Witt on The Digital Markets Act 

Anne Witt (EDHEC Business School – Department of Legal Sciences) has posted “The Digital Markets Act – Regulating the Wild West” (Common Market Law Review, Forthcoming 2023) on SSRN. Here is the abstract:

This contribution critically assesses the European Union’s Digital Markets Act (DMA). The DMA is the first comprehensive legal regime to regulate digital gatekeepers in the aim of making platforms markets fairer and more contestable. To this end, the DMA establishes 22 per se conduct rules for designated platforms. It also precludes national gatekeeper regulation by EU Member States, thereby calling into question the legality of the pioneering German sec. 19a GWB. The analysis shows that the DMA’s rules are not as rigid as they may appear at first sight. While it is more accepting of false positives than of false negatives, the DMA contains several corrective mechanisms that could allow the Commission to finetune the rules to address both the danger of over- and under-inclusiveness. A further positive is that the new regulation incorporates key concepts of the GDPR, and requires coordination between the Commission and key EU data protection bodies. On the downside, the DMA does not contain any substantive principles for the assessment of gatekeeper acquisitions, leaving a worrying gap. While the DMA’s conduct rules outlaw specific leveraging strategies in digital ecosystems and may thereby indirectly address certain non-horizontal concerns arising from gatekeeper acquisitions, it remains that the European Union’s existing guidance on merger control is seriously out of date. The merger guidelines therefore urgently need updating to include (workable) theories of harm for concentrations in the digital economy.

Shope on GPT Performance on the Bar Exam in Taiwan

Mark Shope (National Yang Ming Chiao Tung University; Indiana University Robert H. McKinney School of Law) has posted “GPT Performance on the Bar Exam in Taiwan” on SSRN. Here is the abstract:

This paper reports the performance of the GPT-4 Model of ChatGPT Plus (“ChatGPT4”) on the multiple-choice section of the 2022 Lawyer’s Bar Exam in Taiwan. ChatGPT4 outperforms approximately half of human test-takers on the multiple-choice section with a score of 342. This score, however, would not advance a test taker to the second and final essay portion of the exam. Therefore, this paper will not include an evaluation of ChatGPT4’s performance on the essay portion of the exam.

Gallese on the AI Act and the Right to Technical Interpretability

Chiara Gallese (University of Trieste Dept of Engineering) has posted “The AI Act Proposal: a New Right to Technical Interpretability?” on SSRN. Here is the abstract:

The debate about the concept of the so called right to explanation in AI is the subject of a wealth of literature. It has focused, in the legal scholarship, on art. 22 GDPR and, in the technical scholarship, on techniques that help explain the output of a certain model (XAI). The purpose of this work is to investigate if the new provisions introduced by the proposal for a Regulation laying down harmonised rules on artificial intelligence (AI Act), in combination with Convention 108 plus and GDPR, are enough to indicate the existence of a right to technical explainability in the EU legal framework and, if not, whether the EU should include it in its current legislation. This is a preliminary work submitted to the online event organised by the Information Society Law Center and it will be later developed into a full paper.