Archives For Labor Law

Under a recently proposed rule, the Federal Trade Commission (FTC) would ban the use of noncompete terms in employment agreements nationwide. Noncompetes are contracts that workers sign saying they agree to not work for the employer’s competitors for a certain period. The FTC’s rule would be a major policy change, regulating future contracts and retroactively voiding current ones. With limited exceptions, it would cover everyone in the United States.

When I scan academic economists’ public commentary on the ban over the past few weeks (which basically means people on Twitter), I see almost universal support for the FTC’s proposed ban. You see similar support if you expand to general econ commentary, like Timothy Lee at Full Stack Economics. Where you see pushback, it is from people at think tanks (like me) or hushed skepticism, compared to the kind of open disagreement you see on most policy issues.

The proposed rule grew out of an executive order by President Joe Biden in 2021, which I wrote about at the time. My argument was that there is a simple economic rationale for the contract: noncompetes encourage both parties to invest in the employee-employer relationship, just like marriage contracts encourage spouses to invest in each other.

Somehow, reposting my newsletter on the economic rationale for noncompetes has turned me into a “pro-noncompete guy” on Twitter.

The discussions have been disorienting. I feel like I’m taking crazy pills! If you ask me, “what new thing should policymakers do to address labor market power?” I would probably say something about noncompetes! Employers abuse them. The stories are devastating about people unable to find a new job because noncompetes bind them.

Yet, while recognizing the problems with noncompetes, I do not support the complete ban.

That puts me out of step with most vocal economics commentators. Where does this disagreement come from? How do I think about policy generally, and why am I the odd one out?

My Interpretation of the Research

One possibility is that I’m not such a lonely voice, and that the sample of vocal Twitter users is biased toward particular policy views. The University of Chicago Booth School of Business’ Initiative on Global Markets recently conducted a poll of academic economists  about noncompetes, which mostly finds differing opinions and levels of certainty about the effects of a ban. For example, 43% were uncertain that a ban would generate a “substantial increase in wages in the affected industries.” However, maybe that is because the word substantial is unclear. That’s a problem with these surveys.

Still, more economists surveyed agreed than disagreed. I would answer “disagree” to that statement, as worded.

Why do I differ? One cynical response would be that I don’t know the recent literature, and my views are outdated. From the research I’ve done for a paper that I’m writing on labor-market power, I’m fairly well-versed in the noncompete literature. I don’t know it better than the active researchers in the field, but better than the average economists responding to the FTC’s proposal and definitely better than most lawyers. My disagreement also isn’t about me being some free-market fanatic. I’m not, and some other free-market types are skeptical of noncompetes. My priors are more complicated (critics might say “confused”) than that, as I will explain below.

After much soul-searching, I’ve concluded that the disagreement is real and results from my—possibly weird—understanding of how we should go from the science of economics to the art of policy. That’s what I want to explain today and get us to think more about.

Let’s start with the literature and the science of economics. First, we need to know “the facts.” The original papers focused a lot on collecting data and facts about noncompetes. We don’t have amazing data on the prevalence of noncompetes, but we know something, which is more than we could say a decade ago. For example, Evan Starr, J.J. Prescott, & Norman Bishara (2021) conducted a large survey in which they found that “18 percent of labor force participants are bound by noncompetes, with 38 percent having agreed to at least one in the past.”[1] We need to know these things and thank the researchers for collecting data.

With these facts, we can start running regressions. In addition to the paper above, many papers develop indices of noncompete “enforceability” by state. Then we can regress things like wages on an enforceability index. Many papers—like Starr, Prescott, & Bishara above—run cross-state regressions and find that wages are higher in states with higher noncompete enforceability. They also find more training with noncompete enforceability. But that kind of correlation is littered with selection issues. High-income workers are more likely to sign noncompetes. That’s not causal. The authors carefully explain this, but sometimes correlations are the best we have—e.g., if we want to study noncompetes on doctors’ wages and their poaching of clients.

Some people will simply point to California (which has banned noncompetes for decades) and say, “see, noncompete bans don’t destroy an economy.” Unfortunately, many things make California unique, so while that is evidence, it’s hardly causal.

The most credible results come from recent changes in state policy. These allow us to run simple difference-in-difference types of analysis to uncover causal estimates. These results are reasonably transparent and easy to understand.

Michael Lipsitz & Evan Starr (2021) (are you starting to recognize that Starr name?) study a 2008 Oregon ban on noncompetes for hourly workers. They find the ban increased hourly wages overall by 2 to 3%, which implies that those signing noncompetes may have seen wages rise as much as 14 to 21%. This 3% number is what the FTC assumes will apply to the whole economy when they estimate a $300 billion increase in wages per year under their ban. It’s a linear extrapolation.

Similarly, in 2015, Hawaii banned noncompetes for new hires within tech industries. Natarajan Balasubramanian et al. (2022) find that the ban increased new-hire wages by 4%. They also estimate that the ban increased worker mobility by 11%. Labor economists generally think of worker turnover as a good thing. Still, it is tricky here when the whole benefit of the agreement is to reduce turnover and encourage a better relationship between workers and firms.

The FTC also points to three studies that find that banning noncompetes increases innovation, according to a few different measures. I won’t say anything about these because you can infer my reaction based on what I will say below on wage studies. If anything, I’m more skeptical of innovation studies, simply because I don’t think we have a good understanding of what causes innovation generally, let alone how to measure the impact of noncompetes on innovation. You can read what the FTC cites on innovation and make up your own mind.

From Academic Research to an FTC Ban

Now that we understand some of the papers, how do we move to policy?

Let’s assume I read the evidence basically as the FTC does. I don’t, and will explain as much in a future paper, but that’s not the debate for this post. How do we think about the optimal policy response, given the evidence?

There are two main reasons I am not ready to extrapolate from the research to the proposed ban. Every economist knows them: the dreaded pests of external validity and general equilibrium effects.

Let’s consider external validity through the Oregon ban paper and the Hawaii tech ban paper. Again, these are not critiques of the papers, but of how the FTC wants to move from them to a national ban.

Notice above that I said the Oregon ban went into effect in 2008, which means it happened as the whole country was entering a major recession and financial crisis. The authors do their best to deal with differential responses to the recession, but every state in their data went through a recession. Did the recession matter for the results? It seems plausible to me.

Another important detail about the Oregon ban is that it only applied to hourly workers, while the FTC rule would apply to all workers. You can’t just confidently assume hourly workers are just like salaried workers. Hourly workers who sign noncompetes are less likely to read them, less likely to consult with their family about them, and less likely to negotiate over them. If part of the problem with noncompetes is that people don’t understand them until it is too late, you will overstate the harm if you just look at hourly workers who understand noncompetes even less than salaried workers. Also, with a partial ban, Lipsitz & Starr recognize that spillovers matter and firms respond in different ways, such as converting workers to salaried to keep the noncompete, which won’t exist with a national ban. It’s not the same experiment at a national scale. Which way will it change? How confident are we?

The effects of the Hawaii ban are likely not the same as the FTC one would be. First of all, Hawaii is weird. It has a small population, and tech is a small part of the state’s economy. The ban even excluded telecom from within the tech sector. We are talking about a targeted ban. What does the Hawaii experiment tell us about a ban on noncompetes for tech workers in a non-island location like Boston? What does it tell us about a national ban on all noncompetes, like the FTC is proposing? Maybe these things do not matter. To further complicate things, the policy change included a ban on nonsolicitation clauses. Maybe the nonsolicitation clause was unimportant. But I’d want more research and more policy experimentation to tease out these details.

As you dig into these papers, you find more and more of these issues. That’s not a knock on the papers but an inherent difficulty in moving from research to policy. It’s further compounded by the fact that this empirical literature is still relatively new.

What will happen when we scale these bans up to the national level? That’s a huge question for any policy change, especially one as large as a national ban. The FTC seems confident in what will happen, but moving from micro to macro is not trivial. Macroeconomists are starting to really get serious about how the micro adds up to the macro, but it takes work.

I want to know more. Which effects are amplified when scaled? Which effects drop off? What’s the full National Income and Product Accounts (NIPA) accounting? I don’t know. No one does, because we don’t have any of that sort of price-theoretic, general equilibrium research. There are lots of margins that firms will adjust on. There’s always another margin that firms will adjust that we are not capturing. Instead, what the FTC did is a simple linear extrapolation from the state studies to a national ban. Studies find a 3% wage effect here. Multiply that by the number of workers.

When we are doing policy work, we would also like some sort of welfare analysis. It’s not just about measuring workers in isolation. We need a way to think about the costs and benefits and how to trade them off. All the diff-in-diff regressions in the world won’t get at it; we need a model.

Luckily, we have one paper that blends empirics and theory to do welfare analysis.[2] Liyan Shi has a paper forthcoming in Econometrica—which is no joke to publish in—titled “Optimal Regulation of Noncompete Contracts.” In it, she studies a model meant to capture the tradeoff between encouraging a firm’s investment in workers and reducing labor mobility. To bring the theory to data, she scrapes data on U.S. public firms from Securities and Exchange Commission filings and merges those with firm-level data from Compustat, plus some others, to get measures of firm investment in intangibles. She finds that when she brings her model to the data and calibrates it, the optimal policy is roughly a ban on noncompetes.

