Truth on the Market

Academic commentary on law, business, economics and more

Archive for March, 2009

Capitalism is Good

Posted by Josh Wright on March 22, 2009

A friendly reminder from Becker and Murphy:

Consider the following extraordinary statistics about the performance of the world economy since 1980. World real gross domestic product grew by about 145 per cent from 1980 to 2007, or by an average of roughly 3.4 per cent a year. The so-called capitalist greed that motivated business people and ambitious workers helped hundreds of millions to climb out of grinding poverty. The role of capitalism in creating wealth is seen in the sharp rise in Chinese and Indian incomes after they introduced market-based reforms (China in the late 1970s and India in 1991). Global health, as measured by life expectancy at different ages, has also risen rapidly, especially in lower-income countries.

Of course, the performance of capitalism must include this recession and other recessions along with the glory decades. Even if the recession is entirely blamed on capitalism, and it deserves a good share of the blame, the recession-induced losses pale in comparison with the great accomplishments of prior decades. Suppose, for example, that the recession turns into a depression, where world GDP falls in 2008-10 by 10 per cent, a pessimistic assumption. Then the net growth in world GDP from 1980 to 2010 would amount to 120 per cent, or about 2.7 per cent a year over this 30-year period. This allowed real per capita incomes to rise by almost 40 per cent even though world population grew by roughly 1.6 per cent a year over the same period

….

The policies of the Bush and Obama administrations violate the “do no harm” principle. Interventions by the US Treasury in financial markets have added to the uncertainty and slowed market responses that would help stabilise and recapitalise the system. The government has overridden contracts and rewarded many of those whose poor decisions helped create the mess. It proposes to override even more contracts. As a result of the Treasury’s actions, we face further distorted decision-making as government ownership of big financial institutions threatens to substitute political agendas for business judgments in running these companies. While such dramatic measures may be expedient, they are likely to have serious adverse consequences.

These problems are symptomatic of three basic flaws in the current approach to the crisis. They are an overly broad diagnosis of the problem, a misconception that market failures are readily overcome by government solutions and a failure to focus on the long-run costs of current actions.

Definitely read the whole thing.

Posted in business, economics, markets, regulation, stimulus debate | Comments Off

Antitrust Pleading After Twombly

Posted by Josh Wright on March 22, 2009

Here’s a report from Shearman & Stearling (HT: Point of Law).

A few interesting highlights from the report:

  • “federal courts are granting, at almost a 2:1 ratio, defendants’ motions to dismiss.”
  • Sample sizes still too small to say anything meaningful about inter-Circuit variation, but the report tells us that the D.C. Circuit has refused to grant all defendants’ motion to dismiss while the 5th and 11th Circuits have granted 100% of them (only 6 and 2, respectively)
  • The 9th hears the most antitrust cases over the sample (19) and grants defendants’ motion to dismiss 74% of the time
  • The 3rd Circuit came in with the lowest motion to dismiss success rate at 33% (5 of 15)

Check out the whole report.  Lots of really interesting stuff in there including appendix with discussion of all the cases.

Posted in antitrust | Comments Off

ABA Spring Meetings

Posted by Josh Wright on March 20, 2009

I’ll be in DC next week for the ABA Spring Meetings — including teaching an antitrust fundamentals course on basic economic principles on Wednesday morning (along with co-panelists Andrew Gavil (Howard), Erika Brown-Lee (FTC).  One of the panels I’m most interested in watching is the Friday morning enforcers roundtable which looks like it will feature Chairman Leibowitz, perhaps AAG-Designate Varney, Robert Hubbard (NY State), and Nellie Kroes.  My predictable prediction is that this panel will involve far more agreement and convergence than we’ve seen in years past.

Posted in antitrust | 1 Comment »

JLE = UVA Law Review?

