds, inter alia, on the recent administrative law literature which focuses on multi-agency interactions. Accordingly, this paper seeks to provide a synergetic analysis of MIs for the benefit of policymakers.

Journal of Competition Law and Economics, 2012

One of the most interesting and challenging phenomena of our information age is the rapid and sig... more One of the most interesting and challenging phenomena of our information age is the rapid and significant change that takes place in high-technology industries. This change is shaking some of our assumptions regarding the role of technology (for example, endogenous or exogenous), productions methods (for example, commercial entities versus social communities), markets (for example, product or innovation markets), market characteristics (for example, network industries, faster information transfer to market players and consumers), and non-market management systems. 1 It requires us to recognize the effects of such changes on the economic environment and to ensure that our regulatory tools secure the positive welfare effects that such changes can bring about. The articles in this special issue attempt to meet this two-pronged challenge and shed light on the implications of changes in the marketplace for both the market's invisible hand and the government's visible one. In particular, they address the over-arching concerns expressed by some commentators that competition law may not be sufficiently nimble or accurate to detect and remedy competition violations in more innovative industries. 2

Antitrust Law Journal, 2023

Algorithms, especially those based on artificial intelligence, play an increasingly important rol... more Algorithms, especially those based on artificial intelligence, play an increasingly important role in our economy. They are used by market participants to make pricing, output, quality, and inventory decisions; to predict market entry, expansion, and exit; and to predict regulatory moves. In a growing number of jurisdictions, algorithms are also used by regulators to detect and analyze anti-competitive conduct. This game-changing switch to (semi-)automated decision-making has the potential to reshape market dynamics. While the effect of algorithms on coordination between competitors has been a focus of attention, and scholarly work on their effects on unilateral conduct is beginning to accumulate, merger control issues have been undertreated. Accordingly, this article focuses on such issues. The article identifies six main functions of algorithms that may affect market dynamics: collection and ordering of data; improving the ability to use existing data; reducing the need for data, for instance by generating synthetic data; monitoring; predicting, to determine how different types of conduct, including mergers, are likely to affect market conditions; and decision-making. The article demonstrates how such algorithms can exacerbate anticompetitive conduct with respect to both unilateral and coordinated effects. Towards this end, seven scenarios are explored: collusion, oligopolistic coordination, high unilateral prices, price discrimination, predation, selective pricing (in which a buyer offers a higher price to some suppliers in an aggressive bid for an input), and reducing the interoperability of datasets. For each scenario, we analyze how the market conditions necessary for such conduct are affected by algorithms. These findings are then translated into merger policy. Algorithms are shown to affect substantive as well as institutional features of merger control. Algorithms also challenge some of the assumptions that are

Competition Policy and Regional Integration in Developing Countries

6 Competition law need not be the only area on which states cooperate. Indeed, as noted above, ma... more 6 Competition law need not be the only area on which states cooperate. Indeed, as noted above, many RCAs are parts of wider agreements on trade.

Introduction: The Importance of the Question Merger policy is an important tool for limiting priv... more Introduction: The Importance of the Question Merger policy is an important tool for limiting privately-erected artificial barriers to competition. Its unique qualities, mainly the fact that it is applied ex ante in order to prevent external changes in market structure which harm social welfare, and the fact that it is the most effective tool in a competition law's toolbox for limiting oligopolistic coordination, serve to explain its spread around the world. Countries of all sizes and economic characteristics have adopted it into their competition laws, from India to Guernsey, from China to Barbados. Indeed, the number of countries with merger regulation has increased from 8 in 1989 to more than 110 in 2009, and the number is still growing. 1 This widespread adoption raises the question of whether there is a one-size-fits-all merger policy, or whether some jurisdictions' economic characteristics affect their ability to effectively apply a merger policy in a way which requires some fine-tuning. This question, which generates interesting scholarly and practical debates, 2 Two forces push and pull merger policy. On the one hand, the "follower push" whereby jurisdictions-mostly small, developing or young-benefit from transplanting and following the laws of large, developed jurisdictions with efficient and effective merger regimes. is addressed in this paper, focusing on small and on micro jurisdictions. The latter, in particular, bring some of the tradeoffs involved in the design of merger policy to an extreme and provide an interesting and under-explored case study.

