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Quasi Tripartism: Limits Of Co-Regulation And Sectoral Bargaining In The United States, César F. Rosado Marzán Mar 2023

Quasi Tripartism: Limits Of Co-Regulation And Sectoral Bargaining In The United States, César F. Rosado Marzán

University of Chicago Law Review

Disproportionate employer power is at least partly responsible for the sharp increase in economic inequality in the United States, which threatens the fabric of the Republic. Workplace law reform could provide workers with an institutional source of power that countervails employer power and compresses inequality. Ideas for workplace law reform include modest ones, such as instituting “co-enforcement,” and more ambitious ones, such as “sectoral bargaining.” According to their adherents, both require tripartite arrangements where capital, labor, and government provide inputs on how to regulate work.

But can the United States, with its liberal market economy typically devoid of meaningful tripartism, …


Losing Leverage: Employee Replaceability And Labor Market Power, Cynthia Estlund Mar 2023

Losing Leverage: Employee Replaceability And Labor Market Power, Cynthia Estlund

University of Chicago Law Review

Workers’ labor market power matters enormously to their lives at work and beyond. And most workers have too little of it. This Essay highlights one underappreciated set of factors in the decline of workers’ labor market power and explores policy levers that might help to rebalance the bargaining field. This Essay begins with the fairly self-evident observation that workers’ labor market power is a product in part of the ease with which employers can replace employees. That points to the importance of several trends in the organization and technology of work—including both fissuring and automation—that make it easier for private …


Antitrust Worker Protections: The Rule Of Reason Does Not Allow Counting Of Out-Of-Market Benefits, Laura Alexander, Steven C. Salop Mar 2023

Antitrust Worker Protections: The Rule Of Reason Does Not Allow Counting Of Out-Of-Market Benefits, Laura Alexander, Steven C. Salop

University of Chicago Law Review

Anticompetitive conduct toward upstream trading partners may have the effect of benefiting downstream consumers even as the conduct harms the firms’ workers or suppliers. Defendants may attempt to justify their upstream conduct—and may rely on the ancillary restraints doctrine in doing so—on the grounds that the restraints create efficiencies benefitting downstream purchasers, rather than focusing solely on the impact of the restraints on the workers or suppliers in the upstream market. Such balancing of harms against out-of-market benefits achieved by a different group should be rejected by antitrust doctrine generally, and specifically in the case of harms to workers. This …


Horizontal Collusion And Parallel Wage Setting In Labor Markets, Jonathan S. Masur, Eric A. Posner Mar 2023

Horizontal Collusion And Parallel Wage Setting In Labor Markets, Jonathan S. Masur, Eric A. Posner

University of Chicago Law Review

Horizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product-market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These and related …


Restructuring American Antitrust Law: Institutionalist Economics And The Antitrust Labor Immunity, 1890–1940s, Laura Phillips-Sawyer Mar 2023

Restructuring American Antitrust Law: Institutionalist Economics And The Antitrust Labor Immunity, 1890–1940s, Laura Phillips-Sawyer

University of Chicago Law Review

Labor unions and their leaders were cast as the perennial antitrust defendants for the first fifty years of federal antitrust law, and this historic imbalance fostered a movement in economic scholarship and labor activism to restructure American antitrust law. The progressive liberal-institutionalist movement in economics played an important role in legitimizing trade unions by recasting them, not as anticompetitive cartels, but rather as a necessary corollary to the growing market power of industrial firms. Louis Brandeis, the litigator and future jurist, drew from institutionalists’ work to support antitrust reform. He argued that antitrust law was not necessarily anathema to the …


Coercive Rideshare Practices: At The Intersection Of Antitrust And Consumer Protection Law In The Gig Economy, Christopher L. Peterson, Marshall Steinbaum Mar 2023

Coercive Rideshare Practices: At The Intersection Of Antitrust And Consumer Protection Law In The Gig Economy, Christopher L. Peterson, Marshall Steinbaum

