'Human Rights' Protection for Corporate Antitrust Defendants: Are We Not Going Overboard?

There seems to be a clear trend of increased protection of ‘corporate human rights’ and, more specifically, due process rights (or procedural fairness) in the field of enforcement of competition law. To a large extent, that trend is based on the uncritical extension of human rights protection to corporate defendants by a process of simple assimilation of corporate and individual defendants. This paper briefly explores the rationale behind the creation of due process rights when the individual is the beneficiary of such protection. It then goes on to critically assess if the same need exists for the extension of those protections to corporate defendants, particularly in the field of competition law or antitrust enforcement. It concludes with some warnings concerning the diminishing effectiveness of competition law prohibitions and of human law protection that can result from an overstretched conception of due process protection in this area of EU economic law. From a substantive perspective, the paper submits that the extension of human rights to corporations cannot be uncritical and should not be completely symmetrical to that for human beings; but that it rather needs to be necessarily adapted to their circumstances. To put it more bluntly, it is suggested that in the field of the enforcement of economic law, administrative law procedures should be sound and there should clearly be a strong system of judicial review in place, but corporations should not have access to broader constitutional or human rights protections and any perceived shortcomings in the design and application of those procedures should remain within the sphere of regulatory reform.
Reference :

together with Albert Sánchez-Graells in Procedural Fairness in Competition Proceedings (P. Nihoul; T. Skoczny eds.) Cheltenham: Edward Elgar Publishing, 2015, ISBN 978-1-78536-005-3 pages 84-107

Transposition of the Antirust Damages Directive into Spanish Law

This chapter analyses the legal measures adopted to implement Directive 2014/104/EU into Spanish law. After briefly looking at the context of private enforcement of competition law in Spain, it examines the process followed for the transposition and the issues discussed before the adoption of the Transposition Decree in May 2017. Overall, it can be affirmed that the new rules comply with the mandates of the Directive, only in a few matters there seems that there will be doubts concerning the interpretation of the new provisions. Some of the doubts may be rooted in the Directive itself (relative responsibility of co-infringers, umbrella claimants, harm to suppliers), and others in the lack of express rules in the Transposition Decree on some matters (causation, fault requirement, interests calculation), moreover it is uncertain how the new procedural tools will play out in practice as they imply a revolutionary change in our procedural rules.
Reference :

in B. Rodger, M.S. Ferro & F. Marcos (eds) The EU Antitrust Damages Directive: Transposition in the Member States (Oxford University Press, due for publication in 2018)

Blowing Hot and Cold: The last word of the Spanish Supreme Court on Setting Fines for Competition Law Infringements

On January 29 2015 the Spanish Supreme Court issued an opinion clarifying the limits faced by Spanish competition authorities in imposing economic penalties for infringements of competition law and the criteria that guide the calculation of the amount of fines. This judgment is of paramount importance for the effectiveness of public enforcement actions by administrative authorities in Spain and it will force them to change the methods and steps followed in figuring the amount of fines. Though Supreme Court’s holdings in the case move away from EU Law, it will surely have a positive impact in deterrence by pushing the amount of fines upwards through the clarification of the relevant turnover that should be used in calculating the limit to the fine (‘total turnover’ instead of ‘turnover in the market affected by the infringement’). Nevertheless, the Supreme Court annuls the Guidelines that Spanish competition authorities have been using in the last four years in quantifying the amount of fines, leaving little room for new Guidelines to be adopted, and making more difficult to predict their amount in the future.
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Working Paper IE Law School AJ8-220-I 19-02-2015

Regulatory Avoidance and Suicide: An Empirical Analysis

This article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists — the very defendants who would seem best able to prevent suicide. Using a 50-state panel regression for 1981 to 2013, we find that states that would hold psychiatrists (but not other doctors) liable for malpractice resulting in a suicide experienced a 12.8% increase in suicides. The effect is even stronger, 16.8%, when we include controls. We do not believe this is because suicide prevention doesn’t work. Rather, we theorize that it is because some psychiatrists facing potential liability choose not to work with patients at high risk for suicide. The article makes important contributions to the law of proximate cause and to the more general phenomenon of regulatory avoidance. Traditionally, one could not be liable for malpractice that causes another’s suicide — the suicide was considered a superseding and intervening cause. About half of states retain the old common law rule. Others have created exceptions for psychiatrists only, or for all doctors, and some have abandoned the old rule entirely. Our findings suggest that expanding liability for psychiatrists may have an adverse affect. Accordingly, this article suggests that the best policy might be to retain or revive the traditional no-liability-for-suicide rule for mental health specialists. The implications are enormous: over 40,000 people in the United States die each year from suicide. Keywords: torts, suicide JEL Classification: K13, K32, I18
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Indiana Law Journal (forthcoming 2017)