University of Toronto Law Journal, 2010

This essay argues that regional competition law agreements on joint enforcement and advocacy (rjc... more This essay argues that regional competition law agreements on joint enforcement and advocacy (rjcas) hold an important potential to solve many of the enforcement problems that small and developing jurisdictions face and can provide additional benefits that go beyond such solutions. It also argues that the costs involved in such agreements are not prohibitive and that many of these costs can be overcome by structuring appropriate solutions. Accordingly, rjcas have the potential to create Pareto superior solutions to enforcement problems relative to unilateral enforcement. The essay then broadens the analysis to the potential effects of rjcas on non-member states. It is argued that such agreements create much lower negative externalities for non-member states and for international coordination efforts than regional trade agreements. On the contrary, they often create positive externalities for non-member jurisdictions. Accordingly, they offer important potential for strengthening comp...

Antitrust: Antitrust Law & Policy eJournal, 2018

Big data has become an important resource not only for commerce, but also for governance. Governa... more Big data has become an important resource not only for commerce, but also for governance. Governance-by-data seeks to take advantage of the bulk of data collected by private firms, to make law enforcement more efficient. It can take many forms, including setting enforcement priorities, affecting methods of proof, and even changing the content of legal norms. For instance, car manufacturers can use real-time data on the driving habits of drivers, to learn how their cars respond to different driving patterns. If shared with the government, the same data can be used to enforce speeding limits or even to craft personalized speeding limits for each driver. The sharing of data for the purpose of law enforcement, raises obvious concerns to civil liberties. Indeed, over the past two decades, scholars have focused on the risks arising from such data sharing for privacy and freedom. So far, however, the literature has generally overlooked the implications of such dual use of data for data mar...

Big data has become an important resource not only for commerce but also for governance. Governan... more Big data has become an important resource not only for commerce but also for governance. Governance-by-data seeks to take advantage of the bulk of data collected by private firms to make law enforcement more efficient. It can take many forms, including setting enforcement priorities, affecting methods of proof, and even changing the content of legal norms. For instance, car manufacturers can use real-time data on the driving habits of drivers to learn how their cars respond to different driving patterns. If shared with the government, the same data can be used to enforce speed limits or even to craft personalized speed limits for each driver. The sharing of data for the purpose of law enforcement raises obvious concerns for civil liberties. Indeed, over the past two decades, scholars have focused on the risks arising from such data sharing for privacy and freedom. So far, however, the literature has generally overlooked the implications of such dual use of data for data markets and ...

SSRN Electronic Journal, 2014

(last visited Nov. 2, 2014) (arguing that free pricing is an inevitable and a normatively accepta... more (last visited Nov. 2, 2014) (arguing that free pricing is an inevitable and a normatively acceptable approach to pricing internet services in a digital world, due to the abundance of resources, which enables firms to leverage this abundance and give services away while profiting from other services that remain scarce, as well as due to the efficiencies in the provision of digital services. The "near-zero" marginal cost associated with digital distribution makes it possible to share services with a large number of individuals with only negligible increases in cost.

SSRN Electronic Journal, 2017

We will (hopefully) never reach the Matrix trilogy's vision of a world in which a computer makes ... more We will (hopefully) never reach the Matrix trilogy's vision of a world in which a computer makes all the choices for us while we float in a bubble, oblivious to the true nature of our reality. 11 But like the apple in the garden, 5.

A realistic analysis of antitrust must deal in positive terms with political influences. Politica... more A realistic analysis of antitrust must deal in positive terms with political influences. Political influences are especially strong in the antitrust arena, where decisions and policy measures often significantly affect the profitability of market players. It is thus important, in designing an antitrust regime, to acknowledge such influences and to design institutions and methods that will harness political aspirations to the achievement of antitrust goals. Accordingly, the goal of this article is to analyze the different effects political motivations might have on antitrust, and to suggest tools that may minimize such effects. A short theoretical analysis of the political economy of antitrust enforcement is followed by some recent and interesting examples of cases in which political influences shaped antitrust decisions. The conclusion that is reached is that we should wisely recognize that politics cannot be simply ignored. Building upon this conclusion, the article then introduces...