Posted by Josh Wright on March 20, 2009

Brian Leiter put together an interesting survey on the “top 20″ highest quality publishers of legal scholarship.  Here are the top 10:

1. Harvard Law Review  (Condorcet winner: wins contests with all other choices)
2. Yale Law Journal  loses to Harvard Law Review by 112–66
3. Columbia Law Review  loses to Harvard Law Review by 155–43, loses to Yale Law Journal by 153–45
4. Journal of Legal Studies  loses to Harvard Law Review by 135–66, loses to Columbia Law Review by 109–92
5. Stanford Law Review  loses to Harvard Law Review by 167–27, loses to Journal of Legal Studies by 100–99
6. University of Chicago Law Review  loses to Harvard Law Review by 166–31, loses to Stanford Law Review by 106–79
7. Oxford Journal of Legal Studies  loses to Harvard Law Review by 129–65, loses to University of Chicago Law Review by 94–83
8. Michigan Law Review  loses to Harvard Law Review by 178–21, loses to Oxford Journal of Legal Studies by 89–85
9. New York University Law Review  loses to Harvard Law Review by 177–23, loses to Michigan Law Review by 101–71
10. Tied:
Journal of Law & Economics  loses to Harvard Law Review by 142–56, loses to New York University Law Review by 92–85
Virginia Law Review  loses to Harvard Law Review by 177–20, loses to New York University Law Review by 95–74

Very interesting.  As one anonymous law and economics scholar and commenter to Professor Leiter’s post notes (it is not me), while JLS is a wonderful journal, I was a little surprised it came in so far ahead of JLE and JLE) (which appears further down the list).  Personally, if given the hypothetical choice I *think* I’d publish in JLE over just about any journal in that list — though the law reviews in the top 5 (Stanford, Columbia, Yale, Harvard) would be very tempting in order to reach a broader audience.

What do others think about the rankings?  For the antitrusters in particular, how about the following question: “What law review placement would make you indifferent to publishing in the Antitrust Law Journal?”  What about JLE for those doing antitrust law and economics?  How about other field specific journals, e.g. Antitrust Bulletin, Competition Policy International, and the Journal of Competition Law and Economics (in alphabetical order)?

Posted in economics, law and economics, law school, legal scholarship, musings | Comments Off

Congrats Professor Crane

Posted by Josh Wright on March 20, 2009

Let me join Danny Sokol in congratulating Dan Crane in accepting a lateral offer at the University of Michigan.  Dan is one the clearest antitrust thinkers around and a bright star in the group of younger antitrust law profs.  I’m a big fan of his work.  But you don’t even have to go download all of his papers to get a sense of Dan’s work (though you should!), as he’ll be a participate in the TOTM blog symposium next week.  This is a great hire for Michigan. 

Posted in antitrust, law school, markets | Comments Off

AIG Isn't Too Big Too Fail

Posted by Josh Wright on March 20, 2009

So says Lucian Bebchuk in the WSJ:

While AIG has thus far been able to cover derivative losses using government funds, the possibility of large additional losses must be recognized. AIG recently stated that it still has about $1.6 trillion in “notional derivatives exposure.” Suppose, for example, that AIG ends up with losses equal to, say, 20% of this exposure — that is, $320 billion. Suppose also that the value of AIG’s current assets, including the shares in its insurance subsidiaries, is $160 billion. In this scenario, the government’s fully backing AIG’s obligations would produce an additional loss of $160 billion for taxpayers. Should the government be prepared to do so?

The alternative would be to put AIG into Chapter 11. In this case, AIG’s creditors, including its derivative counterparties, would obtain the company’s assets. They would end up with a 50% recovery on their claims, bearing those $160 billion of losses themselves.

It is important to understand that the government can also employ intermediate approaches between fully backing AIG’s derivative obligations and no backing. For example, the government could place AIG in Chapter 11, but commit to provide supplemental coverage that would make up any difference between the value that creditors would get from AIG’S reorganization and, say, an 80% recovery. Such an approach could allow setting different haircuts for different classes of creditors. The government, for example, might elect not to provide such supplemental coverage to executives owed money by AIG.

At a minimum, the government should conduct “stress tests,” estimating potential losses in alternative scenarios, and formulate a policy on the magnitude and fraction of derivative losses it would be willing to cover. A policy that doesn’t fully back AIG’s obligations should be seriously considered.