It’s an impressive paper. Again, I’m unsure how much to take from it to extrapolate to a ban on all workers. First, as I’ve written before, we know publicly traded firms are different from private firms, and that difference has changed over time. Second, it’s plausible that CEOs are different from other workers, and the relationship between CEO noncompetes and firm-level intangible investment isn’t identical to the relationship between mid-level engineers and investment in that worker.

Beyond particular issues of generalizing Shi’s paper, the larger concern is that this is the paper that does a welfare analysis. That’s troubling to me as a basis for a major policy change.

I think an analogy to taxation is helpful here. I’ve published a few papers about optimal taxation, so it’s an area I’ve thought more about. Within optimal taxation, you see this type of paper a lot. Here’s a formal model that captures something that theorists find interesting. Here’s a simple approach that takes the model to the data.

My favorite optimal-taxation papers take this approach. Take this paper that I absolutely love, “Optimal Taxation with Endogenous Insurance Markets” by Mikhail Golosov & Aleh Tsyvinski.[3] It is not a price-theory paper; it is a Theory—with a capital T—paper. I’m talking lemmas and theorems type of stuff. A bunch of QEDs and then calibrate their model to U.S. data.

How seriously should we take their quantitative exercise? After all, it was in the Quarterly Journal of Economics and my professors were assigning it, so it must be an important paper. But people who know this literature will quickly recognize that it’s not the quantitative result that makes that paper worthy of the QJE.

I was very confused by this early in my career. If we find the best paper, why not take the result completely seriously? My first publication, which was in the Journal of Economic Methodology, grew out of my confusion about how economists were evaluating optimal tax models. Why did professors think some models were good? How were the authors justifying that their paper was good? Sometimes papers are good because they closely match the data. Sometimes papers are good because they quantify an interesting normative issue. Sometimes papers are good because they expose an interesting means-ends analysis. Most of the time, papers do all three blended together, and it’s up to the reader to be sufficiently steeped in the literature to understand what the paper is really doing. Maybe I read the Shi paper wrong, but I read it mostly as a theory paper.

One difference between the optimal-taxation literature and the optimal-noncompete policy world is that the Golosov & Tsyvinski paper is situated within 100 years of formal optimal-taxation models. The knowledgeable scholar of public economics can compare and contrast. The paper has a lot of value because it does one particular thing differently than everything else in the literature.

Or think about patent policies, which was what I compared noncompetes to in my original post. There is a tradeoff between encouraging innovation and restricting monopoly. This takes a model and data to quantify the trade-off. Rafael Guthmann & David Rahman have a new paper on the optimal length of patents that Rafael summarized at Rafael’s Commentary. The basic structure is very similar to the Shi or Golosov &Tsyvinski papers: interesting models supplemented with a calibration exercise to put a number on the optimal policy. Guthmann & Rahman find four to eight years, instead of the current system of 20 years.

Is that true? I don’t know. I certainly wouldn’t want the FTC to unilaterally put the number at four years because of the paper. But I am certainly glad for their contribution to the literature and our understanding of the tradeoffs and that I can position that number in a literature asking similar questions.

I’m sorry to all the people doing great research on noncompetes, but we are just not there yet with them, by my reading. For studying optimal-noncompete policy in a model, we have one paper. It was groundbreaking to tie this theory to novel data, but it is still one welfare analysis.

My Priors: What’s Holding Me Back from the Revolution

In a world where you start without any thoughts about which direction is optimal (a uniform prior) and you observe one paper that says bans are net positive, you should think that bans are net positive. Some information is better than none and now you have some information. Make a choice.

But that’s not the world we live in. We all come to a policy question with prior beliefs that affect how much we update our beliefs.

For me, I have three slightly weird priors that I will argue you should also have but currently place me out of step with most economists.

First, I place more weight on theoretical arguments than most. No one sits back and just absorbs the data without using theory; that’s impossible. All data requires theory. Still, I think it is meaningful to say some people place more weight on theory. I’m one of those people.

To be clear, I also care deeply about data. But I write theory papers and a theory-heavy newsletter. And I think these theories matter for how we think about data. The theoretical justification for noncompetes has been around for a long time, as I discussed in my original post, so I won’t say more.

The second way that I differ from most economists is even weirder. I place weight on the benefits of existing agreements or institutions. The longer they have been in place, the more weight I place on the benefits. Josh Hendrickson and I have a paper with Alex Salter that basically formalized the argument from George Stigler that “every long-lasting institution is efficient.” When there are feedback mechanisms, such as with markets or democracy, the resulting institutions are the result of an evolutionary process that slowly selects more and more gains from trade. If they were so bad, people would get rid of them eventually. That’s not a free-market bias, since it also means that I think something like the Medicare system is likely an efficient form of social insurance and intertemporal bargaining for people in the United States.

Back to noncompetes, many companies use noncompetes in many different contexts. Many workers sign them. My prior is that they do so because a noncompete is a mutually beneficial contract that allows them to make trades in a world with transaction costs. As I explained in a recent post, Yoram Barzel taught us that, in a world with transaction costs, people will “erect social institutions to impose and enforce the restraints.”

One possible rebuttal is that noncompetes, while existing for a long time, have only become common in the past few decades. That is not very long-lasting, and so the FTC ban is a natural policy response to a new challenge that arose and the discovery that these contracts are actually bad. That response would persuade me more if this were a policy response brought about by a democratic bargain instead of an ideological agenda pushed by the chair of the FTC, which I think is closer to reality. That is Earl Thompson and Charlie Hickson’s spin on Stigler’s efficient institutions point. Ideology gets in the way.

Finally, relative to most economists, I place more weight on experimentation and feedback mechanisms. Most economists still think of the world through the lens of the benevolent planner doing a cost-benefit analysis. I do that sometimes, too, but I also think we need to really take our own informational limitations seriously. That’s why we talk about limited information all the time on my newsletter. Again, if we started completely agnostic, this wouldn’t point one way or another. We recognize that we don’t know much, but a slight signal pushes us either way. But when paired with my previous point about evolution, it means I’m hesitant about a national ban.

I don’t think the science is settled on lots of things that people want to tell us the science is settled on. For example, I’m not convinced we know markups are rising. I’m not convinced market concentration has skyrocketed, as others want to claim.

It’s not a free-market bias, either. I’m not convinced the Jones Act is bad. I’m not convinced it’s good, but Josh has convinced me that the question is complicated.

Because I’m not ready to easily say the science is settled, I want to know how we will learn if we are wrong. In a prior Truth on the Market post about the FTC rule, I quoted Thomas Sowell’s Knowledge and Decisions:

In a world where people are preoccupied with arguing about what decision should be made on a sweeping range of issues, this book argues that the most fundamental question is not what decision to make but who is to make it—through what processes and under what incentives and constraints, and with what feedback mechanisms to correct the decision if it proves to be wrong.

A national ban bypasses this and severely cuts off our ability to learn if we are wrong. That worries me.

Maybe this all means that I am too conservative and need to be more open to changing my mind. Maybe I’m inconsistent in how I apply these ideas. After all, “there’s always another margin” also means that the harm of a policy will be smaller than anticipated since people will adjust to avoid the policy. I buy that. There are a lot more questions to sort through on this topic.

Unfortunately, the discussion around noncompetes has been short-circuited by the FTC. Hopefully, this post gave you tools to think about a variety of policies going forward.


[1] The U.S. Bureau of Labor Statistics now collects data on noncompetes. Since 2017, we’ve had one question on noncompetes in the National Longitudinal Survey of Youth 1997. Donna S. Rothstein and Evan Starr (2021) also find that noncompetes cover around 18% of workers. It is very plausible this is an understatement, since noncompetes are complex legal documents, and workers may not understand that they have one.

[2] Other papers combine theory and empirics. Kurt Lavetti, Carol Simon, & William D. White (2023), build a model to derive testable implications about holdups. They use data on doctors and find noncompetes raise returns to tenure and lower turnover.

[3] It’s not exactly the same. The Golosov & Tsyvinski paper doesn’t even take the calibration seriously enough to include the details in the published version. Shi’s paper is a more serious quantitative exercise.

Happy New Year? Right, Happy New Year! 

The big news from the Federal Trade Commission (FTC) is all about noncompetes. From what were once the realms of labor and contract law, noncompetes are terms in employment contracts that limit in various ways the ability of an employee to work at a competing firm after separation from the signatory firm. They’ve been a matter of increasing interest to economists, policymakers, and enforcers for several reasons. For one, there have been prominent news reports of noncompetes used in dubious places; the traditional justifications for noncompetes seem strained when applied to low-wage workers, so why are we reading about noncompetes binding sandwich-makers at Jimmy John’s? 

For another, there’s been increased interest in the application of antitrust to labor markets more generally. One example among many: a joint FTC/U.S. Justice Department workshop in December 2021.