University of Chicago Law Review

This Essay considers antitrust and consumer protection liability for coercive practices vis-à-vis drivers that are prevalent in the rideshare industry. Resale price maintenance, nonlinear pay practices, withholding data, and conditioning data access on maintaining a minimum acceptance rate all curtail platform competition, sustaining a high-price, tacitly collusive equilibrium among the few incumbents. Moreover, concealing relevant trip data from drivers is both deceptive and unfair when the platforms are in full possession of the relevant facts. In the absence of these coercive practices, customers too would be better off due to platform competition, which would lower average prices by sharpening competition …


Regulatory Trading, David A. Weisbach Jan 2023

Regulatory Trading, David A. Weisbach

Coase-Sandor Working Paper Series in Law and Economics

Regulatory trading systems, such as the SO2 cap and trade system, are ubiquitous in environmental and natural resources law. In addition to cap and trade systems for pollutants such as SO2, NOx and CO2 , environmental and natural resources law uses trading in areas such as endangered species, water quality, wetlands, vehicle mileage, and forestry and farming practices. Trading, however, is rarely used as a regulatory approach in other areas of law. This paper seeks to identify the reasons for this dichotomy. To understand the dichotomy, the paper examines the uses of trading in environmental and natural resources law, where …


Climate Change Policy In The International Context: Solving The Carbon Leakage Problem, David A. Weisbach, Samuel S. Kortum Jan 2023

Climate Change Policy In The International Context: Solving The Carbon Leakage Problem, David A. Weisbach, Samuel S. Kortum

Coase-Sandor Working Paper Series in Law and Economics

Under the Paris Agreement, nations set their own emissions goals and policies. As a result, climate policies vary widely across countries, with some countries imposing stringent emissions policies and others doing very little. A key problem when carbon policies vary across countries is that energy-intensive industries can relocate to places with few or no emissions restriction. Relocated industries would continue to pollute but would be operating in a less desirable location. Moreover, the countries that imposed strict emissions reductions lose the benefit of having those industries located domestically. This problem, known as leakage, is one of the key reasons the …


Hidden Value Transfers In Public Utilities, Aneil Kovvali, Joshua Macey Jan 2023

Hidden Value Transfers In Public Utilities, Aneil Kovvali, Joshua Macey

Coase-Sandor Working Paper Series in Law and Economics

Many electric utilities in the United States own rate regulated and non-rate regulated subsidiaries. The rate regulated subsidiaries enjoy legal monopolies and a right to a return on their capital investments but are only allowed to charge regulatorily authorized rates. The non-rate regulated subsidiaries participate in competitive markets and are generally free to earn whatever profits they can but are subject to the threat of displacement by other enterprises.

Many electric utilities in the United States own rate regulated and non-rate regulated subsidiaries. The rate regulated subsidiaries enjoy legal monopolies and a right to a return on their capital investments …


Distributing Deterrence Fairly: A New Rationale For Decoupling Tort Liability, H. Javier Kordi Jan 2023

Distributing Deterrence Fairly: A New Rationale For Decoupling Tort Liability, H. Javier Kordi

Coase-Sandor Working Paper Series in Law and Economics

Tort law faces a dilemma: how to adhere to a principle of make-whole compensation without entrenching social inequities. High-earning people receive greater compensation awards, resulting in an unequal distribution of deterrence. The deterrence disparity arises because injurers would rationally direct risky activity towards poorer victims to reduce liability costs; it persists even if race and gender classifications are barred from compensation. This Article offers a novel solution to the dilemma. It develops a decoupled liability regime under which injurers pay damages and are subject to standards of care that are invariant across individual victims, thus equalizing the distribution of deterrence. …


Labor Mobility And The Problems Of Modern Policing, Jonathan S. Masur, Aurélie Ouss, John Rappaport Jan 2023

Labor Mobility And The Problems Of Modern Policing, Jonathan S. Masur, Aurélie Ouss, John Rappaport

Coase-Sandor Working Paper Series in Law and Economics

We document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.

