Truth on the Market

Academic commentary on law, business, economics and more

Archive for October, 2006

Wal-Mart: Alleviating Poverty Abroad, Lowering Prices at Home

Posted by Thom Lambert on October 17, 2006

Those of us who defend the right to outsource are frequently criticized for lacking compassion and for being concerned only with the bottom line. I’ll admit that profitability concerns generally motivate decisions to outsource (and most other business decisions), but I won’t concede that outsourcing imposes a net harm on the economically disadvantaged. If we’re really concerned with alleviating the worst instances of poverty and are not focused only on protecting our own kind, we should support the right to outsource.

John Tierney makes this point in today’s NYT. Echoing comments of Michael Strong, the head of “a nonprofit group promoting entrepreneurship abroad,” Tierney observes that the evilest outsourcer of them all — Wal-Mart — can rightly claim to have done more than just about anyone else to alleviate the suffering of the poor:

Making toys or shoes for Wal-Mart in a Chinese or Latin American factory may sound like hell to American college students — and some factories should treat their workers much better, as Strong readily concedes. But there are good reasons that villagers will move hundreds of miles for a job.

Most “sweatshop� jobs — even ones paying just $2 per day — provide enough to lift a worker above the poverty level, and often far above it, according to a study of 10 Asian and Latin American countries by Benjamin Powell and David Skarbek. In Honduras, the economists note, the average apparel worker makes $13 a day, while nearly half the population makes less than $2 a day.

[NOTE: Powell and Skarbek discuss their study here.]

This is not to say, of course, that there are no “victims” of outsourcing. Some Americans lose their jobs. Others find they can’t command as much for their services because of cheap foreign labor.

Yet, that cheap foreign labor produces benefits at home — lower prices. Moreover, Wal-Mart’s job offerings are routinely oversubscribed (there are typically around ten applicants per open position — sometimes many more), suggesting that lots of workers think the jobs aren’t that bad.

This is not enough for many Wal-Mart critics, who maintain that consumer savings don’t justify the economic dislocation caused by Wal-Mart’s cost-cutting and, as Tierney explains, would “rather see Wal-Mart and other retailers paying higher wages to their employees, and selling more products made by Americans instead of foreigners.”

That position, though, is ethically suspect. In Tierney’s words:

[T]his argument makes moral sense only if your overriding concern is saving the jobs and protecting the salaries of American workers who are already far better off than most of the planet’s population. If you’re committed to Bono’s vision of “making poverty history,� shouldn’t you take a less parochial view? Shouldn’t you be more worried about villagers overseas subsisting on a dollar a day?

Indeed.

Posted in business, economics, international trade, markets | 4 Comments »

Bainbridge Rebrands

Posted by Josh Wright on October 17, 2006

Prof. Bainbridge has announced that it is time to shift from a general interest, punditry-style blog to a more narrow focus on issues of business law and economics:

I plan to be more active over at Mirror of Justice, where I’ll blog about Catholic issues. And I may look around for a group blog to join for occasional pundity posts. But as far as day-to-day blogging goes, I’ve pretty much decided to rebrand ProfessorBainbridge.com by repositioning it as what it started out to be; namely, a niche blog focused on business law and economics. So I’ll be taking a brief hiatus while I start the rebranding process.

While I’m sure that many of Prof B’s readers will be disappointed from Steve’s exit from the punditry-style blogging game, this is an exciting development for the world of business law and economics blogging. The more” Blog Juice” devoted to these issues the better, right? I look forward to seeing the fruits of his rebranding efforts, and to future discussions of business and economics developments in the blogosphere.