Common-law cases involving one or another form of noncompete go back several hundred years. So, what’s new? First, on Jan. 4, the FTC announced settlements with three firms regarding their use of noncompetes, which the FTC had alleged to violate Section 5. These are consent orders, not precedential decisions. The complaints were, presumably, based on rule-of-reason analyses of facts, circumstances, and effects. On the other hand, the Commission’s recent Section 5 policy statement seemed to disavow the time-honored (and Supreme-Court-affirmed) application of the rule of reason. I wrote about it here, and with Gus Hurwitz here. My ICLE colleagues Dirk Auer, Brian Albrecht, and Jonathan Barnett did too, among others. 

The Commission’s press release seemed awfully general:

Noncompete restrictions harm both workers and competing businesses. For workers, noncompete restrictions lead to lower wages and salaries, reduced benefits, and less favorable working conditions. For businesses, these restrictions block competitors from entering and expanding their businesses.

Always? Distinct facts and circumstances? Commissioner Christine Wilson noted the brevity of the statement in her dissent

…each Complaint runs three pages, with a large percentage of the text devoted to boilerplate language. Given how brief they are, it is not surprising that the complaints are woefully devoid of details that would support the Commission’s allegations. In short, I have seen no evidence of anticompetitive effects that would give me reason to believe that respondents have violated Section 5 of the FTC Act. 

She did not say that the noncompetes were fine. In a separate statement regarding one of the matters, she noted that various aspects of noncompetes imposed on security guards (running two years from termination of employment, with $10,000 liquidated damages for breach) had been found unreasonable by a state court, and therefore unenforceable under Michigan law. That seemed to her “reasonable.” I’m no expert on Michigan state law, but those terms seem to me suspect under general standards of reasonability. Whether there was a federal antitrust violation is far less clear.    

One more clue–and even bigger news–came the very next day: the Commission published a notice of proposed rulemaking (NPRM) proposing to ban the use of noncompetes in general. Subject to a limited exception for the sale of a business, noncompetes would be deemed violative of Section 5 across occupations, income levels, and industries. That is, the FTC proposed to regulate the terms of employment agreements for nearly the whole of the U.S. labor force. Step aside federal and state labor law (and the U.S. Labor Department and Congress); and step aside ongoing and active statutory experimentation on noncompete enforcement in the states. 

So many questions. There are reasons to wonder about many noncompetes. They do have the potential to solve holdup problems for firms that might otherwise underinvest in employee training and might undershare trade secrets or other proprietary information. But that’s not much of an explanation for restrictions on a counter person at a sub shop, and I’m pretty suspicious of the liquidated damages provision in the security-guards matter. Credible economic studies raise concerns, as well. 

Still, this is an emerging area of study, and many positive contributions to it (like the one linked just now, and this) illustrate research challenges that remain. An FTC Bureau of Economics working paper (oddly not cited in the 215-page NPRM) reviews the body of literature, observing that results are mixed, and that many of the extant studies have shortcomings. 

For similar reasons, comments submitted to an FTC workshop on noncompetes by the Antitrust Section of the American Bar Association said that cross-state variations in noncompete law “are seemingly justified, as the views and literature on non-compete clauses (and restrictive covenants in employment contracts generally) are mixed.”

So here are a few more questions that cannot possibly be resolved in a single blog post:

  1. Does the FTC have the authority to issue substantive (“legislative”) competition regulations? 
  2. Would a regulation restricting a common contracting practice across all occupations, industries, and income levels raise the major questions doctrine? (Ok, skipping ahead: Yes.)
  3. Does it matter, for the major questions doctrine or otherwise, that there’s a substantial body of federal statutory law regarding labor and employment and a federal agency (a good deal larger than the FTC) charged to enforce the law?
  4. Does it matter that the FTC simply doesn’t have the personnel (or congressionally appropriated budget) to enforce such a sweeping regulation?
    • Is the number of experienced labor lawyers currently employed as staff in the FTC’s Bureau of Competition nonzero? If so, what is it? 
  5. Does it matter that this is an active area of state-level legislation and enforcement?
  6. Do the effects of noncompetes vary as the terms of noncompetes vary, as suggested in the ABA comments linked above? And if so, on what dimensions?
    • Do the effects vary according to the market power of the employer in local (or other geographically relevant) labor markets and, if so, should that matter to an antitrust enforcer?
    • If the effects vary significantly, is a one-size-fits-all regulation the best path forward?
  7. Many published studies seem to report average effects of policy changes on, e.g., wages or worker mobility for some class of workers. Should we know more about the distribution of those effects before the FTC (or anyone else) adopts uniform federal regulations? 
  8. How well do we know the answer to the myriad questions raised by noncompetes? As the FTC working paper observes, many published studies seem to rely heavily on survey evidence on the incidence of noncompetes. Prior to adopting  a sweeping competition regulation, should the FTC use its 6b subpoena authority to gather direct evidence? Why hasn’t it?
  9. The FTC’s Bureau of Economics employs a large expert staff of research economists. Given the questions raised by the FTC Working Paper, how else might the FTC contribute to the state of knowledge of noncompete usage and effects before adopting a sweeping, nationwide prohibition? Are there lacunae in the literature that the FTC could fill? For example, there seem to be very few papers regarding the downstream effects on consumers, which might matter to consumers. And while we’re in labor markets, what about the relationship between noncompetes and employment? 

Well, that’s a lot. In my defense, I’ll  note that the FTC’s November 2022 Advance Notice of Proposed Rulemaking on “commercial surveillance” enumerated 95 complex questions for public comment. Which is more than nine. 

I didn’t even get to the once-again dismal ratings of FTC’s senior agency leadership in the 2022 OPM Federal Employee Viewpoint Survey. Last year’s results were terrible—a precipitous drop from 2020. This year’s results were worse. Worse yet, they show that last year’s results were not mere transient deflation in morale. But a discussion will have to wait for another blog post.

The Federal Trade Commission’s (FTC) Jan. 5 “Notice of Proposed Rulemaking on Non-Compete Clauses” (NPRMNCC) is the first substantive FTC Act Section 6(g) “unfair methods of competition” rulemaking initiative following the release of the FTC’s November 2022 Section 5 Unfair Methods of Competition Policy Statement. Any final rule based on the NPRMNCC stands virtually no chance of survival before the courts. What’s more, this FTC initiative also threatens to have a major negative economic-policy impact. It also poses an institutional threat to the Commission itself. Accordingly, the NPRMNCC should be withdrawn, or as a “second worst” option, substantially pared back and recast.

The NPRMNCC is succinctly described, and its legal risks ably summarized, in a recent commentary by Gibson Dunn attorneys: The proposal is sweeping in its scope. The NPRMNCC states that it “would, among other things, provide that it is an unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with a worker; to maintain with a worker a non-compete clause; or, under certain circumstances, to represent to a worker that the worker is subject to a non-compete clause.”

The Gibson Dunn commentary adds that it “would require employers to rescind all existing non-compete provisions within 180 days of publication of the final rule, and to provide current and former employees notice of the rescission.‎ If employers comply with these two requirements, the rule would provide a safe harbor from enforcement.”‎

As I have explained previously, any FTC Section 6(g) rulemaking is likely to fail as a matter of law. Specifically, the structure of the FTC Act indicates that Section 6(g) is best understood as authorizing procedural regulations, not substantive rules. What’s more, Section 6(g) rules raise serious questions under the U.S. Supreme Court’s nondelegation and major questions doctrines (given the breadth and ill-defined nature of “unfair methods of competition”) and under administrative law (very broad unfair methods of competition rules may be deemed “arbitrary and capricious” and raise due process concerns). The cumulative weight of these legal concerns “makes it highly improbable that substantive UMC rules will ultimately be upheld.

The legal concerns raised by Section 6(g) rulemaking are particularly acute in the case of the NPRMNCC, which is exceedingly broad and deals with a topic—employment-related noncompete clauses—with which the FTC has almost no experience. FTC Commissioner Christine Wilson highlights this legal vulnerability in her dissenting statement opposing issuance of the NPRMNCC.

As Andrew Mercado and I explained in our commentary on potential FTC noncompete rulemaking: “[a] review of studies conducted in the past two decades yields no uniform, replicable results as to whether such agreements benefit or harm workers.” In a comprehensive literature review made available online at the end of 2019, FTC economist John McAdams concluded that “[t]here is little evidence on the likely effects of broad prohibitions of non-compete agreements.” McAdams also commented on the lack of knowledge regarding the effects that noncompetes may have on ultimate consumers. Given these realities, the FTC would be particularly vulnerable to having a court hold that a final noncompete rule (even assuming that it somehow surmounted other legal obstacles) lacked an adequate factual basis, and thus was arbitrary and capricious.

The poor legal case for proceeding with the NPRMNCC is rendered even weaker by the existence of robust state-law provisions concerning noncompetes in almost every state (see here for a chart comparing state laws). Differences in state jurisprudence may enable “natural experimentation,” whereby changes made to state law that differ across jurisdictions facilitate comparisons of the effects of different approaches to noncompetes. Furthermore, changes to noncompete laws in particular states that are seen to cause harm, or generate benefits, may allow “best practices” to emerge and thereby drive welfare-enhancing reforms in multiple jurisdictions.