Read the whole thing.

Posted in bankruptcy, business, corporate governance, economics, executive compensation, regulation, stimulus debate | Comments Off

Gabriel on Trinko After Linkline

Posted by Josh Wright on March 19, 2009

Manfred Gabriel (Antitrust Review) writes that Linkline extends the reach of Trinko in some important ways:

The opinion of the court in Linkline, Chief Justice Roberts writes that Trinko:

… makes clear that if a firm has no antitrust duty to deal with its competitors at wholesale, it certainly has no duty to deal under terms and conditions that the rivals find commercially advantageous. … The nub of the complaint in both Trinko and [Linkline] are identical—the plaintiffs alleged that the defendants (upstream monopolists) abused their power in the wholesale market to prevent rival firms from competing effectively in the retail market. Trinko holds that such claims are not cognizable under the Sherman Act in the absence of an antitrust duty to deal.

This re-interpretation of Trinko, extends Trinko in significant ways. First, the specific application to the telecommunications industry and its regulatory scheme is gone; Trinko á la Linkline is broadly applicable to any vertically-integrated upstream monopolist. Second, the holding is no longer confined to an extension of the antitrust laws, but reaches all of §2 (hence the possibility of a slippery slope, as Hanno pointed out). Finally, the presence and effectiveness of a regulatory scheme, which provides a regulatory duty to deal and which may or may not address abuses of market power, has been taken out of the equation: the only thing that matters now is the absence of an antitrust duty to deal. And we know from Trinko that antitrust duties to deal probably don’t exist except perhaps under Aspen Skiing, that is in the case of prior business relationships discontinued for no good reason other than exclusion of a rival.

Read the whole thing.

Posted in antitrust | Comments Off

Free Trade Petition

Posted by Josh Wright on March 19, 2009

Atlas Economic Research Foundation is circulating a petition in favor of free trade (HT Sasha Volokh).  The plan is to unveil the petition before the April 1 G20 meetings in London.  Here is the text of the petition.  You can sign it here if you are interested.

Free Trade Is the Best Policy

The specter of protectionism is rising.  It is always a dangerous and foolish policy, but it is especially dangerous at a time of economic crisis, when it threatens to damage the world economy.  Protectionism’s peculiar premise is that national prosperity is increased when government grants monopoly power to domestic producers.  As centuries of economic reasoning, historical experience, and empirical studies have repeatedly shown, that premise is dead wrong.  Protectionism creates poverty, not prosperity. Protectionism doesn’t even “protect” domestic jobs or industries; it destroys them, by harming export industries and industries that rely on imports to make their goods.  Raising the local prices of steel by “protecting” local steel companies just raises the cost of producing cars and the many other goods made with steel.  Protectionism is a fool’s game.

But the fact that protectionism destroys wealth is not its worst consequence.  Protectionism destroys peace.  That is justification enough for all people of good will, all friends of civilization, to speak out loudly and forcefully against economic nationalism, an ideology of conflict, based on ignorance and carried into practice by protectionism.

Two hundred and fifty years ago, Montesquieu observed that “Peace is the natural effect of trade. Two nations who differ with each other become reciprocally dependent; for if one has an interest in buying, the other has an interest in selling; and thus their union is founded on their mutual necessities.”

Trade’s most valuable product is peace.  Trade promotes peace, in part, by uniting different peoples in a common culture of commerce – a daily process of learning others’ languages, social norms, laws, expectations, wants, and talents.

Trade promotes peace by encouraging people to build bonds of mutually beneficial cooperation.  Just as trade unites the economic interests of Paris and Lyon, of Boston and Seattle, of Calcutta and Mumbai, trade also unites the economic interests of Paris and Portland, of Boston and Berlin, of Calcutta and Copenhagen – of the peoples of all nations who trade with other.

A great deal of rigorous empirical research supports the proposition that trade promotes peace.

Perhaps the most tragic example of what happens when that insight is ignored is World War II.

