网络产业中市场支配地位认定面临的新问题

网络产业中的市场支配地位受到不同于传统产业的一系列因素的影响,诸如网络效应、产品兼容、用户锁定、知识产权以及技术标准等都在网络产业市场支配地位的形成与维护中扮演重要角色。与之相适应,网络产业中的市场支配地位认定也面临一系列新问题：相关地区市场的界定在网络产业中变得更加复杂,传统的＂假定垄断者测试法＂面临质疑与挑战;市场份额对垄断力的影响在网络产业中相对减小,其计算方法与数值功能在网络产业中需要重新调整与评估;市场进入壁垒对垄断力的影响在网络产业中相对提升,传统壁垒减弱而新型壁垒增强。而将纯粹网络市场与混合市场予以区分、对＂盈利模式测试法＂、＂产品性能测试法＂、＂销售方式测试法＂等的尝试以及对由网络效应及其作用下的用户锁定、知识产权、技术标准等因素引发的新型市场进入壁垒的关注,则为解决这些新问题提供了具有建设性意义的新思路。     

Cable television and telephony in the telecommunications act of 1996: Economics,law, regulation and politics

Though reasonable people may argue about whether cable television and local telephone services are natural monopolies in theory, historically they have developed with infrastructures that make them more likely to have important declining cost characteristics in reality. Additionally, common carriage issues, especially for telephones, may necessitate regulatory oversight. Though touted as deregulation, and certainly eliminating many cross‐industry barriers, the Telecommunications Act of 1996 is better understood as reregulation. The act maintains a common carriage philosophy while attempting to promote competition. However, evidence indicates it is unlikely that the new regulatory regime will result in efficient prices or true competition. Instead, duopoly in cable and oligopoly in telephony are probably the best that can be achieved under the act.     

Symposium,Cannabis—Legal,Ethical, and Compliance Issues: Introduction

This introduction reviews six articles presented at the 2020 symposium, “Legal, Ethical, and Compliance Issues in Emerging Markets: Cannabis in the States.” Scholars from across the United States and Canada presented research using the lens of law and strategy, ethics, and compliance to focus on the U.S. cannabis industry. The articles are discussed within the framework of institutional voids common to emerging markets, which may include a lack of a fully developed regulatory system and issues related to financial markets. These institutional problems create complexity for consumers, producers, municipalities, and state governments in this industry, and make success for this market segment more challenging. The introduction contributes to the discussion by reviewing securities litigation involving the cannabis industry generally and specifically in light of some of the issues identified by authors in the special issue.     

Legal, ethical, and conceptual bottlenecks to the development of useful genomic tests

This article discusses advances in genomic research in the context of the debate surrounding gene patent rights and the limited rights of patient-participants in translational research. In addition, the author explores statutory and regulatory hurdles to advances in disease diagnosis, such the Bayh-Dole Act, Medicare Legislation, and the Health Insurance Portability and Accountability Act. The author questions the effectiveness of increasingly commercialized academic research and the limited success of the private sector in genomic research. The author concludes that future genomic research will require significantly increased patient participation, which may necessitate a reshaping of the pharmaceutical approach to medicine and the limited stake that patients have in the breakthroughs developed through their participation in the process.     

Profiling the mobile customer – Privacy concerns when behavioural advertisers target mobile phones – Part I

Mobile customers are being tracked and profiled by behavioural advertisers to be able to send them personalized advertising. This process involves data mining consumer databases containing personally-identifying or anonymous data and it raises a host of important privacy concerns. This article, the first in a two part series on consumer information privacy issues on Profiling the Mobile Customer, addresses the questions: “What is profiling in the context of behavioural advertising?” and “How will consumer profiling impact the privacy of mobile customers?” The article examines the EU and U.S. regulatory frameworks for protecting privacy and personal data in regards to profiling by behavioural advertisers that targets mobile customers. It identifies potential harms to privacy and personal data related to profiling for behavioural advertising. It evaluates the extent to which the existing regulatory frameworks in the EU and the U.S. provide an adequate level of privacy protection and identifies key privacy gaps that the behavioural advertising industry and regulators will need to address to adequately protect mobile consumers from profiling by marketers. The upcoming second article in this series will discuss whether industry self-regulation or privacy-enhancing technologies will be adequate to address these privacy gaps and makes suggestions for principles to guide this process.¹     