Causation Actually

The article debunks the consensus that in concerted action, concurrent causes and alternative liability situations, the actual causation requirement is missing. While courts and scholars insist that in these cases tort law holds liable parties who clearly did not cause the victim’s harm, this article offers a novel approach. Using a simple model and applying it to leading decisions, it shows that a party who did not and could not even potentially injure the victim could nevertheless be a but-for reason for the harm. The article also challenges claims that causation theories like concerted action, substantial factor and alternative liability are fair to the victim or that they are designed to deter actors from engaging in “antisocial” activities. In deviation from the prior literature, this article reveals that these causation theories reduce the parties’ incentives to take care and result in more, rather than fewer, accidents. This article further shows that, despite lip service to the contrary, tort law promotes harmful activities that judges declare immoral, antisocial and illegal. The article argues, however, that in many cases this result can be justified on efficiency grounds. The article concludes that the but-for test should have a larger role in causation analysis, and it provides a number of policy recommendations to courts and lawmakers. Keywords: actual causation, concerted action, concurrent causes, alternative liability, but-for, substantial factor, NESS, efficiency, welfare, fairness, deterrence
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51 Georgia Law Rev. 1 (2016) (Lead Article)


This Article argues that mass torts involving multiple tortfeasors can be welfare enhancing. It begins by investigating the role of “dilution of liability” — a phenomenon that has been condemned for its role in facilitating accidents. According to the literature, in alternative care situations where the damage to the victim is constant, dilution of liability leads to inefficient precaution levels and consequently to more (bad) accidents. The Article deviates from this literature and shows that dilution of liability can be welfare enhancing. This is so even in the quintessential case where dilution of liability has been denounced. The Article further shows that an activity that is socially undesirable and should give rise to liability can become desirable as the number of tortfeasors increases. Put differently, it shows that in some situations an activity that would and should be condemned if conducted by one tortfeasor may become socially desirable if done by many. The Article analyzes the conditions under which such desirable “tortfests” occur, and it has important implications to the salience literature. After investigating the impact of tortfests on actors’ precaution and activity levels, the Article examines mechanisms that would incentivize actors, in certain situations, to join a group wrongdoing or combine with others to initiate one. The result, it is argued, could increase societal welfare. Keywords: tortfest, mass torts, dilution of liability, salience, alternative care, collusion, punitive damages, activity levels, precaution levels, economic analysis JEL Classification: A12, D20, D61, D72, K13
Reference :

80 U. Chi. L. Rev. 953 (2013)

Emergencies, Body Parts and Price Gouging

The study of emergency has received much attention from political theorists. Relying on the realms of philosophy, theology and morality, these scholars have focused on whether acts of the sovereign in times of emergency should lie "inside" the law (i.e., be subject to scrutiny) or "outside" the law (i.e., enjoy some form of immunity). This article, on the other hand, utilizes economic theory to analyze emergencies. It argues that some emergencies are subject to the same laws of demand and supply and often do not mandate any intervention; while others may deserve a unique treatment (often within the law) that can be premised on simple rational behavior models. Specifically, this paper discusses two types of emergencies: private and public. The discussion of private emergencies focuses on decisions in which courts were asked to compel one to undergo a medical procedure to give an organ that would save the life of another. The article employs economic theory to reconcile the seemingly contradictory decisions. The article also investigates strategic behaviors, remedial reactions and under what conditions, if any, courts (or regulators) should intervene in organ transactions. The discussion of public emergencies focuses on price gouging. It reviews a number of anti-price gouging laws, the conditions that trigger them as well as the justifications for and against these laws. Using a number of examples, the article demonstrates how the so called "exorbitant prices" help decrease shortages, enable inflow and storage of essential commodities, allocate scarce resources, reduce strategic behavior and queues and stabilize demand. It argues that the assumption underlying anti-price gouging laws - that markets fail in times of emergency - is often erroneous. Keywords: Emergency, Body Parts, Transplants, Organs, Price Gouging, Unconscionable contracts, Economic Analysis
Reference :

In Sovereignty, Emergency, Legality, Cambridge University Press, 2009).

Algorithmic Consumers

The next generation of e-commerce will be conducted by digital agents, based on algorithms that will not only make purchase recommendations, but will also predict what we want, make purchase decisions, negotiate and execute the transaction for the consumers, and even automatically form coalitions of buyers to enjoy better terms, thereby replacing human decision-making. Algorithmic consumers have the potential to change dramatically the way we conduct business, raising new conceptual and regulatory challenges. This game-changing technological development has significant implications for regulation, which should be adjusted to a reality of consumers making their purchase decisions via algorithms. Despite this challenge, scholarship addressing commercial algorithms focused primarily on the use of algorithms by suppliers. This article seeks to fill this void. We first explore the technological advances which are shaping algorithmic consumers, and analyze how these advances affect the competitive dynamic in the market. Then we analyze the implications of such technological advances on regulation, identifying three main challenges.
Reference :

Gal, Michal S. and Elkin-Koren, Niva, Algorithmic Consumers (August 8, 2016). Harvard Journal of Law and Technology, Vol. 30, 2017. Available at SSRN:

The 'Consumer Choice' Paradigm in German Ordoliberalism and its Impact Upon EU Competition Law

This paper explores the origin and the development of the "consumer choice" paradigm as the core concept of German ordoliberal thought which has had a strong impact on EU competition policy and law. Even though it is actually under attack from the welfare economic approach that emphasizes "consumer welfare" instead of "consumer choice", the latter paradigm is still deeply rooted in the jurisprudence of the CJEU.
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