Law & Economics: Private Law (Topic), 2009

International trade has changed some of the challenges faced by antitrust authorities: it has add... more International trade has changed some of the challenges faced by antitrust authorities: it has added an international dimension. Under the current system of international antitrust, the backbone of enforcement is unilateral: each country applies its own tools to deal with international antitrust issues within the constraints imposed upon it by public international law. This enforcement pattern is sometimes coupled with cooperation agreements which are based on the realization that while cooperation among firms might be anti-competitive, this is generally not true for cooperation among countries. Yet such cooperation is often limited. This paper, which is part of a book on Cooperation, Comity And Competition Policy (Oxford University Press, 2009), analyzes the effects that a unilateral enforcement system has on a small economy, by focusing on a specific case study: Israel. The case of Israel is interesting not only as a stand-alone case study, but mostly because it provides useful ins...

Law & Economics, 2007

May a dominant firm justify below-cost pricing by simply arguing that it aligned its prices with ... more May a dominant firm justify below-cost pricing by simply arguing that it aligned its prices with those of its rivals? In this essay I show that generally the answer is negative. I also argue, however, that such a rule should not be categorical and that in some circumstances a below-price meeting competition defense should be allowed, in order to protect competition. Such an exception is necessary in order to take account of the special economic characteristics of dynamic industries which differ from the brick-and-mortar industry model that assumes that scale economies are small and entry barriers are low. The article exemplifies these arguments by using the EU recent France Telecom case.

A bit over a decade ago the Israeli competition law was amended. The legislator simply 'cut a... more A bit over a decade ago the Israeli competition law was amended. The legislator simply 'cut and paste' Article 82 of the Treaty of Rome, which prohibits the abuse of dominance, into the Israeli Competition Act. The question this article addresses is whether the copying of Article 82 has been a Trojan horse - in that its adoption into brought in doctrines and legal rules which did not serve well Israeli competition law, or whether it served as a racing horse, in that it move forward the Israeli law of abuse. The answer, I suggest, is a hybrid horse. Nonetheless, a few years of exercise on the local racetrack have strengthened its racing abilities by acclimatizing it to the special conditions of the new legal environment. The article uses the Israeli experience as a case study and reaches some interesting conclusions with regard to the conditions necessary for a successful legal transplant.

For the most part, competition policy literature focuses on large economies. Yet the economic par... more For the most part, competition policy literature focuses on large economies. Yet the economic paradigms on which such competition policies are based do not necessarily apply to the many small market economies that exist around the world. As this paper argues, the size of an economy necessarily affects the optimal competition policy that should be adopted by it. The paper demonstrates the effects of market size both on rules of thumb used in competition policy as well as on more general policy prescriptions, such as policy goals, trade-offs and remedial tools. The implications of this article extend beyond domestic competition policy to the evaluation of the current global drive towards the world-wide harmonization of competition policies. * Visiting fellow, NYU center for Law and Business. The author wishes to thank Michael J. Trebilcock, Bill Bishop, Avery Katz, Valentine Korah, Victor Goldberg, Harvey Goldschmid, Frank Mathewson, David Tadmor, Ralph Winter and Richard Whish for in...

Laws are oftentimes modeled, at least in part, on those of jurisdictions with established antitru... more Laws are oftentimes modeled, at least in part, on those of jurisdictions with established antitrust regimes, a trend we call “the follower phenomenon.” Follower behavior might involve a transplant of a legal rule, its interpretation, or both.This article analyzes the main causes of the follower phenomenon in antitrust and its welfare effects, both on the following jurisdiction and on the followed one. It argues that the proliferation of one's antitrust prohibitions can sometimes act as a boomerang, negatively affecting the welfare of the followed jurisdiction as well as third jurisdictions. This boomerang effect can result from three main causes: (a) the limited ability of the followed jurisdiction's domestic firms to monopolize or cartelize foreign markets due to stricter antitrust policies of the following jurisdiction based on a correct following of the followed jurisdiction’s antitrust prohibitions; (b) the abandonment of neutral or procompetitive conduct by firms based ...