Orphan drug incentives in the pharmacogenomic context: policy responses in the US and Canada

Advances in pharmacogenomic research and increasing industry interest in personalized medicine have important implications for the way that orphan drug policies are interpreted and applied. Concerns have been raised about the potential impact of pharmacogenomics and new genomic technologies on our understanding of how disease categories are delineated, and subsequently, how the concept of rare disease should be defined for the purposes of orphan drug policies. This article considers whether orphan drug legislation can be drafted in a way that will maximize benefits and minimize concerns relating to the impact of pharmacogenomics on orphan drug research and development. After reviewing the issues that may arise at the intersection of orphan drug policies and pharmacogenomics, this article will discuss the potential impact of pharmacogenomics at two critical points: orphan designation and approval of the drug product. At each of these points, the relevant aspects of current US orphan drug legislation are examined, focusing on the extent to which recent amendments may address concerns that have been raised previously. This analysis will then provide the foundation for a critical review and recommendations regarding the proposed new Canadian orphan drug framework.     

An empirical study of tissue banking in Australia: navigating regulatory and ethical challenges

Collections of tumour samples can be an invaluable resource for medical research. There are, however, numerous ethical and legal challenges associated with tumour banking. While there has been extensive discussion of these issues in the legal and ethical literature, there are few available empirical data in relation to the activities of tumour banks in Australia, their practices around ethically charged issues, and their success in implementing complex regulatory guidelines. The aim of this study was to gain more information about the activities of tumour banks in New South Wales, Australia, with a particular focus on their management of, and attitudes towards, ethical and regulatory issues. A survey of 27 tumour collection and research facilities was conducted using a 55-item questionnaire. There is significant heterogeneity of research methodologies as well as of methods for gaining consent and ensuring donor privacy, and there is general concern among the research community about ethical and regulatory issues related to tumour banking. Heterogeneity of practice and uncertainty about ethical and regulatory requirements is problematic in its potential to hinder research and its potential to generate the space for unethical practice, whether intentional or unintentional. There is a pressing need to address these issues so that tumour banks can be used in the most ethical and efficient way possible.     

PGTandMe: social networking-based genetic testing and the evolving research model

The opportunity to use extensive genetic data, personal information, and family medical history for research purposes may be naturally appealing to the personal genetic testing (PGT) industry, which is already coupling direct-to-consumer (DTC) products with social networking technologies, as well as to potential industry or institutional partners. This article evaluates the transformation in research that the hybrid of PGT and social networking will bring about, and--highlighting the challenges associated with a new paradigm of "patient-driven" genomic research--focuses on the consequences of shifting the structure, locus, timing, and scope of research through genetic crowd-sourcing. This article also explores potential ethical, legal, and regulatory issues that arise from the hybrid between personal genomic research and online social networking, particularly regarding informed consent, institutional review board (IRB) oversight, and ownership/intellectual property (IP) considerations.     

Competition by regulation in energy markets: the case of Turkey

A fundamental question facing the regulatory and competition authorities is whether to delegate competition policy issues of utilities to regulatory agencies or competition authorities. While, some countries prefer ‘light handed regulation’ by competition authorities, others grant substantial power to independent regulatory agencies. Turkey followed the liberalization wave in electricity with a regulatory reform in 2001. Recently, a slight shift of tide has appeared in previously liberalized markets. Electricity markets are the forefront example of this change of course. A similar trend is apparent in Turkey as well. Increasing pressures on prices and excess demand have created more reasons for active government involvement. As political factors weigh in, economic considerations take a secondary place in electricity markets. In order to show the tension between political and economic preferences, we use the Pareto and Kaldor-Hicks criteria of welfare economics metaphorically. This paper discusses the scope of competition policy in the Turkish electricity industry. We focus on the issue of regulatory governance. The absence of a well established institutional environment reduces the potential role of competition policy in the industry and increase political meddling in all segments of the Turkish electricity market. By looking into changes in prices, market power and new entry closely, we discuss the relative success of the regulatory reform in the electricity industry. We conclude by emphasizing the consequences of a passive competition authority in establishing a competitive electricity market.     

