Truth on the Market

Academic commentary on law, business, economics and more

Archive for June, 2008

Commisioner Troy Paredes

Posted by Geoffrey Manne on June 30, 2008

Only the formality of full Senate confirmation stands between Troy Paredes and the SEC following unanimous approval from the Senate Banking Committee.  Congratulations, Troy.

UPDATE:  [Someone claiming to be] Chairman Cox points out in the comments that Troy was in fact confirmed by the full Senate last week.  Indeed, it is true.  Not much fanfare, but a great development, nonetheless.

Posted in politics, securities regulation | 1 Comment »

Austin Bound

Posted by Josh Wright on June 29, 2008

My tour of duty as the FTC Scholar in Residence came to an end this past week.  It was a fantastic opportunity for a junior scholar that I am grateful to have had.  Plus, I couldn’t have picked a more interesting year to be at the Commission.  Anyway, I’ll have more to say about all of that later.  For now, I’ll be leaving Arlington tomorrow afternoon for a few weeks of vacation before heading off to Austin where I am very excited to be visiting next year at the University of Texas School of Law.  Blogging is likely to be slow on my end for the next 2 weeks or so, but in the meantime I’m definitely in the market for some good advice on places to eat and family friendly things to do in Austin.   I’m told there is no shortage of either.  Feel free to leave ideas in the comments or send them to me by email.

Posted in musings | Comments Off

Behavioral Economics and Antitrust at AAI

Posted by Josh Wright on June 29, 2008

Related to Thom’s post on behavioral economics and the problem of conflicting or offsetting biases, the American Antitrust Institute (AAI) held a conference on June 18th 2008 (audio available at the link above). The conference was, as I understand it, designed as a precursor to the AAI’s release of a “Transition Report” to the next administration, offering its own view of antitrust enforcement agenda. The conference kicked off with a keynote from Donald Langevoort (Georgetown), filling in for Cass Sunstein, on behavioral economics and its potential role in antitrust followed by a panel discussion. After listening and reading Thom’s post, and informed by some of the work that I’ve done comparing the empirical predictions of “traditional” microeconomic theory with behavioral economics in consumer contracting markets and finding that the former outperforms the latter, I had a few reactions to what I heard from the keynote and panelists.

The first was that I was surprised at how willing the panelists were to take the various behavioral and experimental insights as “given” for the purposes of antitrust analysis in light of influential papers calling into question their robustness, e.g. Zeiler and Plott I or Zeiler and Plott II with respect to the “endowment effect.” In fact, the keynote began with a long discussion of the endowment effect which asserted that the findings were robust and well established. The tone of panel as a whole was that the results were generally assumed to be verified, robust, and “ready for primetime” in terms of translation into policies. Papers challenging the existence or robustness of these results or outlining their limitations (e.g. learning, specialization, competition) were not mentioned (if they were I missed it).

The second was that I didn’t hear anything about what Thom calls the “conflicting quirks” problem. Of course, as Dan Ariely notes in his comment to Thom’s post, behavioral economics is a young science and many of these issues remain to be worked out. My point is not that they will not be or cannot be. That remains to be seen. Rather, I’m saying that the appropriate point to raise these issues seems to be before we regulate or alter the research agenda based on the existing literature.

Third, there was little discussion about how an antitrust agenda informed by behavioral economics would deal with the problem of behaviorally biased regulators making systematic errors. I did appreciate hearing some discussion of the problem of extrapolating laboratory results to firms, though this strikes me as a much larger problem than the discussion suggested. All in all, it was an interesting panel discussion and keynote and definitely worth a listen.  But I’d like to see a more rigorous theory of incorporating behavioral economics into antitrust, and particularly a theory that addresses some of the objections discussed above, before one takes seriously the notion of altering competition policy to make room for these experimental results.

 

 

Posted in antitrust, economics, legal scholarship, markets, regulation, scholarship | Comments Off

Lipton on Shareholder Primacy

Posted by Thom Lambert on June 27, 2008

It should be no surprise that the inventor of the poison pill is pro-director, but Marty Lipton’s remarks at a June 25 conference at the University of Minnesota Law School left no doubt that he truly believes in his heart of hearts that we’re better off with strong, unencumbered boards. According to the WSJ’s deals blog (quoted in today’s print edition), Lipton wondered aloud whether the move to shareholder-centric governance will “simply overwhelm American business corporations.” He also remarked:

The board-centric model of governance is premised on the notion that boards merit the vote of confidence of shareholders and the public markets, and notwithstanding the strong current of distrust that runs through many corporate governance reforms, history has proven this vote of confidence to be well-deserved. I believe it is the only way to assure that public corporations will be able to compete with the state corporatism that is transforming the economies of China, Russia, and other rapidly industrializing countries, cope with the demands for short-term (and shortsighted) stock gains by activist hedge funds and make the long-term investments in the future of their businesses that are essential for the future prosperity of our nation.

