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The Common Ownership Trilemma, José Azar Mar 2020

The Common Ownership Trilemma, José Azar

University of Chicago Law Review

This Essay argues that it is impossible to achieve the following objectives simultaneously: (i) portfolio diversification, (ii) shareholder representation, and (iii) competition. In an economy in which everyone holds the market portfolio, all companies have the same shareholders. If, in addition, firms act in the interest of their shareholders (in other words, if the agency problem is solved), the equilibrium outcome is equivalent to an economy-wide monopoly. When managers are entrenched, however, the anticompetitive effects of common ownership are mitigated, yet they only disappear completely in the extreme case that managers are fully insulated from shareholder dissent. The trilemma highlights ...


Filippo Maria Lancieri, Anu Bradford, Adam Chilton, Filippo Maria Lancieri Mar 2020

Filippo Maria Lancieri, Anu Bradford, Adam Chilton, Filippo Maria Lancieri

University of Chicago Law Review

Beginning in the 1950s, a group of scholars primarily associated with the University of Chicago began to challenge many of the fundamental tenants of antitrust law. This movement, which became known as the Chicago School of Antitrust Analysis, profoundly altered the course of American antitrust scholarship, regulation, and enforcement. What is not known, however, is the degree to which Chicago School ideas influenced the antitrust regimes of other countries. By leveraging new datasets on antitrust laws and enforcement around the world, we empirically explore whether ideas embraced by the Chicago School diffused internationally. Our analysis illustrates that many ideas explicitly ...


Startup Acquisitions, Error Costs, And Antitrust Policy, Kevin A. Bryan, Erik Hovenkamp Mar 2020

Startup Acquisitions, Error Costs, And Antitrust Policy, Kevin A. Bryan, Erik Hovenkamp

University of Chicago Law Review

Startup acquisitions by dominant incumbents, especially in high tech, have recently attracted significant attention. Many researchers and practitioners worry about harms to competition or innovation. However, there has been very little antitrust enforcement in this area. This is emblematic of a prominent feature of modern antitrust law: a strong preference for erring on the side of nonenforcement. A leading rationale for this preference is the claim that market power self-corrects by attracting new entrants who discipline incumbents.

As a result, plaintiffs generally face very demanding evidentiary requirements, which are particularly hard to satisfy in the case of startup acquisitions. A ...


The Case For “Unfair Methods Of Competition” Rulemaking, Rohit Chopra, Lina M. Khan Mar 2020

The Case For “Unfair Methods Of Competition” Rulemaking, Rohit Chopra, Lina M. Khan

University of Chicago Law Review

A key feature of antitrust today is that the law is developed entirely through adjudication. Evidence suggests that this exclusive reliance on adjudication has failed to deliver a predictable, efficient, or participatory antitrust regime. Antitrust litigation and enforcement are protracted and expensive, requiring extensive discovery and costly expert analysis. In theory, this approach facilitates nuanced and factspecific analysis of liability and well-tailored remedies. But in practice, the exclusive reliance on case-by-case adjudication has yielded a system of enforcement that generates ambiguity, drains resources, privileges incumbents, and deprives individuals and firms of any real opportunity to participate in the process of ...


Labor Antitrust’S Paradox, Hiba Hafiz Mar 2020

Labor Antitrust’S Paradox, Hiba Hafiz

University of Chicago Law Review

Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor-market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor-market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that ...


The Chicago School And The Forgotten Political Dimension Of Antitrust Law, Ariel Katz Mar 2020

The Chicago School And The Forgotten Political Dimension Of Antitrust Law, Ariel Katz

University of Chicago Law Review

An economically oriented and technocratic view of antitrust has dominated the discipline’s practice and scholarship for the last four decades. Under this view, attributed in large part to the rise of the Chicago School, questions of legality ought to be decided exclusively on the basis of supposedly objective economic analysis, which does not admit any consideration or insight other than those that economists and other experts trained in the field can analyze. Lately, prominent voices from both the political left and right have begun attacking this mainstream view and calling for an enhanced role for antitrust law in mediating ...


The Chicago Obsession In The Interpretation Of Us Antitrust History, William E. Kovacic Mar 2020

The Chicago Obsession In The Interpretation Of Us Antitrust History, William E. Kovacic

University of Chicago Law Review

No abstract provided.