Access to medicine in an era of fractal inequality

This article evaluates the legitimacy and degree of inevitability of unequal access to medicine. The author introduces 'fractal inequality' to the access issue by using the term to describe skewed patterns in distributions of income and wealth that lead to reallocative effects of higher spending on health care by the wealthiest that can cascade down the distributive ladder. 'Fractal inequality' is transposed to the U.S. health care sector to explain the trend away from medical need toward ability to pay. The author cautions U.S. policymakers to consider international access problems instead of exacerbating those issues when domestic access to care policies is debated in a vacuum. The author also analyzes some policy proposals designed to reduce inequities in the global trade of medicine.     

Are Those Cookies for Me or My Baby? Understanding Detained and Incarcerated Teen Mothers and Their Children

This article describes the barriers to understanding and meeting the needs of detained and incarcerated teen mothers and their children and suggests strategies for overcoming these barriers. The barriers include impaired research access, insufficient programs and services, and improper conditions of confinement. The author presents a blueprint of girl‐specific strategies for improving services, such as the administration of a needs‐based intake screening and assessment. Exemplary programs from around the nation are cited and their methods described. The article provides a comprehensive plan for systemic change that can be effected by judges, lawyers, program administrators, and other juvenile justice professionals.     

Recent developments in employee benefits law

The first part of this article highlights important judicial developments involving employee benefits and the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, during the latter part of 2003 and the first part of 2004, including the most significant U.S. Supreme Court and federal circuit court decisions. The second part covers recent legislative and regulatory developments in employee benefits law. This article is not meant to be exhaustive, but discusses the more important developments during 2003-2004, with particular focus on issues of concern to the insurance industry.     

The Asian factor: Methodological barriers to the study of Asian gangs and organized crime

This paper examines methodological barriers that confront the study of Asian criminal gangs and organized crime. Researchers need to address definitional issues, appreciate the pluralistic nature of Asian communities, incorporate region as a unit of analysis, enhance the reliability of interviewees’ responses, and recognize the impact of news media on the public perception of Asian crime. A research agenda is offered to deal with these issues in future research endeavors.     

Denunciation and the Illusion of Social Control: The Case of the Nevada Black Book

In Nevada, individuals me excluded from entering licensed casinos when their names have been listed by state regulatory bodies in what is popularly known as the Black Book. As a state regulatory procedure, Nevada's Black Book is officially aimed at excluding organized crime figures from the gaming industry. Beyond its manifest function, however, we believe that the drama of entering persons' names into the Black Book symbolically affirms the legitimacy of gaming and the efficacy of its regulatory body against perceived threats to the industry. Application of the procedure solely to the southern part of the state—Las Vegas— and chiefly to Italians reflects the group interests, culture conflicts, and stereotypes that underlie regulation of gaming. Central issues explored are the relationships of perceived threats to the origin and implementation of the Black Book; the perceptions of threat to the industry as emanating from those most alien to established groups; the sharp distinctions between the ethnic origins of the regulators and of those selected for inclusion in the Book; and the dramatization of the disreputability of those whose names are entered.     

Environmental policy integration among multilateral environmental agreements: the case of biodiversity

The system of multilateral environmental agreements (MEAs) comprises hundreds of conventions and protocols designed to protect the environment. Institutional interaction within the MEA system raises issues of environmental policy integration (EPI), i.e. balancing different environmental objectives and considerations. Mainstream proposals for enhancing EPI in environmental governance build upon the assumption that environmental institutions are fragmented. However, recent research reveals that the MEA system has been defragmenting over the years such that EPI is less a problem of institutional fragmentation than of effective management of institutional interplay. This paper examines the factors affecting EPI among MEAs by looking at experiences in the cluster of biodiversity-related multilateral agreements. The analysis is based on a series of interviews with MEA secretariat officials and international experts conducted between September 2011 and January 2012. The paper identifies institutional, political and cognitive barriers constraining interplay management efforts. While some have proposed regulatory changes in the cluster, national-level co-ordination appears to be the best way to advance EPI.     

Regulating technology: Can administrative agencies cope with technological change?

The debate over scientific issues has made a difficult transition from the scientific community to the public-polity process. The traditional view of scientists undertaking “pure” science in their laboratories did not envision government intervention into scientific and technological discovery through administrative agency regulation of risks associated with the results of such research. Yet examples of government regulation of technological risks abound as the nation grapples with nuclear power issues, new-drug testing, and environmental issues, to name a few. This paper considers whether the presently constituted regulatory apparatus is capable of responding to dramatic advances in technology in a timely and effective way. Concluding that it is not, the paper examines the circumscribing characteristics of the regulatory process. Then it discusses alternate approaches for regulating the risks posed by science and technology without doing too much violence to due process or the notion of public participation in the regulatory function.     

