Antitrust\u27s Curse of Bigness Problem

Review of Tim Wu\u27s The Curse of Bigness: Antitrust in the New Gilded Age

Globalization of Law Firms: A Survey of the Literature and a Research Agenda for Further Study

The international expansion of law firms plays a critical role in understanding the business of law and the nature of globalization. This article responds to two articles on law firm expansion in the Indiana University - Bloomington Law School symposium on the Globalization of the Legal Profession. The article utilizes management studies\u27 theoretical work on internationalization and applies it to law firm expansion to explain law firm strategic decision-making. The author creates a six part taxonomy for types of law firm expansion and provides a snapshot of the increasing U.S./U.K. dominance of capital markets, corporate and mergers and acquisitions legal work around the world. Finally, the article proposes an interdisciplinary research agenda that incorporates law, economics, sociology, economic geography, and management studies to better understand law firm expansion

Policing the Firm

Criminal price fixing cartels are a serious problem for consumers. Cartels are hard both to find and punish. Research into other kinds of corporate wrongdoing suggests that enforcers should pay increased attention to incentives within the firm to deter wrongdoing. Thus far, antitrust scholarship and policy have ignored this insight in the cartel context. This Article suggests how to improve antitrust enforcement by focusing enforcement efforts on changing the incentives of internal firm compliance

Antitrust, Institutions, and Merger Control

This Article makes two primary contributions to the antitrust literature. First, it identifies the dynamic interrelationship across antitrust institutions. Second, it provides new empirical evidence from practitioner surveys to explore how the dynamic institutional interrelationship plays out in the area of merger control. This Article provides a descriptive, analytical overview of the various institutions to better frame the larger institutional interrelations for a comparative institutional analysis. In the next Part it examines mergers as a case study of how one might apply antitrust institutional analysis across these different kinds and levels of antitrust institutions. The Article utilizes both quantitative and qualitative methods based on survey data of antitrust practitioners on merger issues to better understand institutional choice and the decision-making process. The surveys reveal results that run counter to the popular antitrust discourse about the level of merger enforcement under Bush. Slightly more than half of all practitioners surveyed found no change in merger enforcement under Bush in their own practice and the vast majority of the rest found a change in enforcement to be merely at the margins. The Article concludes with observations from the case study and appeals for more theoretical and empirical work in antitrust institutional analysis

Law and Development: The Way Forward or Just Stuck in the Same Place?

This Essay does three things. First, it provides an overview of Law and Development issues. Second, it responds to other pieces in the symposium The Future of Law and Development . Third, it suggests that to measure success, Law and Development needs clearer goals

Merger Control under China\u27s Anti-Monopoly Law

This essay explores the factors that drive merger outcomes under China\u27s Anti-Monopoly Law (AML). While there are currently only a small number of published merger decisions, this paper overcomes that obstacle by utilizing a unique practitioner survey of antitrust lawyers across multiple jurisdictions. This survey captures transactions contemplated, but never undertaken (deterred by the merger regime), as well as mergers notified for approval under the AML. The survey allows for broader inferences to be drawn about the development of Chinese antitrust law, including: the welfare standard used in merger analysis, what industrial policy and other political factors may impact merger enforcement, and issues of institutional design, transparency, and delay. The survey has implications for antitrust, institutional design, intellectual property rights, and business law more generally

Antitrust\u27s Curse of Bigness Problem

Tim Wu’s most recent book, The Curse of Bigness: Antitrust in the Gilded Age, is an attempt to reframe contemporary antitrust debates by returning antitrust to its more populist roots. Given the global implications of his ideas and policy proposals (including breakup of tech platforms) for many of the large corporations that he takes on, The Curse of Bigness offers profound insights for how society and business should be organized. The first part of this Review summarizes Wu’s major claims. It then highlights some of his critiques as to “bigness,” the multiple goals of antitrust, and the missed opportunities as to cases that should have been or need to be brought, such as against tech companies. Some of Wu’s critiques are spot on in identifying missed opportunities, like a number of horizontal mergers that should have been challenged. Where Wu’s book suffers is where he undervalues the institutional structure of antitrust law, underplays what antitrust does well as a substantive matter, and misanalyzes antitrust and tech platforms