Algorithms are employed by a growing number of firms in order to make choices for users. One prom... more Algorithms are employed by a growing number of firms in order to make choices for users. One prominent example involves news and views consumption through media platforms, which is increasingly mediated by algorithmic personalization. Rather than engaging with the rich variety of ideas on the web, many online users are exposed primarily to content chosen by algorithms, which generally attempts to fit each user’s pre-existing views. This raises questions regarding competition law’s responsibility and ability to protect the free exchange of ideas in the marketplace. We argue that while competition law can be used to protect the diversity of content in the market, the protection of a diversity of exposure is much more challenging. An interference that is aimed at exposing users to diverse ideas need not conflict with the goals of antitrust. In particular, we argue that even if algorithmic choices attempt to cater to users’ preferences, they need not conflict with the ideals of consumer...

Business law journal, 1997

Competition Law as Regulation

In the past two decades the number of jurisdictions which have empowered their Competition Author... more In the past two decades the number of jurisdictions which have empowered their Competition Authorities to engage in market inquiries (MIs) has grown substantially. Although jurisdictions differ in the scope and procedure adopted for such studies, they all share an important common trait: attempting to allocate the roots of limited competition in the studied market. Market studies differ from traditional competition law tools in their triggers, range, object, and the level of pro-activity of the Competition Authority. They are not triggered by a suspicion of anti-competitive conduct of specific firm(s), but rather allow the Authority to use a broad prism which focuses on a wider set of potential obstacles to competition, including the Authority's own past conduct, in order to find ways to enhance competition. MIs entail many advantages. Yet, bestowing this power upon a Competition Authority is not self-explanatory. Furthermore, it is far from costless. Beyond the direct costs imposed on both the Authority and market participants, MIs often carry less tangible price tags. They raise a host of constitutional, democratic and practical issues that have not been thoroughly studied as of yet, which are the focus of this paper. In so doing, the paper builds, inter alia, on the recent administrative law literature which focuses on multi-agency interactions. Accordingly, this paper seeks to provide a synergetic analysis of MIs for the benefit of policymakers.

Journal of Competition Law and Economics, 2012

One of the most interesting and challenging phenomena of our information age is the rapid and sig... more One of the most interesting and challenging phenomena of our information age is the rapid and significant change that takes place in high-technology industries. This change is shaking some of our assumptions regarding the role of technology (for example, endogenous or exogenous), productions methods (for example, commercial entities versus social communities), markets (for example, product or innovation markets), market characteristics (for example, network industries, faster information transfer to market players and consumers), and non-market management systems. 1 It requires us to recognize the effects of such changes on the economic environment and to ensure that our regulatory tools secure the positive welfare effects that such changes can bring about. The articles in this special issue attempt to meet this two-pronged challenge and shed light on the implications of changes in the marketplace for both the market's invisible hand and the government's visible one. In particular, they address the over-arching concerns expressed by some commentators that competition law may not be sufficiently nimble or accurate to detect and remedy competition violations in more innovative industries. 2

Antitrust Law Journal, 2023

Algorithms, especially those based on artificial intelligence, play an increasingly important rol... more Algorithms, especially those based on artificial intelligence, play an increasingly important role in our economy. They are used by market participants to make pricing, output, quality, and inventory decisions; to predict market entry, expansion, and exit; and to predict regulatory moves. In a growing number of jurisdictions, algorithms are also used by regulators to detect and analyze anti-competitive conduct. This game-changing switch to (semi-)automated decision-making has the potential to reshape market dynamics. While the effect of algorithms on coordination between competitors has been a focus of attention, and scholarly work on their effects on unilateral conduct is beginning to accumulate, merger control issues have been undertreated. Accordingly, this article focuses on such issues. The article identifies six main functions of algorithms that may affect market dynamics: collection and ordering of data; improving the ability to use existing data; reducing the need for data, for instance by generating synthetic data; monitoring; predicting, to determine how different types of conduct, including mergers, are likely to affect market conditions; and decision-making. The article demonstrates how such algorithms can exacerbate anticompetitive conduct with respect to both unilateral and coordinated effects. Towards this end, seven scenarios are explored: collusion, oligopolistic coordination, high unilateral prices, price discrimination, predation, selective pricing (in which a buyer offers a higher price to some suppliers in an aggressive bid for an input), and reducing the interoperability of datasets. For each scenario, we analyze how the market conditions necessary for such conduct are affected by algorithms. These findings are then translated into merger policy. Algorithms are shown to affect substantive as well as institutional features of merger control. Algorithms also challenge some of the assumptions that are

Competition Policy and Regional Integration in Developing Countries

6 Competition law need not be the only area on which states cooperate. Indeed, as noted above, ma... more 6 Competition law need not be the only area on which states cooperate. Indeed, as noted above, many RCAs are parts of wider agreements on trade.

