Administrative Note: Colloquy Pieces are Now Available on LEXIS

The Northwestern Law Review is pleased to announce that all Colloquy Essays and Posts are now available on LEXIS and continue to be available on WESTLAW.

Happy Memorial Day!  The Colloquy takes a break this week and will return next week with Professor Holning Lau's Essay entitled Human Rights and Globalization: Putting the Race to the Top in Perspective, which is a response to Professor David Law's article Globalization and the Future of Constitutional Rights, 102 Nw. U. L. Rev. (forthcoming 2008).  Click here to read Professor Law's article.

The Problematic Nature of Contractionist Statutory Interpretations

By Brian G. Slocum[*]

[download pdf]

The main thesis of Daniel B. Rodriguez and Barry R. Weingast’s recent article, The Paradox of Expansionist Statutory Interpretations,[1] is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts.  Specifically, the authors demonstrate that the broad interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes.  The authors claim the decisions involved “expansionist,” as opposed to accurate, interpretations because they extended the statutes beyond the critical legislators’ understanding of what the statutory language voted upon meant.[2]  Although these expansionist interpretations broadened the reach of important progressive legislation, they had the effect of discouraging moderate legislators from supporting progressive legislation and are partly to blame for the current polarization of Congress and the paucity of such legislation.

Rodriguez and Weingast explain that courts in the 1960s and 1970s were able to achieve expansionist interpretations of progressive legislation by misusing legislative history to support inaccurate conclusions about the intent or purpose of Congress.[3]  While the article’s insights about expansionist interpretations and the misuse of legislative history are an important contribution to statutory interpretation scholarship, the interpretive mistakes made by courts are largely different now than in the 1960s and 1970s.  For some time, the dominant trend has been for judges to rely more on rules of interpretation that typically narrow statutory meaning and less on pragmatic analysis or conclusions about likely congressional intent or purpose.[4]  Thus, if progressive social legislation were enacted today, courts would likely not engage in the same improper expansionist interpretations as they did in the past.[5]  They would, however, likely engage in improper contractionist interpretations that narrow the statutes beyond the critical legislators’ understanding of what the statutory language voted upon meant.

This Essay criticizes the current judicial predilection for contractionist statutory interpretations.  Part I explains how the rules of statutory interpretation are currently geared towards producing narrow, often contractionist, statutory interpretations.  Part II uses the Supreme Court’s recent decisions in Zadvydas v. Davis,[6] and Clark v. Martinez,[7] to illustrate the problems raised by contractionist interpretations.  This Part explains that while contractionist interpretations may not discourage moderate legislators from supporting legislation, they are problematic because they are inconsistent with the judiciary’s role as “faithful agents” of Congress.

Antitrust Issues Raised by the Emerging Global Internet Economy (Part II)

By David S. Evans[*]

[download pdf]

II.  The Economics and Technology of Web-Based Businesses

A.  The Economics of Multi-sided Platforms

Many of the key businesses that have arisen on the web are what economists call “multi-sided platforms.”[30]  A multi-sided platform provides goods or services to two or more distinct groups of customers who need each other in some way and who rely on the platform to intermediate transactions between them.[31]  Multi-sided platforms usually lower transactions costs and thereby facilitate value-creating exchanges.  They tend to arise when there is some value available from getting multiple sides together but transactions costs or other obstacles stand in the way.  eBay, for example, drastically lowered the cost of exchange between buyers and sellers of second-hand goods.

Multi-sided platforms usually perform each of three interrelated core functions to some degree.[32]  First, they serve as matchmakers to facilitate exchange by making it easier for members of each group to find each other.  That can be for love (matchmaker.com) or money (eBay).  Second, they build communities (or audiences) because this makes it more likely that members of a group will find a suitable match.  Facebook provides value in part because people are more likely to find people they want to meet and because advertisers can reach a large audience. The value of the platform grows as the audience grows.  Third, they provide shared resources and reduce the cost of providing services to multiple groups of customers. This is an especially important characteristic of software platforms discussed below.