Posted in corporate governance | 1 Comment »

Academic Buzzwords

Posted by Josh Wright on June 26, 2008

Apparently, the Local Government Association has told British bureaucrats in local and town governments to stop using 100 “non-words.” (CNN) From the story:

The list includes the popular but vague term “empowerment;” “coterminosity,” a situation in which two organizations oversee the same geographical area; and “synergies,” combinations in which the whole is greater than the sum of its parts. Officials were told to ditch the term “revenue stream” for income, as well as the imprecise “sustainable communities.” The association also said councils should stop referring to local residents as “customers” or “stakeholders.” The association’s chairman, Simon Milton, said officials should not “hide behind impenetrable jargon and phrases.” “Why do we have to have ‘coterminous, stakeholder engagement’ when we could just ‘talk to people’ instead?” he said.

Legal academics are certainly not immune to anything ranging from the use of non-words to scholarly cliches and “ostentatious erudition.” There is even academic buzzword bingo. Any good examples of words that should make the list of top 100 words never to be seen again in law reviews?  Because I just read an article that used the word “modalities” 51 times in about as many pages, I’ll start there.

Posted in musings | 2 Comments »

New Global Competition Policy: Class Cert & Merger Review in the UK

Posted by Josh Wright on June 26, 2008

The new issue is available here, and features the following articles in Class Certification and Antitrust Actions:

Why Economics Now Matters for Antitrust Class Actions at the Class Certification Stage
by Wendy Bloom (Kirkland & Ellis)

The Potential Impact of Twombly on Antitrust Class Actions
by Wendy Bloom (Kirkland & Ellis) and James Langenfeld (LECG)

Opening the Curtain: Why Economics is Taking Center Stage in Class Certification Battles in Antitrust Cases
by John Majoras (Jones Day)

Assessing Antitrust Injury in the Class Certification Context
by William Rooney (Willkie Farr & Gallagher) & Kristin McNamara (Willkie Farr & Gallagher)

Economic Analysis of Class Certification
by Richard Schmalansee  (MIT Sloan School of Management)

And the following articles on MERGER REVIEW IN THE UK:

A New Style of Merger Review in the UK: Perspectives and Proposed Reforms
by Andrea Gomes da Silva (Freshfields)  & Manish Das (Freshfields)

Comment on the OFT and Competition Commission Merger Guidelines Review
by Thomas Sharpe QC (One Essex Court)

The OFT Draft Mergers Jurisdictional and Procedural Guidance and key Issues Arising in UK Merger Control
by Sheila Tormey (Barlow Lyde & Gilbert)

 
 

Posted in antitrust, economics, legal scholarship, mergers & acquisitions, regulation, scholarship | Comments Off

The Law Of Household Economics

Posted by Bill Sjostrom on June 25, 2008

Yesterday the W$J ran an article with the above-referenced title (see here). The gist of the article is that whenever a household is blessed with an unexpected windfall, it will be cursed by an equal, unexpected cost. When I read the column, I thought to myself that it’s funny because it’s true. Now I’m thinking it’s true but not so funny. Earlier this week I learned that I’m getting a bigger than expected raise for the coming year. Well, a few hours ago my wife called me from the orthodontist to tell me that my oldest son needs braces. After answering the question of “how much is that going to cost us” she remarked “there goes the raise” and she hadn’t even read the article. Damn the law of household economics.

Posted in economics | Comments Off

Behavioralism and the Problem of Conflicting Quirks

Posted by Thom Lambert on June 25, 2008

I’ve been spending quite a bit of time with the behavioralists lately. I recently read Dan Ariely’s interesting book, Predictably Irrational: The Hidden Forces that Shape Our Decisions. Then I heard Tom Ulen give a nice overview presentation at the recent Silicon Flatirons conference on the New Institutional Economics. I’m currently reading Cass Sunstein and Richard Thaler’s, Nudge: Improving Decisions About Health, Wealth, and Happiness, which argues that public policies should be structured (by “choice architects”) to account for the various cognitive quirks behavioralists have discovered.

I must admit, I’ve had plenty of misgivings about behavioralism in the past. Mainly, I’ve suspected that the empirical evidence purporting to demonstrate major, systematic cognitive quirks was not all that strong. For example, I believe (though I’m not sure) that I was a subject in one of those coffee mug experiments that purports to establish the endowment effect. We did one of those exercises in one of my law school classes. If that’s the sort of experimental data underlying this supposed quirk, it’s hardly robust. Indeed, as Josh has explained, Charles Plott and Kathryn Zeiler recently showed that the endowment effect studies reach quite different conclusions when the questions are posed differently.

In addition to questioning the quality of the underlying empirical data, I’ve suspected that behavioralists are too quick to draw conclusions — both positive and normative — from their experimental findings. I once wrote a short response piece titled Two Mistakes Behavioralists Make, where I criticized two symposium participants for jettisoning rational accounts too quickly in attempting to explain survey findings and for being too quick to advocate governmental solutions to various cognitive quirks (with little regard for government’s own institutional maladies).

But I don’t want to be a knee-jerk ideologue. When facts conflict with theory, facts must prevail. To the extent people do depart systematically from the rational choice model of human behavior, we need to tweak the model accordingly. And when we’re crafting public policies, we ought to take account of the behavior of real people (“humans” as opposed to “econs,” to use Sunstein and Thaler’s lingo).