Introduction: The Importance of the Question Merger policy is an important tool for limiting priv... more Introduction: The Importance of the Question Merger policy is an important tool for limiting privately-erected artificial barriers to competition. Its unique qualities, mainly the fact that it is applied ex ante in order to prevent external changes in market structure which harm social welfare, and the fact that it is the most effective tool in a competition law's toolbox for limiting oligopolistic coordination, serve to explain its spread around the world. Countries of all sizes and economic characteristics have adopted it into their competition laws, from India to Guernsey, from China to Barbados. Indeed, the number of countries with merger regulation has increased from 8 in 1989 to more than 110 in 2009, and the number is still growing. 1 This widespread adoption raises the question of whether there is a one-size-fits-all merger policy, or whether some jurisdictions' economic characteristics affect their ability to effectively apply a merger policy in a way which requires some fine-tuning. This question, which generates interesting scholarly and practical debates, 2 Two forces push and pull merger policy. On the one hand, the "follower push" whereby jurisdictions-mostly small, developing or young-benefit from transplanting and following the laws of large, developed jurisdictions with efficient and effective merger regimes. is addressed in this paper, focusing on small and on micro jurisdictions. The latter, in particular, bring some of the tradeoffs involved in the design of merger policy to an extreme and provide an interesting and under-explored case study.

University of Toronto Law Journal, 2010

This essay argues that regional competition law agreements on joint enforcement and advocacy (rjc... more This essay argues that regional competition law agreements on joint enforcement and advocacy (rjcas) hold an important potential to solve many of the enforcement problems that small and developing jurisdictions face and can provide additional benefits that go beyond such solutions. It also argues that the costs involved in such agreements are not prohibitive and that many of these costs can be overcome by structuring appropriate solutions. Accordingly, rjcas have the potential to create Pareto superior solutions to enforcement problems relative to unilateral enforcement. The essay then broadens the analysis to the potential effects of rjcas on non-member states. It is argued that such agreements create much lower negative externalities for non-member states and for international coordination efforts than regional trade agreements. On the contrary, they often create positive externalities for non-member jurisdictions. Accordingly, they offer important potential for strengthening comp...

Antitrust: Antitrust Law & Policy eJournal, 2018

Big data has become an important resource not only for commerce, but also for governance. Governa... more Big data has become an important resource not only for commerce, but also for governance. Governance-by-data seeks to take advantage of the bulk of data collected by private firms, to make law enforcement more efficient. It can take many forms, including setting enforcement priorities, affecting methods of proof, and even changing the content of legal norms. For instance, car manufacturers can use real-time data on the driving habits of drivers, to learn how their cars respond to different driving patterns. If shared with the government, the same data can be used to enforce speeding limits or even to craft personalized speeding limits for each driver. The sharing of data for the purpose of law enforcement, raises obvious concerns to civil liberties. Indeed, over the past two decades, scholars have focused on the risks arising from such data sharing for privacy and freedom. So far, however, the literature has generally overlooked the implications of such dual use of data for data mar...

Big data has become an important resource not only for commerce but also for governance. Governan... more Big data has become an important resource not only for commerce but also for governance. Governance-by-data seeks to take advantage of the bulk of data collected by private firms to make law enforcement more efficient. It can take many forms, including setting enforcement priorities, affecting methods of proof, and even changing the content of legal norms. For instance, car manufacturers can use real-time data on the driving habits of drivers to learn how their cars respond to different driving patterns. If shared with the government, the same data can be used to enforce speed limits or even to craft personalized speed limits for each driver. The sharing of data for the purpose of law enforcement raises obvious concerns for civil liberties. Indeed, over the past two decades, scholars have focused on the risks arising from such data sharing for privacy and freedom. So far, however, the literature has generally overlooked the implications of such dual use of data for data markets and ...