We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, …


Privacy Protection, At What Cost? Exploring The Regulatory Resistance To Data Technology In Auto Insurance, Omri Ben-Shahar Jan 2023

Privacy Protection, At What Cost? Exploring The Regulatory Resistance To Data Technology In Auto Insurance, Omri Ben-Shahar

Coase-Sandor Working Paper Series in Law and Economics

Regulatory and sociological resistance to new market-driven technologies, particularly to those that rely on collection and analysis of personal data, is prevalent even in cases where the technology creates large social value and saves lives. This article is a case study of such tragic technology resistance, focusing on tracking devices in cars which allow auto insurers to monitor how policyholders drive and adjust the premiums accordingly. Growing empirical work reveals that such “usage-based insurance” induces safer driving, reducing fatal accidents by almost one third, and resulting in more affordable and fair premiums. Yet, California prohibits this technology and other states …


Sponsor Control: A New Paradigm For Corporate Reorganization, Vincent S.J. Buccola Jan 2023

Sponsor Control: A New Paradigm For Corporate Reorganization, Vincent S.J. Buccola

University of Chicago Law Review

Bankruptcy scholars have long organized their field around a stylized story, a paradigm, of lender control. When lenders extend credit, the story goes, they insist on the borrower agreeing to strict covenants and granting blanket liens on its assets; then, if the borrower later encounters financial distress, they use their bargained-for rights as prods to steer the company toward a resolution favorable to themselves, whether or not that resolution is value maximizing for the investors as a group. As fruitful as the lender-control heuristic has been, however, it no longer corresponds to reality.

This Article introduces a new interpretive paradigm …


Privacy And/Or Trade, Anupam Chander, Paul M. Schwartz Jan 2023

Privacy And/Or Trade, Anupam Chander, Paul M. Schwartz

University of Chicago Law Review

International privacy and trade law developed together but are now engaged in significant conflict. Current efforts to reconcile the two are likely to fail, and the result for globalization favors the largest international companies able to navigate the regulatory thicket. In a landmark finding, this Article shows that more than sixty countries outside the European Union are now evaluating whether foreign countries have privacy laws that are adequate to receive personal data. This core test for deciding on the permissibility of global data exchanges is currently applied in a nonuniform fashion with ominous results for the data flows that power …


Stakeholderism Silo Busting, Aneil Kovvali Jan 2023

Stakeholderism Silo Busting, Aneil Kovvali

University of Chicago Law Review

No abstract provided.


The Independent State Legislature Theory, Federal Courts, And State Law, Carolyn Shapiro Jan 2023

The Independent State Legislature Theory, Federal Courts, And State Law, Carolyn Shapiro

University of Chicago Law Review

During the litigation surrounding the 2020 election, the independent state legislature theory (ISLT) emerged as a potentially crucial factor in the presidential election. The ISLT rests on the Electors and Elections Clauses of the Constitution, which assign decisions about federal elections to state legislatures. Proponents of the ISLT, including Supreme Court Justices, assert that state constitutions’ substantive provisions cannot apply to state election laws governing federal elections; that state courts’ statutory interpretations of such laws must be rigidly textualist and are reviewable, apparently de novo, by federal courts; and/or that delegations of decisionmaking authority to nonlegislative bodies may be limited, …


The Unbounded Home: Property Values Beyond Property Lines, Lee Anne Fennell Jan 2023

The Unbounded Home: Property Values Beyond Property Lines, Lee Anne Fennell

Books

No abstract provided.


Buddhism And Comparative Constitutional Law, Tom Ginsburg, Benjamin Schonthal Jan 2023

Buddhism And Comparative Constitutional Law, Tom Ginsburg, Benjamin Schonthal

Books

No abstract provided.


Real-World Prior Art, Jonathan S. Masur, Lisa Larrimore Ouellette Jan 2023

Real-World Prior Art, Jonathan S. Masur, Lisa Larrimore Ouellette

Coase-Sandor Working Paper Series in Law and Economics

The most fundamental requirement of patent law is that a patented invention must be new. Given the longstanding, foundational nature of this novelty requirement, one might expect its contours to be well settled. And yet some of its most basic aspects remain unresolved. At the center of these unresolved issues lie what we term “real-world prior art.” In patent law, prior art is something that predates an invention and may render it not new. “Real-world” prior art activities involve using or selling real-world embodiments of the invention. Consider a few examples. Suppose Aleida demonstrates her invention to members of the …