The Gibson Dunn commentary points out that, “[a]s a practical matter, the proposed [FTC noncompete] rule would override existing non-compete requirements and practices in the vast majority of states.” Unfortunately, then, the NPRMNCC would largely do away with the potential benefits of competitive federalism in the area of noncompetes. In light of that, federal courts might well ask whether Congress meant to give the FTC preemptive authority over a legal field traditionally left to the states, merely by making a passing reference to “mak[ing] rules and regulations” in Section 6(g) of the FTC Act. Federal judges would likely conclude that the answer to this question is “no.”

Economic Policy Harms

How much economic harm could an FTC rule on noncompetes cause, if the courts almost certainly would strike it down? Plenty.

The affront to competitive federalism, which would prevent optimal noncompete legal regimes from developing (see above), could reduce the efficiency of employment contracts and harm consumer welfare. It would be exceedingly difficult (if not impossible) to measure such harms, however, because there would be no alternative “but-for” worlds with differing rules that could be studied.

The broad ban on noncompetes predictably will prevent—or at least chill—the use of noncompete clauses to protect business-property interests (including trade secrets and other intellectual-property rights) and to protect value-enhancing investments in worker training. (See here for a 2016 U.S. Treasury Department Office of Economic Policy Report that lists some of the potential benefits of noncompetes.) The NPRMNCC fails to account for those and other efficiencies, which may be key to value-generating business-process improvements that help drive dynamic economic growth. Once again, however, it would be difficult to demonstrate the nature or extent of such foregone benefits, in the absence of “but-for” world comparisons.

Business-litigation costs would also inevitably arise, as uncertainties in the language of a final noncompete rule were worked out in court (prior to the rule’s legal demise). The opportunity cost of firm resources directed toward rule-related issues, rather than to business-improvement activities, could be substantial. The opportunity cost of directing FTC resources to wasteful noncompete-related rulemaking work, rather than potential welfare-enhancing endeavors (such as anti-fraud enforcement activity), also should not be neglected.

Finally, the substantial error costs that would attend designing and seeking to enforce a final FTC noncompete rule, and the affront to the rule of law that would result from creating a substantial new gap between FTC and U.S. Justice Department competition-enforcement regimes, merits note (see here for my discussion of these costs in the general context of UMC rulemaking).

Conclusion

What, then, should the FTC do? It should withdraw the NPRMNCC.

If the FTC is concerned about the effects of noncompete clauses, it should commission appropriate economic research, and perhaps conduct targeted FTC Act Section 6(b) studies directed at noncompetes (focused on industries where noncompetes are common or ubiquitous). In light of that research, it might be in position to address legal policy toward noncompetes in competition advocacy before the states, or in testimony before Congress.

If the FTC still wishes to engage in some rulemaking directed at noncompete clauses, it should consider a targeted FTC Act Section 18 consumer-protection rulemaking (see my discussion of this possibility, here). Unlike Section 6(g), the legality of Section 18 substantive rulemaking (which is directed at “unfair or deceptive acts or practices”) is well-established. Categorizing noncompete-clause-related practices as “deceptive” is plainly a nonstarter, so the Commission would have to bases its rulemaking on defining and condemning specified “unfair acts or practices.”

Section 5(n) of the FTC Act specifies that the Commission may not declare an act or practice to be unfair unless it “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.” This is a cost-benefit test that plainly does not justify a general ban on noncompetes, based on the previous discussion. It probably could, however, justify a properly crafted narrower rule, such as a requirement that an employer notify its employees of a noncompete agreement before they accept a job offer (see my analysis here).  

Should the FTC nonetheless charge forward and release a final competition rule based on the NPRMNCC, it will face serious negative institutional consequences. In the previous Congress, Sens. Mike Lee (R-Utah) and Chuck Grassley (R-Iowa) have introduced legislation that would strip the FTC of its antitrust authority (leaving all federal antitrust enforcement in DOJ hands). Such legislation could gain traction if the FTC were perceived as engaging in massive institutional overreach. An unprecedented Commission effort to regulate one aspect of labor contracts (noncompete clauses) nationwide surely could be viewed by Congress as a prime example of such overreach. The FTC should keep that in mind if it values maintaining its longstanding role in American antitrust-policy development and enforcement.

One of my favorite books is Thomas Sowell’s Knowledge and Decisions, in which he builds on Friedrich Hayek’s insight that knowledge is dispersed throughout society. Hayek’s insight that markets can bring dispersed but important knowledge to bear with substantial effectiveness is one that many of us, especially economists, pay lip service to, but it often gets lost in day-to-day debates about policy. Sowell uses Hayek’s insight to understand and critique social, economic, and political institutions, which he judges in terms of “what kinds of knowledge can be brought to bear and with what effectiveness.” 

I’m reminded of Sowell in witnessing the current debate surrounding the Federal Trade Commission’s (FTC) proposed rule to enact a nationwide ban on noncompetes in employment agreements. A major policy change like this obviously sets off debate. Among economists, the discussion surrounds economic arguments and empirical evidence on the effects of noncompetes. Among lawyers, it largely centers on the legality of the rule.

But all of the discussion seems to ignore Sowell’s insights. He writes:

In a world where people are preoccupied with arguing about what decision should be made on a sweeping range of issues, this book argues that the most fundamental question is not what decision to make but who is to make it—through what processes and under what incentives and constraints, and with what feedback mechanisms to correct the decision if it proves to be wrong. (emphasis added)

Once we recognize that knowledge doesn’t simply exist out in the ether for us all to grab, but depends instead on the institutions within which we operate, the outcome is going to hinge on who gets to decide and how their knowledge evolves. How easily can the decision maker respond to new information and update their beliefs? How easily can they make incremental changes to incremental information?

To take two extremes, stock markets are institutions where decision makers take account of new information by the minute, allowing for rapid and marginal changes in decisions. At the other extreme is the Supreme Court, where precedents take years or decades to overturn if they are based on information that becomes outdated.

Let’s accept for the sake of argument that all of the best experts today agree that noncompetes are a net negative for society. We have to deal with the fact that we can be proven wrong in the future, and different regimes will deal with that future change differently.

If implemented, the FTC’s total ban of noncompetes replaces the decision making of businesses and workers, as well as the oversight of state governments, with a one-size-fits-all approach. Under that new regime, we need to ask: How quickly will they respond to new information—for example, that it had destructive implications? How easily can they make incremental changes?

One may hope the FTC, as an expert-led agency, could easily adjust to incoming evidence. They will just follow the science! But that response would be self-contradictory here. The FTC just showed that it is happy to go from 0 to 100 with its rules. It went from doing hardly any work on noncompetes to a total ban. In no optimal policy model where the benevolent regulator is responding to information is that how a regulator would process and act on information.

This is part of a long-run trend in politics. Sowell again:

Even within democratic nations, the locus of decision making has drifted away from the individual, the family, and voluntary associations of various sorts, and toward government. And within government, it has moved away from elected officials subject to voter feedback, and toward more insulated governmental institutions, such as bureaucracies and the appointed judiciary.

We may want that. Not every decision should be left up to the individual. We have rights and policies that constrain individuals. The U.S. Constitution, for example, doesn’t allow states to regulate interstate commerce. But the takeaway is not that decentralization is always better. Rather, the point is that we need to consider the tradeoff.

[The following was prepared as a Gibson Dunn client alert by Rachel Brass, Svetlana Gans, Kristen Limarzi, Ilissa Samplin, Katherine V. A. Smith, Stephen Weissman, Chris Wilson, Jamie France, and Connor Leydecker. It is reprinted with permission here.]

On Jan. 5, 2023, the Federal Trade Commission (FTC) issued a Notice of Proposed Rulemaking (NPRM) to prohibit employers from entering non-compete clauses with workers.[1] The proposed rule would extend to all workers, whether paid or unpaid, and would require companies to rescind existing non-compete agreements within 180 days of publication of the final rule.[2] The FTC will soon publish the NPRM in the Federal Register, triggering a 60-day public comment period.‎ The rule could be finalized by the end of the year; court challenges to the final rule are likely to follow.