Posted in announcements, blogging, business, economics | Comments Off

Google, Net Neutrality, and Antitrust

Posted by Josh Wright on October 16, 2006

Hanno Kaiser at Antitrust Review discusses the implications of Google’s acquisition of YouTube for the net neutrality debate. Hanno opines that the deal may increase the likelihood of a neutrality result even without legislation. While Google’s public pro-neutrality stance is well known, GMU’s Tom Hazlett (my office neighbor and fellow UCLA Economics alum) has a great column in the Financial Times highlighting the difference between Google’s “public policy” stance on net neutrality and its business model. Here’s Hazlett on Google’s now well-known position on net neutrality legislation:

The company became the leading champion of the hottest topic in technology policy over the past year, asserting that if web innovation such as theirs was to be retained, new laws were warranted. The specific fear was that internet service providers delivering last-mile broadband would shift their pricing strategies, charging not only end users for their connections but application vendors (say, search engines) for access to their customers. Worse, they might move into content and then favour their own web products over those of competitors. “Network neutrality� rules were needed, Google argued, because the architecture of the internet demanded it. That structure relies on traffic flowing freely over a network that is “open, end to end�.

But Hazlett points out that Google’s business model sends a different message — to the benefit of investors and consumers:

The internet lurches forward in spasms of business model discovery, as when Google figured out how to auction off search-targeted advertising slots, leaving banner advertisements behind. Today, Google’s absorption of its little video cousin is part of this jockeying for positions of competitive superiority. The internet really is not open – if, as Google hopes, it is doing it right.

Google has been doing it flawlessly – forging exclusive bargains nonpareil. Mr Vise [ed. -- author of "The Google Story"] declares the watershed business event in the company’s history to have occurred on May 1 2002 when its search engine was licensed to AOL. “Web properties that connected more than 34m subscribers . . . had a small search box on every page that said, ‘Search Powered by Google.’� To land this deal, Google extended to “AOL a very large financial guarantee�, including stock options. An ISP getting paid to feature a favoured search engine? What net neutrality would presumably end is what helped launch Google.

Very interesting. The Google story reinforces an important economic lesson that exclusive contracts are frequently part of the normal competitive process. Go read it.

I am becoming increasingly interested in the antitrust-related components of the net neutrality debate, and have heard the argument that antitrust law isn’t sufficient to handle the competitive problems implicated in this space. Specifically, I have read and heard the claim that Trinko renders Section 2 enforcement impotent to deal with the harm caused by these types of contracts. As I understand it, the primary competitive concern is the use of exclusive or exclusionary contracts (or exclusion of rivals via vertical integration) to the detriment of consumers. In other words, this is a conventional “raising rivals’ cost” story. Assuming this is an accurate characterization of the competitive argument for neutrality, there is much to be said for Section 2 enforcement here if it is agreed (and I have no reason to believe otherwise) that consumer welfare is the appropriate standard for evaluating potential restrictions on these types of contracts.

One obvious point is that the antitrust is designed to identify and distinguish pro-competitive from anticompetitive contracting. Agencies and courts have been doing this for a long time. There is hundreds of years of common law and agency expertise involved in tackling this tough problem. Obviously, antitrust enforcement is not perfect. And Section 2 is arguably the source of the most lively existing debate between antitrust scholars. But this is precisely because this task is so difficult. I’m skeptical that would-be neutrality legislation offers a superior alternative.

A second point is that the content of antitrust law imposes sensible boundary conditions on enforcement efforts. For instance, the firm making use of these contracts must have monopoly power in order to establish an antitrust claim. This is a critical boundary on limitations on exclusive contracting since we know that firms without market power frequently engage in these types of contracts, which are part of the normal competitive process. It is important for consumer welfare that we not chill this form of competition.

A related, are more pertinent point in this setting, is that antitrust law also requires that the contracts generate an anticompetitive effect. Because many exclusive contracts are pro-competitive, liability under Section 2 sensibly requires that plaintiffs demonstrate an anticompetitive effect. There are other conditions, but these two suffice to make the point for my purposes. While there are conditions under which exclusive contracts may harm competition, the conditions are narrow and sometimes difficult to distinguish from the normal competitive process. This is why the anticompetitive effect requirement is such an important component of enforcement efforts.