Constrained Income Redistribution And Inequality: Legal Rules Compared To Taxes And Transfers, David A. Weisbach Jan 2023

Constrained Income Redistribution And Inequality: Legal Rules Compared To Taxes And Transfers, David A. Weisbach

Coase-Sandor Working Paper Series in Law and Economics

A widely accepted result, associated with Louis Kaplow and Steve Shavell, is that it is more costly to use legal rules to redistribute income than to use the tax and transfer system (the income-tax only result). An assumption behind this result is that if a legal rule is changed to eliminate its income-redistributive effects, the tax and transfer system can be adjusted to counteract the effects of those changes on the distribution of income. A number of commentators have questioned this assumption, suggesting that political constraints may limit the ability of the tax and transfer system to adjust to changes …


Overview Of The Characteristics Of Tax Havens, Dhammika Dharmapala Jan 2023

Overview Of The Characteristics Of Tax Havens, Dhammika Dharmapala

Coase-Sandor Working Paper Series in Law and Economics

Tax havens have become a subject of great interest among policymakers, scholars and the general public, and are central to many important current policy debates. This chapter provides an overview of the scholarly literature on the characteristics and origins of tax havens. The earlier literature, used cross-country analysis and found evidence that tax havens tend to have stronger governance institutions than comparable nonhaven countries. The more recent literature analyzes the historical origins of tax havens and undertakes longitudinal analysis of their adoption of haven-like laws. This chapter also presents a descriptive analysis of the relationship between tax haven status and …


Trade, Leakage, And The Design Of A Carbon Tax, David A. Weisbach, Samuel S. Kortum, Michael Wang, Bella Yao Jan 2023

Trade, Leakage, And The Design Of A Carbon Tax, David A. Weisbach, Samuel S. Kortum, Michael Wang, Bella Yao

Coase-Sandor Working Paper Series in Law and Economics

Climate policies vary widely across countries, with some countries imposing stringent emissions policies and others doing very little. When climate policies vary across countries, energy-intensive industries have an incentive to relocate to places with few or no emissions restrictions, an effect known as leakage. Relocated industries would continue to pollute but would be operating in a less desirable location. We consider solutions to the leakage problem in a simple setting where one region of the world imposes a climate policy and the rest of the world is passive. We solve the model analytically and also calibrate and simulate the model. …


Residents Against Housing, Lee Anne Fennell Jan 2023

Residents Against Housing, Lee Anne Fennell

Coase-Sandor Working Paper Series in Law and Economics

Incumbent residents routinely oppose residential development.1 Interestingly, this is true of both homeowners and renters, if for opposite reasons. Homeowners typically worry that new housing will cause the market value of their own homes to fall, resulting in a hit to what is usually a house-heavy personal wealth portfolio.2 Tenants typically worry that new housing will cause the market value of their own homes to rise, generating pressure toward higher rents and displacement.3 Both homeowners and tenants also express concern that new housing development will change the character of their neighborhoods in unwanted ways.4

Resident opposition …


Against Anti-Tax Exceptionalism, David A. Weisbach Jan 2023

Against Anti-Tax Exceptionalism, David A. Weisbach

Coase-Sandor Working Paper Series in Law and Economics

This paper examines the arguments found in what has become known as the anti-tax exceptionalism literature. That literature seeks to apply the rules of administrative law to tax procedures. The core claim is that the procedures used by the Internal Revenue Service and the Treasury routinely violate the requirements of administrative law. Secondarily, that literature argues that this is normatively bad: the Treasury and Internal Revenue Service should not be treated differently from other administrative agencies because the tax system is not exceptional. Promoting the goals of administrative law, that literature argues, requires that the tax system conform to standard …


Does Esg Crowd Out Support For Government Regulation?, Hajin Kim, Joshua Macey, Kristen Underhill Jan 2023

Does Esg Crowd Out Support For Government Regulation?, Hajin Kim, Joshua Macey, Kristen Underhill