The rule proposal follows recent FTC settlements with three companies and two individuals for allegedly illegal non-compete agreements imposed on workers—the first time the FTC has claimed that non-compete agreements constitute unfair methods of competition (UMC) under Section 5 of the FTC Act.‎

The Proposed Rule Would Broadly Ban Non-Compete Agreements

The proposed rule provides:

(a) Unfair methods of competition.  It is an unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with a worker; maintain with a worker a non-compete clause; or represent to a worker that the worker is subject to a non-compete clause where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete clause.‎[5]

The proposed rule broadly defines non-compete agreements as: “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.”‎ It proposes a functional test to determine if a clause is a non-compete provision: to qualify, the provision would have “the effect of prohibiting the worker from seeking or accepting employment with a person or operating a business after the conclusion of the worker’s employment with the employer.”‎ The proposed rule identifies two types of agreements that would constitute impermissible “non-competes”:

  • A nondisclosure agreement between an employer and a worker that is written so broadly that it effectively precludes the worker from working in the same field after the conclusion of the worker’s employment with the employer; and
  • A contractual term between an employer and a worker that requires the worker to pay the employer or a third-party entity for training costs if the worker’s employment terminates within a specified time period, where the required payment is not reasonably related to the costs the employer incurred for training the worker.‎

While the proposed rule would not expressly prohibit nondisclosure and intellectual-property agreements with employees, those agreements could be deemed impermissible non-competes if, pursuant to the provision excerpted above, they are deemed to be written “so broadly” that they “effectively preclude[ ] the worker from working in the same field.”‎ Further, the term “worker” would be defined as “a natural person who works, whether paid or unpaid, for an employer,” but would not include a franchisee in a franchisee/franchisor relationship.‎

Rescission Requirement, Safe Harbors, and Federal Preemption

The proposed rule would require employers to rescind all existing non-compete provisions within 180 days of publication of the final rule, and to provide current and former employees notice of the rescission.‎ If employers comply with these two requirements, the rule would provide a safe harbor from enforcement.‎ Further, the proposed rule would exempt from its scope certain non-competes entered in connection with the sale of businesses.‎ This exception also applies under California law, recognizing the need to protect the goodwill of a business.‎

The proposed rule would preempt all state and local rules inconsistent with its provisions, but not preempt State laws or regulations that provide greater protections.‎ As a practical matter, the proposed rule would override existing non-compete requirements and practices in the vast majority of states.

Concerned Parties Should Submit Public Comments

A 60-day public comment period will begin once the FTC publishes the NPRM in the Federal Register. After the notice-and-comment period concludes, the FTC will consider the comments and then publish a final version of the rule. Enforcement may begin 180 days after publication of the final rule (although, as discussed below, the final rule is likely to be challenged in court).

The final rule’s terms will depend in part on the FTC’s response to comments submitted by interested parties during this notice-and-comment period, including legal and practical objections raised to the rule. Thus, concerned parties are advised to submit robust comments thoroughly explaining their concerns, including potential costs and adverse effects.

Legal Challenges to the Rule Are Likely Once It Is Finalized

The proposed rule represents a significant expansion of the FTC’s regulatory reach in two respects: First, the Commission had not previously held non-compete agreements to be unfair methods of competition under the Federal Trade Commission Act, until its recently announced settlements. Second, substantial doubt exists that the FTC possesses rulemaking authority in this area.‎ As Gibson Dunn partners have explained and Commissioner Christine S. Wilson notes in her statement dissenting to the Notice of Proposed Rulemaking, any final rule is likely subject to several potentially significant legal challenges.  Commissioner Wilson notes three concerns:

  1. Congress did not intend to grant authority to promulgate substantive competition rules under the FTC Act provisions on which the FTC purports to rely to promulgate the proposed rule.‎
  2. The rule may exceed the limits imposed by the Supreme Court’s major questions‎ doctrine.
  3. The rule may exceed the limits imposed by the Supreme Court’s nondelegation doctrine.

Takeaways

This new proposed rule is part of a larger trend toward more vigorous federal regulation of the employment relationship, including by the FTC, National Labor Relations Board, and the U.S. Department of Labor (DOL), as we have noted in previous client alerts addressing the FTC’s approach to no-poach and nonsolicit agreements, the DOL’s rulemaking on who qualifies as an independent contractor under the Fair Labor Standards Act (FLSA), and the FTC’s broader vision of its authority to address unfair methods of competition under Section 5.


[1] See also, the joint statement of Chair Lina Khan and Commissioners Rebecca Kelly Slaughter and Alvaro M. Bedoya, and the dissenting statement of Commissioner Christine S. Wilson.

[2] Notably, prior FTC workshops on this subject focused on low-wage employees, but this proposed rule goes beyond that scope. 

The business press generally describes the gig economy that has sprung up around digital platforms like Uber and TaskRabbit as a beneficial phenomenon, “a glass that is almost full.” The gig economy “is an economy that operates flexibly, involving the exchange of labor and resources through digital platforms that actively facilitate buyer and seller matching.”

From the perspective of businesses, major positive attributes of the gig economy include cost-effectiveness (minimizing costs and expenses); labor-force efficiencies (“directly matching the company to the freelancer”); and flexible output production (individualized work schedules and enhanced employee motivation). Workers also benefit through greater independence, enhanced work flexibility (including hours worked), and the ability to earn extra income.

While there are some disadvantages, as well, (worker-commitment questions, business-ethics issues, lack of worker benefits, limited coverage of personal expenses, and worker isolation), there is no question that the gig economy has contributed substantially to the growth and flexibility of the American economy—a major social good. Indeed, “[i]t is undeniable that the gig economy has become an integral part of the American workforce, a trend that has only been accelerated during the” COVID-19 pandemic.

In marked contrast, however, the Federal Trade Commission’s (FTC) Sept. 15 Policy Statement on Enforcement Related to Gig Work (“gig statement” or “statement”) is the story of a glass that is almost empty. The accompanying press release declaring “FTC to Crack Down on Companies Taking Advantage of Gig Workers” (since when is “taking advantage of workers” an antitrust or consumer-protection offense?) puts an entirely negative spin on the gig economy. And while the gig statement begins by describing the nature and large size of the gig economy, it does so in a dispassionate and bland tone. No mention is made of the substantial benefits for consumers, workers, and the overall economy stemming from gig work. Rather, the gig statement quickly adopts a critical perspective in describing the market for gig workers and then addressing gig-related FTC-enforcement priorities. What’s more, the statement deals in very broad generalities and eschews specifics, rendering it of no real use to gig businesses seeking practical guidance.

Most significantly, the gig statement suggests that the FTC should play a significant enforcement role in gig-industry labor questions that fall outside its statutory authority. As such, the statement is fatally flawed as a policy document. It provides no true guidance and should be substantially rewritten or withdrawn.

Gig Statement Analysis

The gig statement’s substantive analysis begins with a negative assessment of gig-firm conduct. It expresses concern that gig workers are being misclassified as independent contractors and are thus deprived “of critical rights [right to organize, overtime pay, health and safety protections] to which they are entitled under law.” Relatedly, gig workers are said to be “saddled with inordinate risks.” Gig firms also “may use transparent algorithms to capture more revenue from customer payments for workers’ services than customers or workers understand.”

Heaven forfend!

The solution offered by the gig statement is “scrutiny of promises gig platforms make, or information they fail to disclose, about the financial proposition of gig work.” No mention is made of how these promises supposedly made to workers about the financial ramifications of gig employment are related to the FTC’s statutory mission (which centers on unfair or deceptive acts or practices affecting consumers or unfair methods of competition).

The gig statement next complains that a “power imbalance” between gig companies and gig workers “may leave gig workers exposed to harms from unfair, deceptive, and anticompetitive practices and is likely to amplify such harms when they occur. “Power imbalance” along a vertical chain has not been a source of serious antitrust concern for decades (and even in the case of the Robinson-Patman Act, the U.S. Supreme Court most recently stressed, in 2005’s Volvo v. Reeder, that harm to interbrand competition is the key concern). “Power imbalances” between workers and employers bear no necessary relation to consumer welfare promotion, which the Supreme Court teaches is the raison d’etre of antitrust. Moreover, the FTC does not explain why unfair or deceptive conduct likely follows from the mere existence of substantial bargaining power. Such an unsupported assertion is not worthy of being included in a serious agency-policy document.

The gig statement then engages in more idle speculation about a supposed relationship between market concentration and the proliferation of unfair and deceptive practices across the gig economy. The statement claims, without any substantiation, that gig companies in concentrated platform markets will be incentivized to exert anticompetitive market power over gig workers, and thereby “suppress wages below competitive rates, reduce job quality, or impose onerous terms on gig workers.” Relatedly, “unfair and deceptive practices by one platform can proliferate across the labor market, creating a race to the bottom that participants in the gig economy, and especially gig workers, have little ability to avoid.” No empirical or theoretical support is advanced for any of these bald assertions, which give the strong impression that the commission plans to target gig-economy companies for enforcement actions without regard to the actual facts on the ground. (By contrast, the commission has in the past developed detailed factual records of competitive and/or consumer-protection problems in health care and other important industry sectors as a prelude to possible future investigations.)

The statement then launches into a description of the FTC’s gig-economy policy priorities. It notes first that “workers may be deprived of the protections of an employment relationship” when gig firms classify them as independent contractors, leading to firms’ “disclosing [of] pay and costs in an unfair and deceptive manner.” What’s more, the FTC “also recognizes that misleading claims [made to workers] about the costs and benefits of gig work can impair fair competition among companies in the gig economy and elsewhere.”

