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TOTM We all know that our securities regulatory regime is predominantly a disclosure regime, meaning the regulators, for the most part, don’t impose substantive regulations on . . .
We all know that our securities regulatory regime is predominantly a disclosure regime, meaning the regulators, for the most part, don’t impose substantive regulations on securities issuers, but require only accurate, timely disclosure of certain information. And as against a more intrusive, substantive regime, I think this is preferable, even in its current, fairly intrusive form. But too often disclosure is presumed by commentators (and regulators) to be fairly costless — meaning that, even if it doesn’t do what it’s supposed to do, it imposes no great cost, and if it succeeds it does so quite cheaply. This is what Larry means when he refers to regulations as “chicken soup.” I think this presumption is often under-supported.
Read the full piece here.
TOTM A few weeks back, Josh had a nice post (on Ideoblog) regarding Judge Alito’s antitrust record. He was pretty optimistic, dismissing Judge Alito’s antitrust critics . . .
A few weeks back, Josh had a nice post (on Ideoblog) regarding Judge Alito’s antitrust record. He was pretty optimistic, dismissing Judge Alito’s antitrust critics and concluding that “what little Judge Alito has written on antitrust issues is properly described as fastidious analysis complemented by strict application of doctrine.”
TOTM I’m no expert on the topic (I anxiously await Randy Barnett’s comments), but does anyone else think the opinion in Gonzales v. Oregon issued today . . .
I’m no expert on the topic (I anxiously await Randy Barnett’s comments), but does anyone else think the opinion in Gonzales v. Oregon issued today (limiting the application of the Controlled Substances Act and upholding Oregon’s assisted suicide law) could have been a masterful dissent in Gonzales v. Raich (reading the Controlled Substances Act to preclude the legal use of medical marijuana). I’m getting my information from SCOTUSblog (as good as the Court itself, and edited, too!), so keep that in mind, but just read these sentences from SCOTUSblog describing the case:
TOTM I didn’t pick the name of this weblog, but I really like it. It encapsulates, I believe, much of what the blogosphere is about. Read . . .
I didn’t pick the name of this weblog, but I really like it. It encapsulates, I believe, much of what the blogosphere is about.
TOTM It is a pretty exciting time in the antitrust world. This, of course, is bad news for firms. SCOTUS will decide three antitrust cases this . . .
It is a pretty exciting time in the antitrust world. This, of course, is bad news for firms. SCOTUS will decide three antitrust cases this term, each offering a promising opportunity to clarify murky doctrine or undo an erroneous application of relatively clear antitrust principles. Texaco v Dagher falls into the latter category. The bulk of the commentary I’ve seen has been critical. For example, Christine Hurt at the Glom describes the plaintiff’s theory “somewhat strained.” Ron Davis goes a bit further, describing Dagher as “The Worst Antitrust Case of the 21st Century.” That is saying something. Yet, given the impact of the decision on integrative activity if affirmed, I’m inclined to agree.
Scholarship In this short essay, we take on some of the common claims surrounding the law and economics of the backdating of options. Most of these claims are rooted in the basic argument that backdating options amounts to concealment of compensation.
In this short essay, we take on some of the common claims surrounding the law and economics of the backdating of options. Most of these claims are rooted in the basic argument that backdating options amounts to concealment of compensation. While we agree that backdating may have amounted to a technical rule violation in some cases, there is actually no concealment and, in fact, backdated options are fully disclosed when granted, and their value incorporated into stock price. We also challenge a few other myths surrounding the practice of backdating options.
Scholarship Abstract Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite the dynamic effects of paternalistic policies. . . .
Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite the dynamic effects of paternalistic policies. In this article, we consider how paternalistic policies fare under a dynamic account of decision-making that incorporates learning and motivation effects. This approach brings out two important limitations on the efficiency effects of paternalistic regulations. First, if preferences and biases are endogenous to institutional forces, paternalistic government regulations may perpetuate and even magnify a given bias and cause other adverse psychological effects. Second, for some biases, it will be more efficient to invest resources in debiasing than to change legal rights and remedies or, in some cases, to do nothing in light of the natural variation in irrational propensities. We propose dynamic models for determining ex ante and ex post when accommodation of bias will be second-best efficient. These models direct decision-makers to consider (1) the efficiency cost of the bias; (2) the extent to which accommodation worsens the bias or, alternatively, the extent to which non-accommodation improves the bias or has other benefits; and (3) the potential for education or other mechanisms to debias an individual. We argue that the concept of “cognitive hazard” – the potential for the costs of a bias to increase as individuals are insulated from the adverse effects of the bias – should be added to the concept of moral hazard as important qualifications to paternalistic proposals.
Scholarship Abstract The legality of nonprice vertical practices in the U.S. is determined by their likely competitive effects. An optimal enforcement rule combines evidence with theory . . .
The legality of nonprice vertical practices in the U.S. is determined by their likely competitive effects. An optimal enforcement rule combines evidence with theory to update prior beliefs, and specifies a decision that minimizes the expected loss. Because the welfare effects of vertical practices are theoretically ambiguous, optimal decisions depend heavily on prior beliefs, which should be guided by empirical evidence. Empirically, vertical restraints appear to reduce price and/or increase output. Thus, absent a good natural experiment to evaluate a particular restraint’s effect, an optimal policy places a heavy burden on plaintiffs to show that a restraint is anticompetitive
Scholarship In this article we examine the use of business documents to prove antitrust violations. Such usage has long occurred in the courts and regulatory agencies. More recently, there has been a scholarly effort to justify the use of such documents and the rhetoric they contain in antitrust analysis.
This Article considers the implications for antitrust law and policy of the relationship between business rhetoric and economic analysis. We maintain that antitrust analysis should remain firmly rooted in economics and that courts must be wary of the role of business rhetoric in antitrust analysis and adjudication. This is not to say that “market realities” reflected in business documents and testimony should not be considered in antitrust cases. Rather, courts and policy makers should recognize the distinction between the market realities themselves and expressions or characterizations of those realities for legally irrelevant business purposes. An important implication is that regulators’ and courts’ reliance on business documents is misplaced, and much of this material should be excluded from consideration by courts.