Teaching Compliance

Compliance is a growing field of practice across multiple areas of law. Increasingly companies put compliance risk among the most important corporate governance issues facing them. Moreover, as “JD plus” jobs proliferate, the demand for hiring both at the entry level and for former students currently in practice who are experienced in the compliance field will continue to grow. The growth in compliance jobs comes at a time in shifting demand for legal jobs for law school graduates. Traditional law firm entry level jobs at large law firms, which were the staple of on campus recruiting before 2007, have not returned to pre-2007 levels even with the end of the recession. Technological changes, greater in-house hiring, and better creation of efficiencies have reduced demand for large law firms, which were the traditional training ground for in-depth legal skills and soft skills.Law schools have responded to the demand shift in entry level hiring with a supply side response – classes in compliance. In some cases, law schools have set up compliance certificates or degrees in areas such as health care and business law. There is now even a casebook devoted to compliance. Yet, with all of these efforts at creating opportunities for careers in compliance, many programs and classes in compliance are nothing other than dressed up versions of classes in white collar crime or regulation or lectures on latest case developments that one might find in a continuing legal education program. These courses do not focus on the substantive areas needs practice with the highest demand for compliance (in-house legal and JD plus jobs) and do not teach the analytical skills necessary to succeed in such jobs. Nor do they focus on the special context within which compliance operates – ideally independent of the “business” but always a part of it. Essentially, law schools have misdiagnosed the demand side – it is not merely the particular type of class (compliance) but also the substance of such classes with the type of quality offering necessary to maximize student short term (entry level hiring) and long term (preparation for ever-shifting analytically complex practice challenges).This Essay suggests an alternative approach to teaching compliance – one that focuses on the design and implementation of compliance programs. The Essay explores the determinants of why teaching compliance is important, the pitfalls of current approaches and the types of teaching innovations that sophisticated compliance practice requires. First, it explains what compliance is. Then, it explains the basis for the current economic drivers of the increased focus on compliance by firms. Next, it identifies the drivers of illegality before explaining how law school and in-house compliance training might be better structured in both analytical approach and substance. Finally, the Essay concludes with some thoughts about issues in compliance in which courses might place greater emphasis

Order without (Enforceable) Law: Why Countries Enter into Non-Enforceable Competition Policy Chapters in Free Trade Agreements

There has been an explosion in the past ten to fifteen years of bilateral and regional free trade agreements in Latin America (together, preferential free trade agreements or PTAs). The purpose of PTAs is to increase trade, regulatory, and investment liberalization. As trade liberalization requires more than just a reduction of tariffs, PTAs include chapters in a number of areas of domestic regulation. These chapters that address domestic regulation create binding commitments to liberalize domestic regulation that may impact foreign trade. Among chapters that address domestic regulation, many of the Latin American PTAs include a chapter on antitrust or competition policy. Until now, the effectiveness of such chapters has remained undefined. This article undertakes the first empirical analysis of Latin American antitrust or competition policy chapters in PTAs. To understand the dynamics of PTAs, this article begins with some context of Latin American development. First, the article provides an overview of the process of liberalization in Latin America. It then describes how domestic antitrust fits within Latin American liberalization. The article describes competition policy chapters within Latin American PTAs based on the results of coding these provisions. The standard practice in PTAs is to create binding commitments that have third-party adjudication for potential disputes. The choice of binding international institutions, such as PTAs, is based on the perception of the relative strength of PTAs over purely domestic approaches. A comparison of the institutional alternatives to PTAs illustrates that this perception is not born out by the facts. This article finds that antitrust chapters within PTAs go against the standard practice of binding commitments. Competition policy chapters, unlike other chapters of the same trade agreement, lack binding dispute settlement. All Latin American PTAs lack dispute settlement for core antitrust issues of mergers, collusive agreements, and monopolization within the competition policy chapters. This departure from the standard PTA practice is more striking given that other chapters in the same trade agreement have binding dispute resolution. These other chapters include some competition element to them, such as services and intellectual property. The remainder of the paper explores the dynamics of these chapters, including why PTAs treat antitrust differently from other areas of domestic regulation