Chicago And Its Discontents, Timothy J. Muris, Jonathan E. Nuechterlein Mar 2020

Chicago And Its Discontents, Timothy J. Muris, Jonathan E. Nuechterlein

University of Chicago Law Review

This symposium began with a call for papers “reassessing the validity of the Chicago School’s assumptions about competition and considering whether a more aggressive approach to antitrust enforcement is now warranted.” That framing uncritically accepts the premises of antitrust’s new populist movement: first, that “the Chicago School” marked an abrupt break from prior academic analysis of antitrust law, and second, that its adherents shared a common positive agenda fundamentally at odds with robust antitrust enforcement. Both of those premises are false. The Chicago School represented a logical continuation of the antitrust analysis developed over the preceding decades, and ...


The Arc Of Monopoly: A Case Study In Computing, Randal C. Picker Mar 2020

The Arc Of Monopoly: A Case Study In Computing, Randal C. Picker

University of Chicago Law Review

The world we live in today is defined by three great arcs. The first is the world of semiconductors and the innovation characterized by Moore’s law, the second is the creation of ubiquitous wireless access, and the third is the emergence of the internet platform. In that context, this Essay looks at government claims of monopolization in telecommunications and computing by considering past antitrust actions against AT&T, IBM, and Microsoft. Early antitrust actions against AT&T and IBM of course long predated the rise of the Chicago School, but later actions against AT&T and IBM overlapped that ...


What’S In Your Wallet (And What Should The Law Do About It?), Natasha Sarin Mar 2020

What’S In Your Wallet (And What Should The Law Do About It?), Natasha Sarin

University of Chicago Law Review

In traditional markets, firms can charge prices that are significantly elevated relative to their costs only if there is a market failure. However, this is not true in a two-sided market (like Amazon, Uber, and Mastercard), in which firms often subsidize one side of the market and generate revenue from the other. This means consideration of one side of the market in isolation is problematic. The Court embraced this view in Ohio v American Express, requiring that anticompetitive harm on one side of a two-sided market be weighed against benefits on the other side.

Legal scholars denounce this decision, which ...


The Effective Competition Standard: A New Standard For Antitrust, Marshall Steinbaum, Maurice E. Stucke Mar 2020

The Effective Competition Standard: A New Standard For Antitrust, Marshall Steinbaum, Maurice E. Stucke

University of Chicago Law Review

America’s failing antitrust system is, in large part, to blame for today’s market power problem. Lax antitrust law and enforcement have allowed troubling trends like corporate consolidation to remain unchallenged, further embedding our skewed economy. In highly concentrated markets, individuals have limited choice and little power to pick their price, quality, or provider for the goods and services they need; workers are met with powerful employers and have little agency to shop around or bargain for competitive wages and benefits; and suppliers can’t reach the market without paying powerful intermediaries or succumbing to acquisition.

Our Essay offers ...


Consent Behind Bars: Should It Be A Defense Against Inmates’ Claims Of Sexual Assault?, Nika Arzoumanian Jan 2020

Consent Behind Bars: Should It Be A Defense Against Inmates’ Claims Of Sexual Assault?, Nika Arzoumanian

University of Chicago Legal Forum

No abstract provided.


Speak Now: Results Of A One-Year Study Of Women’S Experiences At The University Of Chicago Law School, Mallika Balachandran, Roisin Duffy-Gideon, Hannah Gelbort Jan 2020

Speak Now: Results Of A One-Year Study Of Women’S Experiences At The University Of Chicago Law School, Mallika Balachandran, Roisin Duffy-Gideon, Hannah Gelbort

University of Chicago Legal Forum

No abstract provided.


Sexual Harassment Litigation With A Dose Of Reality, Diane P. Wood Jan 2020

Sexual Harassment Litigation With A Dose Of Reality, Diane P. Wood

University of Chicago Legal Forum

No abstract provided.


#Metoo As Catalyst: A Glimpse Into 21st Century Activism, Jamillah Bowman Williams, Lisa Singh, Naomi Mezey Jan 2020

#Metoo As Catalyst: A Glimpse Into 21st Century Activism, Jamillah Bowman Williams, Lisa Singh, Naomi Mezey

University of Chicago Legal Forum

No abstract provided.