One key feature of multi-sided platforms is the presence of the “indirect network effects” mentioned earlier.[33]  That means that the value that a customer on one side realizes from the platform increases with the number of customers on the other side.  Consumers looking to buy something value a search engine more if it provides advertisements that are more relevant to their search, while companies value advertising on a search engine higher if they are more likely to reach potential consumers.

Another key feature is that multi-sided platforms must cater to multiple, distinct customer groups simultaneously.  To establish a two-sided platform, for example, the founders must solve a chicken-and-egg problem: customers on Side A will not participate without customers on Side B, but customers on Side B will not participate without customers on Side A.  YouTube had to pursue people who want to post videos, people who want to watch videos, and advertisers who want to reach these viewers.  These features make the profit-maximizing calculus for a multi-sided platform more intricate than for a traditional business.  A firm operating one of these platforms must consider the demands of all sides, the interrelationships between these demands, the costs directly attributable to each side, and the costs of running the platform.

Further complicating this calculus is the fact that the profit-maximizing prices for multi-sided platforms can result in users on one side getting a price that is less than the incremental cost incurred by a customer on that side, and even less than zero.[34]  The side that is “needed more” or that is “harder to get” may receive a price break; conversely, the side that gets the most value out of access to members of the other side likely bears more of the cost.[35]  As an empirical matter, many multi-sided platforms make their money from one side and make access to the platform available to another side for a price that does not cover the cost of provision.[36]  Facebook, for example, is free to users and makes money by selling advertising.[37]

There are several major classes of industries in which most if not all of the businesses are based on multi-sided platforms.  These include advertising-supported media including newspapers, magazines, radio, television; payments including credit and debit cards; exchanges including auction houses, commodity exchanges and financial exchanges; and dating and matchmaking such as singles bars and matchmaking services.  Another major class consists of industries that have software platforms as their underlying technology.[38]  These include computer operating systems, mobile telephones, personal digital assistants, and video game consoles.[39]  They also include many web-based businesses.

Antitrust Issues Raised by the Emerging Global Internet Economy

By David S. Evans[*]

[download pdf]

[Editor's Note: This week, we are pleased to present Part I of Professor Evan's Essay on antitrust issues in the global internet economy.  Part II of this Essay will appear next week.]

Introduction

Web-based businesses are increasingly the subject of antitrust concerns. Plaintiffs in the United States have sued eBay for tying its online payments service to its transaction service.[1]  Multiple jurisdictions in the European Community have claimed that Apple has violated the competition laws by limiting the ability of its music player to play music from competing music stores and limiting the ability of competing music players to play music purchased from its music stores.[2]  During 2007, although the U.S. Federal Trade Commission decided not to block Google’s acquisition of DoubleClick after a lengthy investigation, it expressed its intent to “closely watch these markets” involved in online advertising.[3]

Of course, competition policymakers have not just discovered the web.  In 1998, shortly after the start of the commercial internet three years earlier, the U.S. Department of Justice and various states filed an antitrust case against Microsoft for engaging in various practices related to web browsers.[4]  The European Commission started an investigation of Microsoft’s practices related to media players that stream music over the internet in 2001.[5]  However, the Microsoft cases mainly involved the use of the company’s market power in personal computers to influence competition in web-based markets that threatened it.  The matters involving Apple, Google, and eBay concern market power in web-based products and services themselves.

The internet economy is likely to raise antitrust concerns—and possible demands for regulation—for years to come. Global gargantuan firms have emerged, which will likely attract scrutiny by competition authorities and by policymakers concerned with competition issues.  The companies mentioned above, for example, have shares in putative antitrust markets that rival those held by Microsoft.[6]  Apple has more than a 70 percent share of paid music downloads in the European Union,[7] Google has more than an 80 percent share of search queries in Europe,[8] and eBay has more than a 90 percent share of auction site page views in France, Germany, Italy, Spain, and the UK.[9]