The challenge for the behavioralists is to set forth a predictable (and thus useable) model of human behavior that improves upon the rational choice model by accounting for the well-established, systematic departures from rationality. That’s presumably what books like Dan Ariely’s Predictably Irrational are trying to do. But there’s still lots of work to be done in this area.

A particularly vexing problem, I believe, is the difficulty of conflicting quirks. What do we do when one heuristic would lead humans to reach a particular non-rational conclusion and another simultaneously operative heuristic would push in the opposite direction? Which heuristic trumps? We need to know that so that we can predict what conclusions people will reach.

Consider, for example, chapter one of Sunstein and Thaler’s book. The chapter, titled “Biases and Blunders” aims to sketch out the mental shortcuts we humans use in judging the magnitude of risks. The authors discuss the well-known “availability heuristic,” pursuant to which people “assess the likelihood of risks by asking how readily examples come to mind.” They explain that “[i]f people can easily think of relevant examples, they are far more likely to be frightened and concerned than if they cannot.” (So, for example, we tend to think that homicide is more common than suicide because we hear about homicides more; in reality, suicide is far more common.) Sunstein and Thaler also discuss people’s overconfidence bias, which leads us to be overly optimistic about our own abilities to avoid bad outcomes (e.g., 90 percent of drivers believe they are above average behind the wheel).

So what would we predict about human risk judgments when both of these heuristics are operative? Take, for example, gay men’s estimates of their risk of contracting HIV. On the one hand, gay men are much more likely to know people infected with HIV and to have observed the highly salient, agonizing death of friend or acquaintance suffering from AIDS. (The more salient a bad outcome, the greater its perceived risk.) On the other hand, because the behavior leading to HIV infection is generally voluntary, the overconfidence bias is likely to kick in. Which bias would we expect to trump?

Sunstein and Thaler point to gay men’s perceptions of their own HIV risk as exemplifying the overconfidence bias: “Gay men systematically underestimate the chance that they will contract AIDS, even though they know about AIDS risks in general.” But what happened to the availability heuristic and the salience bias?

Perhaps I’m demanding too much here. Even the rational choice model can’t predict human judgments when individual preferences push in different directions (e.g., will a lawyer who values money, leisure, and the life of the mind give up a lucrative law firm job to become a law professor?). But I do think that if we’re going to complicate the rational choice model with a bunch of quirky “exceptions,” we need some account of how the quirks interact when they conflict. Otherwise, we won’t be able to say that humans are predictably irrational.

Posted in economics, law and economics | 1 Comment »

Cert Granted in Linkline

Posted by Josh Wright on June 23, 2008

The Supreme Court has granted cert in Pacific Bell Telephone Co., dba AT&T California v. linkLine Communications in order to address the question of whether a Section 2 “price squeeze” claim is viable under the Sherman Act if the defendant has no duty to deal.  (HT: Scotusblog, which also has all of the relevant links).   The “price squeeze” claim alleges that the defendant— typically a vertically integrated retail competitor with a monopoly at the wholesale level— leaves too small a margin between wholesale and retail prices to allow the plaintiff to compete.

Of course, one of the most interesting aspects of the case is that the Solicitor General’s amicus brief favored granting cert whereas the Federal Trade Commission Statement recommends denial.   If the recent trends of the Robert Court’s antitrust jurisprudence hold, the combination of consensus view that “price squeeze” claims don’t make economic sense or improve consumer welfare and the Solicitor General’s recommendation means that the smart money is that the Court will abolish the price squeeze theory of liability.   I predict at least 7 votes in the majority.

Posted in antitrust, economics, federal trade commission, regulation | Comments Off

The NWU 2 Year Program

Posted by Josh Wright on June 21, 2008

Bill Henderson has some thoughtful commentary on Northwestern University’s announcement of its 2 Year JD.  He likes it.  Here’s an excerpt:

So let’s get this straight:  NWU Law is going to attract applications from all the experienced, motivated students who want their elite JD degrees in two years versus three.  Then it is going to give them, through mandatory coursework, business training that will bridge the traditional gap between lawyers and their MBA clientèle.   Sorting plus training.  Why would an employer prefer a 25 year-old fresh out of another elite law school?  Because the education was stretched over 32 months rather than 24 months–that trumps work experience and mandatory business training?

Read the whole thing.  Bill looks to the market for evidence that the NWU program is a good idea (and finds it).   As an economist, I am inclined to agree with Bill that this approach is superior to ” taking a poll in the faculty lounge.”  Along those lines, there is a rule of thumb in antitrust analysis that a fairly reliable indicator for assessing the competitive effects of some proposed conduct: if customers complain, the conduct is likely to be anticompetitive, but if it is competitors that are complaining, the proposed conduct probably makes the firm a more effective competitor and is good for consumers.  Through this lens, the critical comments from representatives of Northwestern’s in state rivals University of Chicago and University of Illinois (Chicago Professor Geoff Stone went so far as to describe the program as “irresponsible”) look like good news for consumers of legal education.

Posted in law school, universities | Comments Off

 
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