#Metoo And Law Talk, Lesley Wexler Jan 2020

#Metoo And Law Talk, Lesley Wexler

University of Chicago Legal Forum

No abstract provided.


Sexual Harms Without Misogyny, Deborah M. Weiss Jan 2020

Sexual Harms Without Misogyny, Deborah M. Weiss

University of Chicago Legal Forum

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“Whistle Blowers”: To What Extent Does Federal Law Impose Mandatory Reporting Obligations On Collegiate Coaches For Allegations Of Sexual Misconduct?, Julia Tabat Jan 2020

“Whistle Blowers”: To What Extent Does Federal Law Impose Mandatory Reporting Obligations On Collegiate Coaches For Allegations Of Sexual Misconduct?, Julia Tabat

University of Chicago Legal Forum

No abstract provided.


Opening Closed Doors: How The Current Law Surrounding Nondisclosure Agreements Serves The Interests Of Victims Of Sexual Harassment, And The Best Avenues For Its Reform, D. Andrew Rondeau Jan 2020

Opening Closed Doors: How The Current Law Surrounding Nondisclosure Agreements Serves The Interests Of Victims Of Sexual Harassment, And The Best Avenues For Its Reform, D. Andrew Rondeau

University of Chicago Legal Forum

version 2


Patrolling Pregnant Immigrant Detainees’ Bodies, Alexa Rollins Jan 2020

Patrolling Pregnant Immigrant Detainees’ Bodies, Alexa Rollins

University of Chicago Legal Forum

version 2


Revenge Porn And The First Amendment: Should Nonconsensual Distribution Of Sexually Explicit Images Receive Constitutional Protection?, Evan Ribot Jan 2020

Revenge Porn And The First Amendment: Should Nonconsensual Distribution Of Sexually Explicit Images Receive Constitutional Protection?, Evan Ribot

University of Chicago Legal Forum

No abstract provided.


Antidiscrimination Statutes And Women-Only Spaces In The #Metoo Era, Anna Porter Jan 2020

Antidiscrimination Statutes And Women-Only Spaces In The #Metoo Era, Anna Porter

University of Chicago Legal Forum

No abstract provided.


Breaking The Bank: Split Interpretations Of The Bank Acts In The Era Of #Metoo, Conor R. Harvey Jan 2020

Breaking The Bank: Split Interpretations Of The Bank Acts In The Era Of #Metoo, Conor R. Harvey

University of Chicago Legal Forum

No abstract provided.


Challenging Abortion Informed Consent Regulations Through The First Amendment: The Case For Protecting Physicians’ Speech, Maia Dunlap Jan 2020

Challenging Abortion Informed Consent Regulations Through The First Amendment: The Case For Protecting Physicians’ Speech, Maia Dunlap

University of Chicago Legal Forum

No abstract provided.


Unofficial Reporting In The #Metoo Era, Deborah Tuerkheimer Jan 2020

Unofficial Reporting In The #Metoo Era, Deborah Tuerkheimer

University of Chicago Legal Forum

version 2


#Metoo As A Revolutionary Cascade, Cass R. Sunstein Jan 2020

#Metoo As A Revolutionary Cascade, Cass R. Sunstein

University of Chicago Legal Forum

No abstract provided.


Sexual Harassment By Any Other Name, Brian Soucek, Vicki Schultz Jan 2020

Sexual Harassment By Any Other Name, Brian Soucek, Vicki Schultz

University of Chicago Legal Forum

No abstract provided.


Schools As Training Grounds For Harassment, Ann C. Mcginley Jan 2020

Schools As Training Grounds For Harassment, Ann C. Mcginley

University of Chicago Legal Forum

No abstract provided.


Efficient Deterrence Of Workplace Sexual Harassment, Joni Hersch Jan 2020

Efficient Deterrence Of Workplace Sexual Harassment, Joni Hersch

University of Chicago Legal Forum

No abstract provided.


Witch Hunts: Free Speech, #Metoo, And The Fear Of Women’S Words, Mary Anne Franks Jan 2020

Witch Hunts: Free Speech, #Metoo, And The Fear Of Women’S Words, Mary Anne Franks

University of Chicago Legal Forum

No abstract provided.