International trade collapsed by 70 percent between 1929 and 1932, in no small part because of America’s 1930 Smoot-Hawley tariff and the retaliatory tariffs of other nations.  Economist Martin Wolf notes that “this collapse in trade was a huge spur to the search for autarky and Lebensraum, most of all for Germany and Japan.”

The most ghastly and deadly wars in human history soon followed.

By reducing war, trade saves lives.

Trade saves lives also by increasing prosperity and extending it to more and more people.  The evidence that freer trade promotes prosperity is simply overwhelming. Prosperity enables ordinary men and women to lead longer and healthier lives.

And with longer, healthier lives lived more peacefully, people integrated into the global economy have more time to enjoy the vast array of cultural experiences brought to them by free trade.  Culture is enriched by contributions from around the world, made possible by free trade in goods and in ideas.

Without a doubt, free trade increases material prosperity.  But its greatest gift is not easily measured with money. That greatest gift is lives that are freer, fuller, and far less likely to be scalded or destroyed by the atrocities of war.

Accordingly, we the undersigned join together in a plea to the governments of all nations to resist the calls of the short-sighted and the greedy to raise higher the barriers to trade.  In addition, we call on them to tear down current protectionist barriers to free trade. To each government, we say: let your citizens enjoy not only the fruits of your own fields, factories, and genius, but also those of the entire globe.  The rewards will be greater prosperity, richer lives, and enjoyment of the blessings of peace.

Posted in economics, international politics, international trade, markets, politics | 1 Comment »

TOTM/ Patently-O Blog Symposium: Michael Carrier's Innovation for the 21st Century

Posted by Josh Wright on March 19, 2009

On March 30th and 31st, TOTM will hold its first blog symposium.  The topic will be Michael Carrier’s (Rutgers) forthcoming book: Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law (from Oxford University Press).

carrierphotl.jpg

We’ve invited a number of leading scholars from the fields of antitrust and intellectual property to comment on Professor Carrier’s book.  Here is a description of the book’s contents from Professor Carrier:

Innovation for the 21st Century offers ten proposals, from pharmaceuticals to peer-to-peer software, that will help foster innovation.  Of the ten proposals, three target antitrust topics that may be of interest to your readers: (1) settlement agreements between brand and generic firms in the pharmaceutical industry, (2) an innovation-markets framework to be applied to pharmaceutical mergers in which the “products” are in preclinical or clinical trials, and (3) standard-setting.  The book also offers a primer on patent, copyright, and antitrust law, as well as the IP-antitrust intersection.

On Monday, March 30th, we will focus primarily on the antitrust aspects of Carrier’s proposals.  The four discussants will be: Dan Crane (University of Chicago/ Cardozo), Geoff Manne (TOTM/LECG), Phil Weiser (Colorado), and yours truly.

On Tuesday, March 31st, we will focus primarily on the intellectual property aspects of Carrier’s work.  The three discussants will be:  Dennis Crouch (Patently-O/Missouri), Brett Frischmann (Cornell/ Loyola), and F. Scott Kieff (Wash U./ Hoover/ and on his way to GW).

On Tuesday afternoon or Wednesday morning (depending on the length of the posts), Carrier will post a response.  In the meantime, I do hope that the participants, Professor Carrier, our normal cadre of excellent commenters will mix it up in the comments throughout (mix it up, of course, in the civil and respectful tone that we usually see here).

I want to thank this great lineup of antitrust and IP scholars for agreeing to participate.  It should be a lot of fun.

The symposium will be a joint production, thanks to Dennis Crouch, with posts going up both here and Patently-O.

More details to be announced soon. For now, buy the book!  See you on March 30th and 31st.

Posted in announcements, antitrust, blogging, copyright, economics, intellectual property, legal scholarship, markets, patent, technology | Comments Off

OK, The Stimulus and Bailouts are One Thing …

Posted by Josh Wright on March 19, 2009

But THIS is where I draw the line.

Go Bruins.

Posted in musings, sports | Comments Off

 
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