Educational Research and the Protection of Human Subjects

Educational research is increasingly subject to legal restrictions designed for the protection of human subjects of research. In this article the author discusses legal restrictions–both in the courts and under HEW regulations–on educational research, comparing these restrictions with those on biomedical research. He finds that although educational research in particular instances may give rise to suits for damages for invasion of privacy or intentional infliction of psychological distress, the legal issues relating to educational research will most often be resolved in proceedings before institutional review boards charged by HEW with the responsibility for passing upon proposals to conduct research on human subjects. He argues that the interests protected in proceedings before institutional review boards are not limited to those that have received judicial recognition in suits for damages. The author finds that the requirement that the informed consent of subjects be obtained presents difficult issues for educational research. He notes in particular the problems presented by research proposals that as an element of the research design contemplate the observation of subjects without their knowledge and the use of children as research subjects.     

Cultivating Evidence-Based Pathways for Cannabis Product Development: Implications for Consumer Protection†

Disparities between federal and state cannabis regulation, coupled with protracted federal enforcement, have facilitated the proliferation of a multi–billion dollar cannabis industry that generally evades compliance with federal consumer protection laws. The Federal Food, Drug and Cosmetic Act (FDCA) established regulatory pathways for the lawful development of products such as food, drugs, and dietary supplements. The FDCA uses a science-based approach to protect consumers from harmful products, but early inconsistencies between state and federal cannabis regulation prevented and/or discouraged the cannabis industry from complying with FDCA requirements. Cannabis products are promoted as safe and attributed with providing effective therapeutic treatment for numerous medical conditions, yet the claims often lack the rigorous evidence-based support typically expected by regulators and the medical community. The Food and Drug Administration (FDA) has announced its expectation that cannabidiol (CBD) products comply with the FDCA and follow a science-based approach to product development. The FDA is addressing violations involving unsubstantiated CBD health claims and is working to clarify the future regulatory pathway for CBD products. Meanwhile, the state-approved cannabis market continues to operate, selling numerous products that have circumvented the FDCA consumer protections. This article examines the need for strengthening consumer protections in the cannabis market. We use evidence-based medicine as a model to address the importance of science-based product development and to contextualize a science-based comparison of regulatory pathways for cannabis drugs, food, and dietary supplements.     

Medical research on minors in Finland

This article concerns the legal regulation of medical research on children in Finland. The topic is covered by the Medical Research Act of 1999 and by the Recommendations issued by the Working group on medical research on children in 2003. The Decisions of the Parliamentary Ombudsman also play an important role in this area in Finland. The article focuses on two specific issues: involvement of guardians in decision-making for the child, and the expansion of the right to self-determination of minors. Two case examples on these topics are also discussed. Overall, the author comes to the conclusion that the Finnish legislation, policy-makers, investigators and the industry have succeeded well in taking into account international legislation in this area, although there is also room for improvement.     

Food Fraud and the Partnership for a ‘Healthier’ America: A Case Study in State-Corporate Crime

At a moment of heightened public concern over food-related health issues, major corporations in the food industry have found their products and practices under scrutiny. Needing to be understood as socially responsible, these corporations have established partnerships with the state to construct a positive, proactive, and cooperative public image. One major public–private partnership that evolved from former First Lady Michelle Obama’s Let’s Move initiative—the Partnership for a Healthier America—serves as a case study in this paper, which analyzes the consequences and social harms perpetuated by a public health campaign bound by the imperative to maximize profit. By using trusted state actors to deliver accurate but deceptive claims about food companies’ commitment to public health, this public–private partnership actively misleads the public and potentially exacerbates public health challenges, warranting a skeptical revision of how we understand corporate social responsibility and neoliberal governance on issues of health and nutrition. As a form of fraud, these attempts to mislead the public go beyond the actions of public sector individuals or members of corporate boards, but are structurally incentivized by the legal rights, regulatory privileges, and profit-related incentives central to the modern corporate form. While conventional criminological research tends to underemphasize state and corporate harms, we make use of a critical criminological perspective to analyze state-corporate partnerships in the space between food industry practices and public health policy.