SSRN Electronic Journal, 2014

(last visited Nov. 2, 2014) (arguing that free pricing is an inevitable and a normatively accepta... more (last visited Nov. 2, 2014) (arguing that free pricing is an inevitable and a normatively acceptable approach to pricing internet services in a digital world, due to the abundance of resources, which enables firms to leverage this abundance and give services away while profiting from other services that remain scarce, as well as due to the efficiencies in the provision of digital services. The "near-zero" marginal cost associated with digital distribution makes it possible to share services with a large number of individuals with only negligible increases in cost.

SSRN Electronic Journal, 2017

We will (hopefully) never reach the Matrix trilogy's vision of a world in which a computer makes ... more We will (hopefully) never reach the Matrix trilogy's vision of a world in which a computer makes all the choices for us while we float in a bubble, oblivious to the true nature of our reality. 11 But like the apple in the garden, 5.

A realistic analysis of antitrust must deal in positive terms with political influences. Politica... more A realistic analysis of antitrust must deal in positive terms with political influences. Political influences are especially strong in the antitrust arena, where decisions and policy measures often significantly affect the profitability of market players. It is thus important, in designing an antitrust regime, to acknowledge such influences and to design institutions and methods that will harness political aspirations to the achievement of antitrust goals. Accordingly, the goal of this article is to analyze the different effects political motivations might have on antitrust, and to suggest tools that may minimize such effects. A short theoretical analysis of the political economy of antitrust enforcement is followed by some recent and interesting examples of cases in which political influences shaped antitrust decisions. The conclusion that is reached is that we should wisely recognize that politics cannot be simply ignored. Building upon this conclusion, the article then introduces...

Law & Economics: Private Law (Topic), 2009

International trade has changed some of the challenges faced by antitrust authorities: it has add... more International trade has changed some of the challenges faced by antitrust authorities: it has added an international dimension. Under the current system of international antitrust, the backbone of enforcement is unilateral: each country applies its own tools to deal with international antitrust issues within the constraints imposed upon it by public international law. This enforcement pattern is sometimes coupled with cooperation agreements which are based on the realization that while cooperation among firms might be anti-competitive, this is generally not true for cooperation among countries. Yet such cooperation is often limited. This paper, which is part of a book on Cooperation, Comity And Competition Policy (Oxford University Press, 2009), analyzes the effects that a unilateral enforcement system has on a small economy, by focusing on a specific case study: Israel. The case of Israel is interesting not only as a stand-alone case study, but mostly because it provides useful ins...

Law & Economics, 2007

May a dominant firm justify below-cost pricing by simply arguing that it aligned its prices with ... more May a dominant firm justify below-cost pricing by simply arguing that it aligned its prices with those of its rivals? In this essay I show that generally the answer is negative. I also argue, however, that such a rule should not be categorical and that in some circumstances a below-price meeting competition defense should be allowed, in order to protect competition. Such an exception is necessary in order to take account of the special economic characteristics of dynamic industries which differ from the brick-and-mortar industry model that assumes that scale economies are small and entry barriers are low. The article exemplifies these arguments by using the EU recent France Telecom case.

A bit over a decade ago the Israeli competition law was amended. The legislator simply 'cut a... more A bit over a decade ago the Israeli competition law was amended. The legislator simply 'cut and paste' Article 82 of the Treaty of Rome, which prohibits the abuse of dominance, into the Israeli Competition Act. The question this article addresses is whether the copying of Article 82 has been a Trojan horse - in that its adoption into brought in doctrines and legal rules which did not serve well Israeli competition law, or whether it served as a racing horse, in that it move forward the Israeli law of abuse. The answer, I suggest, is a hybrid horse. Nonetheless, a few years of exercise on the local racetrack have strengthened its racing abilities by acclimatizing it to the special conditions of the new legal environment. The article uses the Israeli experience as a case study and reaches some interesting conclusions with regard to the conditions necessary for a successful legal transplant.