These extraordinary statements seem to be saying that the FTC plans to closely scrutinize gig-economy-labor contract negotiations, based on its distaste for independent contracting (which it believes should be supplanted by employer-employee relationships, a question of labor law, not FTC law). Nowhere is it explained where such a novel FTC exercise of authority comes from, nor how such FTC actions have any bearing on harms to consumer welfare. The FTC’s apparent desire to force employment relationships upon gig firms is far removed from harm to competition or unfair or deceptive practices directed at consumers. Without more of an explanation, one is left to conclude that the FTC is proposing to take actions that are far beyond its statutory remit.

The gig statement next tries to tie the FTC’s new gig program to violations of the FTC Act (“unsubstantiated claims”); the FTC’s Franchise Rule; and the FTC’s Business Opportunity Rule, violations of which “can trigger civil penalties.” The statement, however, lacks any sort of logical, coherent explanation of how the new enforcement program necessarily follows from these other sources of authority. While a few examples of rules-based enforcement actions that have some connection to certain terms of employment may be pointed to, such special cases are a far cry from any sort of general justification for turning the FTC into a labor-contracts regulator.

The statement then moves on to the alleged misuse of algorithmic tools dealing with gig-worker contracts and supervision that may lead to unlawful gig-worker oversight and termination. Once again, the connection of any of this to consumer-welfare harm (from a competition or consumer-protection perspective) is not made.

The statement further asserts that FTC Act consumer-protection violations may arise from “nonnegotiable” and other unfair contracts. In support of such a novel exercise of authority, however, the FTC cites supposedly analogous “unfair” clauses found in consumer contracts with individuals or small-business consumers. It is highly doubtful that these precedents support any FTC enforcement actions involving labor contracts.

Noncompete clauses with individuals are next on the gig statement’s agenda. It is claimed that “[n]on-compete provisions may undermine free and fair labor markets by restricting workers’ ability to obtain competitive offers for their services from existing companies, resulting in lower wages and degraded working conditions. These provisions may also raise barriers to entry for new companies.” The assertion, however, that such clauses may violate Section 1 of the Sherman Act or Section 5 of the FTC Act’s bar on unfair methods of competition, seems dubious, to say the least. Unless there is coordination among companies, these are essentially unilateral contracting practices that may have robust efficiency explanations. Making out these practices to be federal antitrust violations is bad law and bad policy; they are, in any event, subject to a wide variety of state laws.

Even more problematic is the FTC’s claim that a variety of standard (typically efficiency-seeking) contract limitations, such as nondisclosure agreements and liquidated damages clauses, “may be excessive or overbroad” and subject to FTC scrutiny. This preposterous assertion would make the FTC into a second-guesser of common labor contracts (a federal labor-contract regulator, if you will), a role for which it lacks authority and is entirely unsuited. Turning the FTC into a federal labor-contract regulator would impose unjustifiable uncertainty costs on business and chill a host of efficient arrangements. It is hard to take such a claim of power seriously, given its lack of any credible statutory basis.

The final section of the gig statement dealing with FTC enforcement (“Policing Unfair Methods of Competition That Harm Gig Workers”) is unobjectionable, but not particularly informative. It essentially states that the FTC’s black letter legal authority over anticompetitive conduct also extends to gig companies: the FTC has the authority to investigate and prosecute anticompetitive mergers; agreements among competitors to fix terms of employment; no-poach agreements; and acts of monopolization and attempted monopolization. (Tell us something we did not know!)

The fact that gig-company workers may be harmed by such arrangements is noted. The mere page and a half devoted to this legal summary, however, provides little practical guidance for gig companies as to how to avoid running afoul of the law. Antitrust policy statements may be excused if they provided less detailed guidance than antitrust guidelines, but it would be helpful if they did something more than provide a capsule summary of general American antitrust principles. The gig statement does not pass this simple test.

The gig statement closes with a few glittering generalities. Cooperation with other agencies is highlighted (for example, an information-sharing agreement with the National Labor Relations Board is described). The FTC describes an “Equity Action Plan” calling for a focus on how gig-economy antitrust and consumer-protection abuses harm underserved communities and low-wage workers.

The FTC finishes with a request for input from the public and from gig workers about abusive and potentially illegal gig-sector conduct. No mention is made of the fact that the FTC must, of course, conform itself to the statutory limitations on its jurisdiction in the gig sector, as in all other areas of the economy.

Summing Up the Gig Statement

In sum, the critical flaw of the FTC’s gig statement is its focus on questions of labor law and policy (including the question of independent contractor as opposed to employee status) that are the proper purview of federal and state statutory schemes not administered by the Federal Trade Commission. (A secondary flaw is the statement’s unbalanced portrayal of the gig sector, which ignores its beneficial aspects.) If the FTC decides that gig-economy issues deserve particular enforcement emphasis, it should (and, indeed, must) direct its attention to anticompetitive actions and unfair or deceptive acts or practices that harm consumers.

On the antitrust side, that might include collusion among gig companies on the terms offered to workers or perhaps “mergers to monopoly” between gig companies offering a particular service. On the consumer-protection side, that might include making false or materially misleading statements to consumers about the terms under which they purchase gig-provided services. (It would be conceivable, of course, that some of those statements might be made, unwittingly or not, by gig independent contractors, at the behest of the gig companies.)

The FTC also might carry out gig-industry studies to identify particular prevalent competitive or consumer-protection harms. The FTC should not, however, seek to transform itself into a gig-labor-market enforcer and regulator, in defiance of its lack of statutory authority to play this role.

Conclusion

The FTC does, of course, have a legitimate role to play in challenging unfair methods of competition and unfair acts or practices that undermine consumer welfare wherever they arise, including in the gig economy. But it does a disservice by focusing merely on supposed negative aspects of the gig economy and conjuring up a gig-specific “parade of horribles” worthy of close commission scrutiny and enforcement action.

Many of the “horribles” cited may not even be “bads,” and many of them are, in any event, beyond the proper legal scope of FTC inquiry. There are other federal agencies (for example, the National Labor Relations Board) whose statutes may prove applicable to certain problems noted in the gig statement. In other cases, statutory changes may be required to address certain problems noted in the statement (assuming they actually are problems). The FTC, and its fellow enforcement agencies, should keep in mind, of course, that they are not Congress, and wishing for legal authority to deal with problems does not create it (something the federal judiciary fully understands).  

In short, the negative atmospherics that permeate the gig statement are unnecessary and counterproductive; if anything, they are likely to convince at least some judges that the FTC is not the dispassionate finder of fact and enforcer of law that it claims to be. In particular, the judiciary is unlikely to be impressed by the FTC’s apparent effort to insert itself into questions that lie far beyond its statutory mandate.

The FTC should withdraw the gig statement. If, however, it does not, it should revise the statement in a manner that is respectful of the limits on the commission’s legal authority, and that presents a more dispassionate analysis of gig-economy business conduct.

Slow wage growth and rising inequality over the past few decades have pushed economists more and more toward the study of monopsony power—particularly firms’ monopsony power over workers. Antitrust policy has taken notice. For example, when the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) initiated the process of updating their merger guidelines, their request for information included questions about how they should respond to monopsony concerns, as distinct from monopoly concerns. ​

From a pure economic-theory perspective, there is no important distinction between monopsony power and monopoly power. If Armen is trading his apples in exchange for Ben’s bananas, we can call Armen the seller of apples or the buyer of bananas. The labels (buyer and seller) are kind of arbitrary. It doesn’t matter as a pure theory matter. Monopsony and monopoly are just mirrored images.

Some infer from this monopoly-monopsony symmetry, however, that extending antitrust to monopsony power will be straightforward. As a practical matter for antitrust enforcement, it becomes less clear. The moment we go slightly less abstract and use the basic models that economists use, monopsony is not simply the mirror image of monopoly. The tools that antitrust economists use to identify market power differ in the two cases.

Monopsony Requires Studying Output

Suppose that the FTC and DOJ are considering a proposed merger. For simplicity, they know that the merger will generate efficiency gains (and they want to allow it) or market power (and they want to stop it) but not both. The challenge is to look at readily available data like prices and quantities to decide which it is. (Let’s ignore the ideal case that involves being able to estimate elasticities of demand and supply.)

In a monopoly case, if there are efficiency gains from a merger, the standard model has a clear prediction: the quantity sold in the output market will increase. An economist at the FTC or DOJ with sufficient data will be able to see (or estimate) the efficiencies directly in the output market. Efficiency gains result in either greater output at lower unit cost or else product-quality improvements that increase consumer demand. Since the merger lowers prices for consumers, the agencies (assume they care about the consumer welfare standard) will let the merger go through, since consumers are better off.

In contrast, if the merger simply enhances monopoly power without efficiency gains, the quantity sold will decrease, either because the merging parties raise prices or because quality declines. Again, the empirical implication of the merger is seen directly in the market in question. Since the merger raises prices for consumers, the agencies (assume they care about the consumer welfare standard) will let not the merger go through, since consumers are worse off. In both cases, you judge monopoly power by looking directly at the market that may or may not have monopoly power.

Unfortunately, the monopsony case is more complicated. Ultimately, we can be certain of the effects of monopsony only by looking at the output market, not the input market where the monopsony power is claimed.