Coase-Sandor Working Paper Series in Law and Economics

Do voluntary corporate prosocial efforts reduce or amplify support for government regulation? We build a theory of opposing mechanisms. Voluntary efforts could make it seem like the problem is being fixed (“Coca-Cola is already tackling plastic waste!”) and thus that regulation is unnecessary. Or they could make the problem seem more important (“even Walmart is addressing this”) or regulation more feasible (“regulation will not impose excessive costs on industry”). Because these factors move in opposing directions, we posit that any crowding-in or crowding-out effects will be small and context-dependent. To test our theory, we ran two preregistered, randomized controlled studies …


The (Mis)Uses Of The S&P 500, Adriana Z. Robertson Jan 2023

The (Mis)Uses Of The S&P 500, Adriana Z. Robertson

The University of Chicago Business Law Review

The S&P 500 is widely used to (i) direct capital through “passive” investing, (ii) benchmark investment portfolios, and (iii) evaluate firm performance. The securities regulatory regime’s approach to each of these uses is fundamentally flawed. I show that the index is neither neutral nor constant: it represents substantial amounts of discretionary decision-making and is simply one particular large-cap portfolio. I then argue that an “S&P 500 fund” is not meaningfully passive, the mutual fund prospectus benchmark requirement is flawed, and the requirement that index constituents compare their performance to that of the index is nonsensical. I propose regulatory changes to …


Antitrust Reform In The Digital Era: A Skeptical Perspective, Robert W. Crandall, Thomas W. Hazlett Jan 2023

Antitrust Reform In The Digital Era: A Skeptical Perspective, Robert W. Crandall, Thomas W. Hazlett

The University of Chicago Business Law Review

The rise of large digital platforms, accompanied by claims of increasing industrial concentration, has prompted calls for antitrust policy reform. Yet, the observed market trends are consistent with improvements in welfare, as economies of scale often decentralize effective choices and disintermediate previously dominant structures, unleashing entrepreneurship. Evidence of deleterious impacts from the rise of the leading platforms—via mergers, predation, vertical foreclosure, and tying practices— is scant. The difficulty in amassing such evidence is implied in the argument that antitrust enforcement should no longer be focused on estimating consumer welfare impacts using traditional price theory. Recommendations for the creation of an …


The Commission Goes To Walmart: Changing Patterns Of Ftc Enforcement, Jed Greenberg Jan 2023

The Commission Goes To Walmart: Changing Patterns Of Ftc Enforcement, Jed Greenberg

The University of Chicago Business Law Review

The FTC Act allows the FTC to recover monetary relief only in certain circumstances. Under Sections 5 and 19, the Commission can recover monetary relief in federal court by showing that a party violated a final cease and desist order issued through administrative processes. Until recently, the FTC extensively used Section 13 of the Act, which courts had interpreted to provide some pathways to monetary relief. But the Supreme Court recently ruled in AMG that Section 13 only permits injunctive, rather than monetary, relief. After the case had been decided, many, including the FTC chair, predicted that this would erode …


A Disclosure Gap In The Market For Order, Joshua Nathanson Jan 2023

A Disclosure Gap In The Market For Order, Joshua Nathanson

The University of Chicago Business Law Review

Wholesalers in U.S. equity markets are once again a focus of the SEC and scholarly debate. In this Comment, building on the empirical work of Schwarz, et. al. (2022), I present a model of the broker-wholesaler relationship based on the duty of best execution under FINRA Rule 5310 and the antifraud provisions of the federal securities laws as well as public disclosures by brokers and wholesalers. I suggest that the arrangement between a broker and a wholesaler on any given day is determined by the technology of the wholesaler, the likelihood of adverse selection, and the overall strategy of the …


The Chinese Antitrust Paradox, Wentong Zheng Jan 2023

The Chinese Antitrust Paradox, Wentong Zheng

The University of Chicago Business Law Review

Antitrust law faces a fundamental paradox between protecting competition and protecting competitors. This paradox is more structurally durable in China than in Western societies thanks to the oversized role of the Chinese state in its economy. This Article examines the changing market conditions in China following the adoption of China’s Antimonopoly Law (AML), and how these changes have led to paradoxical developments in Chinese antitrust. In a number of areas relating to enforcement authorities, transparency, courts, State-Owned Enterprises, cartels, internet platforms, and foreign companies, the tensions between protecting competition and protecting competitors have persisted or even deepened in the post-AML …