Corporate funding for antitrust academics can be a problem

Cyril Ritter[1]

The topic of corporate funding for academic articles — and the possibility of academic bias — have been the subject of many recent press articles (here and here), blog posts (here, here, here and here), reports (here and here) and academic articles (here, here, here, here and here, for example). This debate is playing out on both sides of the Atlantic, mostly in the areas of antitrust, intellectual property, and internet regulation.

Corporate funding has been linked to ethical issues in medical research, food safety and nutrition, financial regulation, and other fields. There is no reason to believe that antitrust law and economics are necessarily immune to such concerns.

The response from some antitrust academics has been to make a series of arguments that are not particularly consistent with each other: (a) the funding doesn’t matter, only the ideas and arguments matter; (b) the campaign for better disclosure of corporate funding is itself driven by corporate funding from the other side, with a particular agenda in mind; (c) there is no evidence of academic bias; (d) there is no bias when academics express their sincere views; (e) at the same time, let’s aim for better disclosure of funding — but not all types of funding.

To be fair, antitrust agencies sometimes have relationships with academics as well, either as advisers or to produce studies, or by hiring academics in part-time or short-term positions. And corporate funding for academics can take place on both sides of an argument (antitrust defendants and antitrust complainants, licensors and licensees, content providers and platforms, infrastructure owners and “over the top” providers, etc).

The one constituency which is systematically under-represented in academic debates is consumers. This is probably another manifestation of the collective action problem: more concentrated interests are better at defending themselves, while larger groups — whose members have more diffuse interests — have more difficulty organising and financing efforts to push their interests. Given that many European academics’ salaries are paid by taxpayers, one would expect them to work in the public interest, instead of working for particular corporate interests (I am indebted to Ioannis Lianos for this idea).

1. Corporate funding artificially amplifies certain views

Certainly, every idea deserves to be discussed, regardless of its motives or sponsors. Equally, identifying the funding behind certain ideas does not automatically discredit such ideas, and is not meant to discredit them.

But corporate funding can “push” an idea very effectively through different channels, such as law journals, newspapers, and conferences. This happens not only through funding for articles, but also through other means: journal editors controlling the contents of their journals, awards for academic articles, and firms buying speaking slots on conference panels, for example. This can create the false impression that certain ideas are more prevalent than they really are. Corporate funding distorts the competition of ideas by essentially buying a large number of channels and spokespersons.

After reaching critical mass, an artificially created view can achieve a kind of self-propelling effect. This works especially well when this view is portrayed as the “modern” view. This effect is compounded when the proponents of a particular idea support their argument by referring to the “consensus” or dominant view in the literature. (EU antitrust judgments are peppered with parties’ arguments making references to “the literature”.) This is a way to cut short the debate rather than foster debate.

Not only does corporate funding seek to influence EU antitrust law, but it also seeks to replace some EU antitrust law notions with its artificially constructed consensus. For example, there is a view that the notion of “restriction by object” should include only those restrictions recognised as such in the “consensus” — that is, the consensus which is influenced by corporate funding. When the corporate-funded consensus argues that the law should reflect the corporate-funded consensus, we’ve come full circle.

2. Corporate funding changes the tone of academic discourse

Corporate funding moves the centre of gravity of academic debate from basic research to discussions of specific cases, often while those cases are still pending, and sometimes before there is even a decision to discuss. Is it a problem if the debate moves from the court room to the public arena? Not necessarily. But it can be a problem if ongoing cases are discussed in a superficial way, without reference to evidence, because there is no published decision (or even no decision adopted by the Commission). Debating a case in a superficial and confrontational way is a recipe for increasing polarisation, and I’m not sure the academic world should wish to be drawn into this trend.

Moreover, corporate funding replaces more neutral and reflective pieces by more argumentative, one-sided pieces. Again, it’s always good to debate ideas, but the point of academic literature is also to provide objective, reliable surveys of particular issues (even if an article can also put forward a thesis or personal opinions). By contrast, reading a piece influenced by corporate funding is a different mental exercise: it requires extra gymnastics to spot the gaps and find the “other side of the story”. It’s the difference between academic discourse and litigation. I can’t imagine that academics want their articles to be treated with the same degree of scepticism as written pleadings or lobbyists’ memos.

3. Corporate funding also produces more subtle effects

There are different types of corporate funding, from “restricted” and “unrestricted” financing for articles, to indirect funding (endowments, scholarships and sponsoring for departments and research centres), to ongoing relationships, for example when an academic regularly provides expert testimony to a client. When an academic is also employed by a law firm or has a long-standing relationship with that firm, one may wonder whether he or she is truly independent from the interests of the firm’s clients. The problem is even more acute for lawyers writing with their academic “hats” on.

All such types of funding should be disclosed, and efforts in that direction are welcome.[2] This could be subject to some appreciability threshold and subject to the confidentiality of client names where necessary (e.g. to maintain lawyer-client confidentiality or the confidentiality of arbitration proceedings; in such cases it would be enough to disclose funding from a client “with an interest in the discussion”). We could also consider disclosing not only ongoing funding, but all such funding over the last few years. Going further, authors could also disclose whether the document at issue (whether an academic article, a press article, or a speech or presentation) has been shared with its sponsors before publication.

But disclosure does not solve the more “subtle”, “insidious”, and “subconscious” types of corporate funding.[3]

(i) When an antitrust academic is looking to supplement his or her revenues with consulting work or funded articles, it becomes clear pretty quickly that there is more money in supporting corporate views. So the expectation of working for corporate clients can already pull an academic in a particular direction before such work even begins. The evidence on this point is difficult to collect, but the ability and incentives are there.

(ii) When a lawyer or academic has already completed some work for a corporate client but there is an expectation or possibility of further work for the same client, this is an ongoing relationship which is liable to impair objectivity. Speaking out against the former client’s interests is likely to rule out further work for that client.

(iii) Moreover, previously published corporate-funded views can make it harder for an academic to publicly change his or her mind. In other words, corporate funding can make some academics path-dependent. This can be even more problematic when someone makes the jump from lawyer or academic to a position in an antitrust agency or as a judge. In that new position, he or she may want to remain consistent with previously published positions. When those positions were influenced by corporate funding, such funding can effectively influence the public sector for years.

To be sure, there is no place for stigmatising individuals, everyone must be respected and heard, and all ideas deserve to be discussed. Academics provide invaluable services to their fields. The aim here is neither to “demonise all corporate-funded research”[4] nor to deny the possibility of corporate funding, nor to demand perfect objectivity. But perhaps we should aim to make at least some progress in terms of awareness of these issues and transparency — as a service to readers of academic articles.

[1] These are my personal views.

[2] Nicolas Petit, 14 July 2017, “On bias and conflicts of interest in antitrust academia”

[3] Robin Feldman, Mark Lemley, Jonathan Masur, and Arti K. Rai, “Open Letter on Ethical Norms in Intellectual Property Scholarship”, 29 Harvard Journal of Law & Technology 1–14 (2016).

[4] Pablo Ibáñez Colomo, Chilling Competition blog, 14 July 2017, “On companies funding legal research: beyond the sound and the fury”