To be clear, I’m not suggesting there are no sensible reasons why neutrality advocates might prefer neutrality legislation to Section 2 jurisprudence (and specifically, Trinko). But my sense of the neutrality debate is that there has been insufficient attention paid to the role of exclusive and exclusionary contracts in the competitive process, as evidenced by Google’s AOL deal among many others in the same space, and harm to consumers sure to follow from a rule that prohibits these contracts. Economists have identified the necessary conditions for competitive harm via exclusionary contracts. The limitations offered by Section 2 enforcement are offered to enhance consumer welfare by ensuring that enforcement does not deter pro-competitive conduct. To my knowledge, and I readily admit that I am relying on descriptions of the legislation I have read, the proposed neutrality legislation is not concerned with these types of limitations and thus appears only to be interested “cheap talk” about enhancing consumer welfare.

Posted in antitrust, contracts, economics, google, regulation, technology | 11 Comments »

I'm About to Get More Productive …

Posted by Josh Wright on October 15, 2006

The Unlawful Internet Gambling Enforcement Act of 2006 era has begun. Today, the first part of my online poker and football watching research and writing weekend was interrupted with this message on my computer screen:

The President of the United States has signed legislation that now causes PartyGaming to have to cease taking wagers from US customers. We will also suspend accepting deposits from US customers while we reevaluate our business model for the US and assess potential offerings to US customers that would be within the new law. This will not affect the Play For Free games and we will be seeking to provide additional products and services to our US player community. Non-US players and all Play For Free services will not be affected.

As Tom Bell notes, the Act excludes certain forms of intrastate, intratribal, or interstate horseracing gambling and cannot reach overseas financial services intermediaries (though Firepay will not currently allow payments by U.S. consumers for online gambling merchants). Ultimately, legal alternatives are likely to emerge to satisfy U.S. consumers.  In addition to Tom Bell’s post, Christine Hurt has been covering this legislation from the start (for example, here and here).

Posted in markets, musings, regulation, technology | Comments Off

Who's Got Blog Juice?

Posted by Josh Wright on October 14, 2006

Paul Caron reports on scores using the “Blog Juice” calculator for a few of his favorite law blogs. “Juice,” apparently, refers to an Index score combining Bloglines subscribers (40%), Alexa rank (15%), Technorati ranking (30%), and the count of inbound Technorati links (15%). The Juice Index is not a very good measure of “Juice,” see e.g., Solum and Ribstein’s low rankings. Paul does not report a score for TOTM, but I checked anyway because … well, rankings are fun. TOTM scores a 3.8 (as does, for example, WSJ Law Blog). Not bad for a blog yet to celebrate its first birthday (this January). Thanks for reading.

Posted in blogging, truth on the market, universities | Comments Off

Cablevision Buyout

Posted by Bill Sjostrom on October 14, 2006

Last week the Dolan family announced an offer to take Cablevision private. The family owns 22.5% of Cablevision’s common stock. However, Cablevision has a dual capitalization consisting of one-vote-per-share Class A stock (which trades on the NYSE) and ten-vote-per-share Class B Stock (which is not publicly traded). The Dolan family owns all of the Class B stock and thus controls 74% of the voting power which means Cablevision falls under the NYSE definition of “controlled company.” The NYSE allows controlled companies to opt-out of various corporate governance listing standards so Cablevision has opted not to have a majority of independent directors on its board or an independent corporate governance and nominating committee. Charles Dolan is chairman of the board and his son James Dolan is CEO, president and a director.

In a letter filed with the SEC, the Dolan family provided the following reasoning for taking Cablevision private:

Our proposal, in addition to providing the public stockholders of the Company with a fair price for — and substantial premium on — their equity, will ensure the Company has the flexibility to meet the challenges of intensifying competition and the risk of new entrants in the years to come. We continue to feel that succeeding in this fiercely competitive environment requires a long-term, entrepreneurial management perspective that is not constrained by the public markets’ constant focus on short-term results. We are convinced that private ownership is highly desirable, and we are willing to assume the risks of full ownership and additional leverage to ensure that the Company has the structure and flexibility it needs to continue to grow.