To see why, consider again a merger that generates either efficiency gains or market (now monopsony) power. A merger that creates monopsony power will necessarily reduce the prices and quantity purchased of inputs like labor and materials. An overly eager FTC may see a lower quantity of input purchased and jump to the conclusion that the merger increased monopsony power. After all, monopsonies purchase fewer inputs than competitive firms.

Not so fast. Fewer input purchases may be because of efficiency gains. For example, if the efficiency gain arises from the elimination of redundancies in a hospital merger, the hospital will buy fewer inputs, hire fewer technicians, or purchase fewer medical supplies. This may even reduce the wages of technicians or the price of medical supplies, even if the newly merged hospitals are not exercising any market power to suppress wages.

The key point is that monopsony needs to be treated differently than monopoly. The antitrust agencies cannot simply look at the quantity of inputs purchased in the monopsony case as the flip side of the quantity sold in the monopoly case, because the efficiency-enhancing merger can look like the monopsony merger in terms of the level of inputs purchased.

How can the agencies differentiate efficiency-enhancing mergers from monopsony mergers? The easiest way may be for the agencies to look at the output market: an entirely different market than the one with the possibility of market power. Once we look at the output market, as we would do in a monopoly case, we have clear predictions. If the merger is efficiency-enhancing, there will be an increase in the output-market quantity. If the merger increases monopsony power, the firm perceives its marginal cost as higher than before the merger and will reduce output. 

In short, as we look for how to apply antitrust to monopsony-power cases, the agencies and courts cannot look to the input market to differentiate them from efficiency-enhancing mergers; they must look at the output market. It is impossible to discuss monopsony power coherently without considering the output market.

In real-world cases, mergers will not necessarily be either strictly efficiency-enhancing or strictly monopsony-generating, but a blend of the two. Any rigorous consideration of merger effects must account for both and make some tradeoff between them. The question of how guidelines should address monopsony power is inextricably tied to the consideration of merger efficiencies, particularly given the point above that identifying and evaluating monopsony power will often depend on its effects in downstream markets.

This is just one complication that arises when we move from the purest of pure theory to slightly more applied models of monopoly and monopsony power. Geoffrey Manne, Dirk Auer, Eric Fruits, Lazar Radic and I go through more of the complications in our comments summited to the FTC and DOJ on updating the merger guidelines.

What Assumptions Make the Difference Between Monopoly and Monopsony?

Now that we have shown that monopsony and monopoly are different, how do we square this with the initial observation that it was arbitrary whether we say Armen has monopsony power over apples or monopoly power over bananas?

There are two differences between the standard monopoly and monopsony models. First, in a vast majority of models of monopsony power, the agent with the monopsony power is buying goods only to use them in production. They have a “derived demand” for some factors of production. That demand ties their buying decision to an output market. For monopoly power, the firm sells the goods, makes some money, and that’s the end of the story.

The second difference is that the standard monopoly model looks at one output good at a time. The standard factor-demand model uses two inputs, which introduces a tradeoff between, say, capital and labor. We could force monopoly to look like monopsony by assuming the merging parties each produce two different outputs, apples and bananas. An efficiency gain could favor apple production and hurt banana consumers. While this sort of substitution among outputs is often realistic, it is not the standard economic way of modeling an output market.

[The tenth entry in our FTC UMC Rulemaking symposium comes from guest contributor Kacyn H. Fujii, a 2022 J.D. Candidate at the University of Michigan Law School. Kacyn’s entry comes via Truth on the Market‘s “New Voices” competition, open to untenured or aspiring academics (including students and fellows). You can find other posts at the symposium page here. Truth on the Market also invites academics, practitioners, and other antitrust/regulation commentators to send us 1,500-4,000 word responses for potential inclusion in the symposium.]

On July 9, 2021, President Joe Biden issued an executive order asking the Federal Trade Commission (FTC) to “curtail the unfair use of noncompete clauses and other clauses or agreements that may unfairly limit worker mobility.” This executive order raises two questions. First, does the FTC have the authority to issue such a rule? And second, is FTC rulemaking a better solution than adjudication to solve the widespread use of noncompetes? This post contends that the FTC possesses rulemaking authority and that FTC rulemaking is a better solution than adjudication for the problem of noncompete use, especially for low-wage workers.

FTC’s Rulemaking Authority

In 1973, the U.S. Court of Appeals for the D.C. Circuit in National Petroleum Refiners Association v. FTC held that the Federal Trade Commission Act permitted the FTC to promulgate rules under its unfair methods of competition (UMC) authority. Specifically, it interpreted Section 6(g), which gives the FTC the authority “to make rules and regulations for the purpose of carrying out the provisions in this subchapter,” to allow rulemaking to carry out the FTC’s Section 5 authority. In his remarks at the 2020 FTC workshop on noncompetes, Richard Pierce of George Washington University School of Law argued that no court today would follow National Petroleum’s reasoning, even going so far as to call its logic “preposterous.” BYU Law’s Aaron Nielson agreed that some of National Petroleum’s reasoning was outdated but conceded that its judgment might have been correct. Meanwhile, FTC Chair Lina Khan and former FTC Commissioner Rohit Chopra have spoken in favor of the FTC’s competition-rulemaking authority, both from a legal and policy perspective.

National Petroleum’s focus on text is consistent with the approaches that courts today take. The court first addressed appellees’ argument that the FTC may carry out Section 5 only through adjudication, because adjudication was the only form of implementation explicitly mentioned in Section 5. The D.C. Circuit noted that, although Section 5(b) granted the FTC adjudicative authority, nothing in the text limited the FTC only to adjudication as a means to implement Section 5’s substantive protections. It dismissed the appellee’s argument that expressio unius meant that adjudication was the only mechanism the agency had available to implement Section 5. The D.C. Circuit also rejected the district court’s interpretation of the legislative history, because it was too ambiguous to find Congress’s “specific intent.” Similar to the approach courts take today, National Petroleum gave the text primacy over legislative history, putting significant weight on the fact that the language of Sections 5 and 6(g) is broad.

It is true that, as Nielson notes, courts today would not so readily dismiss employing canons like expressio unius. But courts today would not necessarily employ expressio unius either. The language of Section 6(g) authorizing FTC use of rulemaking is clear and broad, expressly including Section 5 among the sections the FTC may implement through rulemaking, so Congress may have not thought it necessary to explicitly mention rulemaking in Section 5. Given how clear the language is, it also does not seem so farfetched that a court today would decide to not apply the expressio unius canon to imply an exception to the language. As the Court has commented in rejecting the expressio unius canon’s implications, “the force of any negative implication [from this canon] depends on context,” and can be negated by indications that an enactment was “not meant to signal any exclusion.”

Others argue that National Petroleum’s interpretation of Sections 5 and 6(g) would not hold up in light of newer interpretive moves deployed by courts. For example, former FTC Commissioner Maureen Ohlhausen and former Assistant Attorney General James Rill contend that the FTC should not have broad competition-rulemaking authority because of the “elephants-in-mouseholes” doctrine articulated in Whitman v. American Trucking. They invoke AMG Capital Management v. FTC as evidence that the Court is wary about “allow[ing] a small statutory tail to wag a very large dog.” The Court in AMG considered whether Section 13(b) of the FTC Act, which expressly authorized the FTC to seek injunctive relief from the federal courts, also permitted the agency to seek monetary damages. The Court concluded that the FTC could not seek monetary damages from courts. Permitting this would allow the FTC to bypass its administrative process altogether, thus contravening Congress’ goals by failing to “produce[] a coherent enforcement scheme.” However, Sections 5 and 6(g) are distinguishable from the statutory provision at issue in AMG. Unlike Section 13(b), which did not explicitly grant the FTC authority to seek monetary damages, Section 6(g) does explicitly give the FTC rulemaking authority to carry out the other provisions of the Act with no limitations on this broad language.  Meanwhile, there is no “coherent enforcement scheme” that would be served by limiting Section 6 only to methods to carry out Section 5’s adjudicative authority. Rulemaking authority does not detract from the FTC’s ability to adjudicate.

One could also argue that, according to the “specific over the general” canon, adjudication should be the FTC’s primary implementation method: Section 5(b), which is very specific in its description of the FTC’s adjudicative authority, should govern over Section 6(g), which discusses rulemaking only in general language. But there is no inherent conflict between the general and specific provisions here. Even if adjudication was intended as the primary implementation method, Section 5 does not explicitly preclude rulemaking as an option in its text. There may be valid functional reasons that Congress would want an agency that acts primarily through adjudication to also have substantive rulemaking authority. National Petroleum itself observed that “the evolution of bright-line rules [through adjudication] is often a slow process” and that “legislative-type” rulemaking procedures allow the agency to consider “broad range of data and argument from all those potentially affected.” In addition, as Emily Bremer of Notre Dame Law School observes, Congress consistently sets more specific guidelines for adjudication to meet individual agency and program needs, resulting in “extraordinary procedural diversity” across adjudication regimes. The greater level of specificity with respect to adjudication in Section 5(b) of the FTC Act may simply reflect Congress’ perceived need to delineate adjudication regimes in further detail than it does for rulemaking.