For the most part, competition policy literature focuses on large economies. Yet the economic par... more For the most part, competition policy literature focuses on large economies. Yet the economic paradigms on which such competition policies are based do not necessarily apply to the many small market economies that exist around the world. As this paper argues, the size of an economy necessarily affects the optimal competition policy that should be adopted by it. The paper demonstrates the effects of market size both on rules of thumb used in competition policy as well as on more general policy prescriptions, such as policy goals, trade-offs and remedial tools. The implications of this article extend beyond domestic competition policy to the evaluation of the current global drive towards the world-wide harmonization of competition policies. * Visiting fellow, NYU center for Law and Business. The author wishes to thank Michael J. Trebilcock, Bill Bishop, Avery Katz, Valentine Korah, Victor Goldberg, Harvey Goldschmid, Frank Mathewson, David Tadmor, Ralph Winter and Richard Whish for in...

Laws are oftentimes modeled, at least in part, on those of jurisdictions with established antitru... more Laws are oftentimes modeled, at least in part, on those of jurisdictions with established antitrust regimes, a trend we call “the follower phenomenon.” Follower behavior might involve a transplant of a legal rule, its interpretation, or both.This article analyzes the main causes of the follower phenomenon in antitrust and its welfare effects, both on the following jurisdiction and on the followed one. It argues that the proliferation of one's antitrust prohibitions can sometimes act as a boomerang, negatively affecting the welfare of the followed jurisdiction as well as third jurisdictions. This boomerang effect can result from three main causes: (a) the limited ability of the followed jurisdiction's domestic firms to monopolize or cartelize foreign markets due to stricter antitrust policies of the following jurisdiction based on a correct following of the followed jurisdiction’s antitrust prohibitions; (b) the abandonment of neutral or procompetitive conduct by firms based ...

Algorithms are employed by a growing number of firms in order to make choices for users. One prom... more Algorithms are employed by a growing number of firms in order to make choices for users. One prominent example involves news and views consumption through media platforms, which is increasingly mediated by algorithmic personalization. Rather than engaging with the rich variety of ideas on the web, many online users are exposed primarily to content chosen by algorithms, which generally attempts to fit each user’s pre-existing views. This raises questions regarding competition law’s responsibility and ability to protect the free exchange of ideas in the marketplace. We argue that while competition law can be used to protect the diversity of content in the market, the protection of a diversity of exposure is much more challenging. An interference that is aimed at exposing users to diverse ideas need not conflict with the goals of antitrust. In particular, we argue that even if algorithmic choices attempt to cater to users’ preferences, they need not conflict with the ideals of consumer...

Business law journal, 1997

JCLE, 2020

In the EU, private litigation of competition law violations is in its nascence. As this article s... more In the EU, private litigation of competition law violations is in its nascence. As this article shows, excessive pricing raises strong concerns for such litigation, for three reasons: (1) the inherent difficulty of defining what constitutes an unfair price; (2) additional challenges inherent to private excessive pricing litigation, such as the need to pinpoint when exactly a price becomes unfair; and (3) the institutional features of general courts in EU member states, which are ill-suited to the required tasks. We elaborate on these concerns, pointing to four specific challenges inherent to private litigation and to three instances where a lack of sufficient economic understanding could entrap general courts (a cost trap, a fairness trap, and a monopolistic competition trap). Together, these factors create a risk of error costs much higher than any experienced so far, which could potentially reduce welfare. The article suggests some measures that can be taken to ensure that welfare is served.

Human choice is a foundational part of our social, economic and political institutions. This focu... more Human choice is a foundational part of our social, economic and political institutions. This focus is about to be significantly challenged. Technological advances in data collection, data science, artificial intelligence, and communications systems are ushering in a new era in which digital agents, operated through algorithms, replace human choice with regard to many transactions and actions. While algorithms will be given assignments, they will autonomously determine how to carry them out. This game-changing technological development goes to the heart of autonomous human choice. It is therefore time to determine whether and, if so, under which conditions, are we willing to give up our autonomous choice.

To do so, this article explores the rationales that stand at the basis of human choice, and how they are affected by autonomous algorithmic assistants; it conscientiously contends with the “choice paradox” which arises from the fact that the decision to turn over one’s choices to an algorithm is, itself, an act of choice. As shown, while some rationales are not harmed – and might even be strengthened – by the use of autonomous algorithmic assistants, others require us to think hard about the meaning and the role that choice plays in our lives. The article then examines whether the existing legal framework is sufficiently potent to deal with this brave new world, or whether we need new regulatory tools. In particular, it identifies and analyzes three main areas which are based on choice: consent, intent and laws protecting negative freedom.