This short-termism argument is a common justification for a going private transaction. The thinking goes that because the majority of shares of most public corporations are owned by institutional investors who generally focus on short-term performance, to keep this shareholder base happy, management will likewise adopt a short-term focus to the detriment of the corporation’s long-term success. In the Cablevision context, however, this argument strikes me as ludicrous. The Dolans control the company and are therefore free to take a long-term view without fear of shareholders pushing them out. Yes, a long-term focus may hurt the stock in the short-term making equity financing more expensive, employee options less valuable, etc. But this could not be a big concern for the Dolans because if they go private, by definition, there will be no public market for Cablevision’s equity anyway. The likely true justification is that the Dolans have superior information about Cablevisions prospects and believe the market is undervaluing its stock. Of course, they can’t say this. Why didn’t they just blame it on SOX? Or how about disclosure requirements force us to tip our hand on strategy?

The Dolan family offer will be considered by a two person special committee (Cablevision has only two independent directors). The committee has not made a decision yet but that hasn’t stopped an enterprising plaintiffs firm from filing a class action suit challenging the deal (see here). This seems a bit premature to me but as they say the early bird gets the worm.

Posted in corporate governance, mergers & acquisitions | Comments Off

SSRN Top Tens for Corporate, Corporate Governance, and Securities Law

Posted by Bill Sjostrom on October 13, 2006

The current SSRN top tens for corporate, corporate governance, and securities law are after the jump.

Read the rest of this entry »

Posted in SSRN | Comments Off

Conservatives and the Regulation of Higher Education

Posted by Thom Lambert on October 12, 2006

Classical liberals have long derided their conservative cousins for being fairweather friends of small government, but the criticism has been fairly limited. In general, conservatives have embraced limited government on matters of economic regulation and have endorsed governmental meddling only on matters involving so-called “values” issues like broadcast decency and homosexuality. Lately, though, conservatives seem ever more willing to embrace big government on matters that seem more economic than values-oriented.

An op-ed in yesterday’s NYT exemplifies this trend. The op-ed is by Eugene Hickok, a fellow at the conservative Heritage Foundation, which is normally fairly laissez faire on economic matters. Hickok argues that the federal government should exercise more oversight of college curricula.

Hickok contends that the quality of education is declining at colleges, even as the cost of a college education is skyrocketing. He points to studies documenting poor reading comprehension skills and “appalling” levels of civics illiteracy among college graduates. (OK, I’ll confess that I don’t really care whether engineering and chemistry students know how many electoral votes it takes to win a presidential election…but that’s just me.) Hickok endorses efforts by the feds to hold colleges accountable, just as they hold primary and secondary schools accountable under No Child Left Behind.

C’mon.

Can a real conservative honestly claim that federal regulation will do a better job than market competition at preserving (and enhancing) the value of an American college degree? In case Hickok hasn’t noticed, colleges — spurred on by various ratings such as the much maligned U.S. News rankings — are competing tooth-and-nail these days. Sure, colleges make some mistakes (Hickock points to goofball course offerings like the history of comic book art), but when they do, they get punished as their competitors highlight the relative rigor of their own curricula. Schools like St. John’s, the University of Chicago, Columbia, and Hillsdale — all of which emphasize the classics — have benefited as their competitors have dumbed down their curricula. Competitive markets are far more likely than government bureaucrats to guarantee an optimal mix of curricular options.

Oh but shouldn’t the government “help” market processes by requiring colleges to produce the information necessary for consumers to make wise educational choices? Hickok thinks so:

One of No Child Left Behind’s hallmarks is transparency. Today parents know more about the performance of their children’s schools than ever before. This same principle needs to be applied to higher education.

He’s a little bit vague, but it seems Hickok is calling for some kind of standardized achievement tests for colleges. Such testing is, of course, what creates No Child Left Behind’s “transparency.”

One might think that the gazillions of college guides — almost all of which provide detailed data on graduates’ scores on the GRE, LSAT, and MCAT — would provide this sort of information. Hickok, though, thinks this market response is inadequate: “The various college rating systems and publications are entertaining and interesting to read, but they don’t provide the sort of objective data tuition payers need to make informed decisions.” In other words, the government would do a better job of providing relevant information.

Color me skeptical.

The most troubling part of Hickok’s argument is his claim that because college students frequently use federal money to pay for tuition, the feds should exert control over college curricula. This is a dangerous argument for those of us who support vouchers as an alternative to public schools. If students’ use of federal dollars to pay for tuition opens their educational institutions up to federal oversight, then private and parochial schools that accepted federal dollars from poor kids would subject themselves to all sorts of meddling. That possibility might deter private and parochial schools from enrolling voucher students.

Almost certainly, Hickok’s call for greater oversight of college curricula stems, at least in part, from a concern that college faculties and administrations are dominated by folks pushing a left-wing, politically correct, anti-Western viewpoint. In his words, these folks are “seriously out of touch with much of America.” Believe me, I’m sympathetic. But is increased government involvement in curriculum decisions the answer? Hickok might like the curricular reforms the Bush Administration and a Republican Congress might enact, but what happens when the composition of those in charge changes but governmental oversight remains? Might not St. John’s be required to supplement its Great Books curriculum with obscure works outside the Western canon? Is it really government’s business to be making these sorts of decisions to protect adults who have every interest in maximizing the value of their degree? I think not.

Hickok concludes by noting that “Much of the world has come to America to get a higher education. But nothing guarantees that this will be the case in the future.” While he’s technically correct (there are no guarantees — North Korea could blow us all up tomorrow), I’m optimistic. Just as it “guarantees” that our products will be better and cheaper in the future, competition guarantees that top-notch higher education will remain available in America, even without federal oversight.

Posted in economics, markets, regulation, universities | 3 Comments »

Monday Morning Quarterback — Nobel Edition

Posted by Josh Wright on October 9, 2006

I don’t have much to say about this one.  I don’t know much about Edmund Phelps’ work (here’s his CV).  As Geoff commented in response to my erroneous prediction, the award did indeed go to an economist who “has never been in my kitchen,” and thus Geoff will be doing some fine dining on me.  What about the merits of the pick?  Two economists who know a lot more about his work than I like the pick.  Greg Mankiw says “its a wonderful choice.”  Tyler Cowen has a nice summary of Phelps’ work and concludes with the following take:

It is hard to argue with this pick.  It is a good selection.  His 1960s macro work was true, important, and extremely influential.  The capital theory work endures and provides a foundation for subsequent theory.  The overall scope is impressive, and Phelps’s concerns never strayed far from the real world.  But Phelps is not an economist who has influenced my own thinking much if at all.  His major contributions were absorbed, and were standard fare, by the time I was a young’un.  For instance I drunk the same macro milk through the writings of Milton Friedman.  I find him to be a murky writer, and often he is frustrating to read and hard to pin down.  His advocates would characterize him as a “rich” thinker.  What this Prize means: The big questions still matter.  Unemployment, economic growth, labor markets, capital accumulation, fairness, discrimination, and justice across the generations are indeed worthy of economic attention.  Phelps contributed to all of those areas.   Normative questions matter.  Relevance and breadth triumph over narrow technical skill.

If Cowen is right that this picks stands for the triumph of relevance and breadth over narrow technical skill, then I’m happy.   I wasn’t really holding my breath for Alchian, Demsetz or Tullock (though I did wear my lucky UCLA hat for good luck today to no avail).  See ya next year…

Posted in economics, scholarship | Comments Off

Report on 2006 Proxy Season

Posted by Bill Sjostrom on October 9, 2006

The 2006 Postseason Report, an analysis of the 2006 proxy season prepared by ISS, is now available online (see here). As expected, the big issue was majority voting for the election of directors. According to the report, more that 180 U.S. companies adopted some type of election reform. Most of these companies, however, followed the Pfizer approach and adopted a modified plurality standard described in this post, but at least 40 companies did adopt a true majority voting standard.

Shareholder proposals to install a majority voting standard were voted on at 84 companies during the first half of 2006. These proposals received shareholder support of 47.7% on average. As of August, 36 of these proposals received more than 50% support (13 did so last year). Interestingly, most of the companies at which the proposal received low levels of support had a modified plurality system in place, and most of the companies where the proposals secured more than 50% support did not. Hence, it looks like the pre-emptive strike approach works, i.e., voluntariyly adopting the less onerous (from managements’ perspective) modified plurality to avoid having shareholders force the adoption of majority voting.

Posted in corporate governance | Comments Off

 
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