In addition, some who are doubtful about the FTC’s rulemaking authority have cited legislative context. Specifically, Ohlhausen and Rill argue that the Magnuson-Moss Warranty Act demonstrates Congress’ concern with the FTC having expansive rulemaking power. Thus, broad competition-rulemaking authority would be inconsistent with the approach Congress took in Magnuson-Moss. However, the passage of Magnuson-Moss also implies that Congress thought the FTC had existing rulemaking power that Congress could limit—thus validating National Petroleum’s overall holding that the FTC did have rulemaking authority. In addition, Congress could have also extended Magnuson-Moss’s limits on rulemakings to competition-rulemaking authority but decided to apply it only to the FTC’s consumer-protection authority. This interpretation is supported by the text as well. The Magnuson-Moss provision expressly states that its changes “shall not affect any authority of the Commission to prescribe rules (including interpretive rules), and general statements of policy, with respect to unfair methods of competition in or affecting commerce.” Congress specifically exempted competition rulemaking from Magnuson-Moss’s additional procedural requirements. If anything, this demonstrates that Congress did not want to interfere with the FTC’s competition authority.

The history of the FTC Act also supports that Congress would not have wanted to create an expert agency limited only to adjudicative authority. The FTC Act was passed during a time of unprecedented business growth, in spite of the passage of the Sherman Act in 1890. More specifically, Congress enacted the FTC Act in response to Standard Oil. Standard Oil established rule-of-reason analysis that some decried as a judicial “power grab.” Even though members of Congress disagreed about the proper scope of the FTC’s authority, all of the proposed plans for the FTC reflected Congress’ deep objections to the existing common law approach to antitrust enforcement. Congress was concerned that the existing approach was “yielding a body of law that was inconsistent, unpredictable, and unmoored from congressional intent.” Its solution was to create the FTC. The legislative context supports interpreting the statute to give the FTC all of the tools—including rulemaking—to respond effectively to nascent antitrust threats.

Finally, the FTC’s historical reliance on adjudication does not mean that it lacks the authority to promulgate rules. Assuming the relevance of historical practice—an assumption AMG cast doubt upon when it spurned the FTC’s longstanding interpretation of the FTC Act—there are reasons that an agency may choose adjudication over rulemaking that have nothing to do with its views of its statutory authority. The FTC’s preference for adjudication may simply have reflected the policy-focused views of its leadership. For example, James Miller, who chaired the FTC from 1981 to 1985, had “fundamental objections to marketplace regulation through rulemaking” because he thought Congress would exert too much pressure on rulemaking efforts. He attempted to thwart ongoing rulemaking efforts and instead vowed to take an “aggressive” approach to enforcement through adjudication. But this does not mean he thought the FTC lacked the authority to promulgate rules at all. Over the past several decades, the courts and federal antitrust enforcers have taken a non-interventionist or laissez-faire approach to enforcement. The FTC’s history of not relying on rulemaking may simply be indicators of the agency’s policy preferences and not its views of its authority.

In short, National Petroleum’s interpretive moves are sound and its conclusion that the FTC possesses UMC-rulemaking authority should stand the test of time. 

Benefits of FTC Rulemaking for Curbing Non-Compete Use

President Biden’s executive order also raised the question of whether FTC rulemaking is the right tool to address the problem of liberal noncompete use. This post argues that FTC rulemaking would have tangible benefits over adjudication, especially for noncompetes that bind low-wage workers.

The Problem with Noncompetes

Noncompete clauses, which restrict where an employee may work after they leave their employer, have been used widely even in contexts divorced from the justifications for noncompetes. Typical justifications for noncompetes include protecting trade secrets and goodwill, increasing employers’ incentives to invest in training, and improving employers’ leverage in negotiations with employees. Despite these justifications, noncompetes are used for workers who have no access to trade secrets or customer lists. According to a survey conducted in 2014, 13.3% of workers that made $40,000 per-year or less were subject to a noncompete, and 33% of those workers reported being subject to a noncompete at some point in the past. Noncompete use reduces worker mobility, even for those workers not themselves bound by noncompetes. It also results in lower wages for those bound by noncompetes. Interestingly, these effects on worker mobility and wages are present even in states where noncompetes are unenforceable.

Although noncompetes are typically governed on the state level, the magnitude of noncompete use could pose an antitrust problem. Noncompetes help employers maintain “high levels of market concentration,” which “reduce[s] competition rather than spur[ring] innovation.” However, it can be very difficult for private parties and state enforcers to challenge noncompete use under antitrust law. One employer’s use of noncompetes is unlikely to have an appreciable difference on the labor market. The harm to labor markets is only detectable in aggregate, making it virtually impossible to succeed on an antitrust challenge against an employer’s use of noncompetes. Indeed, University of Chicago Law’s Eric Posner has observed that, as of 2020, there were “a grand total of zero cases in which an employee noncompete was successfully challenged under the antitrust laws.” According to Posner, courts either claim that noncompetes involve “de minimis” effects on competition or do not create “public” injuries for antitrust law to address.

And while there have been a handful of settlements between state attorneys general and companies that use noncompetes—like the settlement between then-New York Attorney General Barbara D. Underwood and WeWork in 2018—these settlements capture only the most egregious uses of noncompetes. There are likely many other companies who use noncompetes in anticompetitive ways, but they do not operate at such scale as to warrant an investigation. State attorneys general have resource constraints that limit them to challenge only the most harmful restraints on workers. Even if these cases went to trial, instead of settling, their precedential effect would thus set only the upper bound for what is an anticompetitive use of noncompete agreements.

Further, the FTC’s current approach of relying on adjudication is unlikely to be effective in curbing widespread noncompete use. Scholars have critiqued the FTC’s historical reliance on adjudication, saying that it has failed to generate “any meaningful guidance as to what constitutes an unfair method of competition.” Part of this is because antitrust law largely relies on rule-of-reason analysis, which involves a “broad and open-ended inquiry” into the competitive effects of particular conduct. Given the highly fact-specific nature of rule-of-reason analysis, the holding of one case can be difficult to extend to another and thus leads to problems in administrability and efficiency. Even judges “have criticized antitrust standards for being highly difficult to administer.” Reliance on the rule of reason also leads to a lack of predictability, which means that market participants and the public have less notice about what the law is.

In addition, private parties cannot litigate UMC claims under Section 5 of the FTC Act; the agency itself must determine what counts as an unfair method of competition. Perhaps because of resource constraints, the FTC has only brought a “modest number” of cases that “provide an insufficient basis from which to attempt to generate substantive rules defining the Commission’s Section 5 authority.”

Benefits of Rulemaking

FTC rulemaking under its UMC authority would avoid many of the problems of a case-by-case approach. First, rulemaking would provide clarity and efficiency. For example, a rule could declare it illegal for employers to use noncompetes for employees making under the median national income. Such a rule clearly articulates the FTC’s policy and is easy to apply. This demonstrates how rulemaking can be more efficient than adjudication. In order to implement a similar policy through adjudication, the FTC may have to bring many cases covering various industries and defendants that employ low-wage workers, given the nature of rule-of-reason analysis.

Rulemaking is also more participatory than adjudication. Interested parties and the general public can weigh in on proposed rules through the notice-and-comment process. Adjudication involves only those who are party to the suit, leaving “broad swaths of market participants watching from the sidelines, lacking an opportunity to contribute their perspective, their analysis, or their expertise, except through one-off amicus briefs.” However, low-wage workers are unlikely to have the resources required to prepare and submit an amicus brief and may not even be aware of the litigation in the first place. In contrast, it is much easier for low-wage workers or their future employers to participate in the notice-and-comment process, which only requires submitting a comment through an online form. Unions or employee-rights organizations can help to facilitate worker participating in rulemaking as well.

A uniform approach through rulemaking means that more workers will be on notice of the FTC’s policy. Worker education is an important factor in solving the problem. Even in states where noncompetes are not enforceable, employers still use and threaten to enforce noncompetes, which reduces worker mobility. A clear policy articulated by the FTC may help workers to understand their rights, perhaps because a national rule will get more media attention than individual adjudications.

Although it may be true that rulemaking is, in general, less adaptable than adjudication, there may be a category of cases where our understanding is unlikely to change over time. For example, agreements to fix prices are so clearly anticompetitive that they are per se illegal under the antitrust laws. Our understanding of the anticompetitive nature of price fixing is highly unlikely to change over time. 

Noncompetes for low-wage workers should be in this category of cases. This use of noncompetes is divorced from traditional justifications for noncompetes. The nature of the work for low-wage workers—say, for janitors or cashiers—is unlikely to ever require significant employer resources for training or disclosure of customer lists or trade secrets. Given the negative effects that noncompetes can have on mobility and wages, even in states where they are not enforceable, they clearly do more harm than good to the labor market. It is difficult to imagine that market conditions or economic understanding would change this.

Further, even though rulemaking can take time, the FTC’s adjudicative process is not necessarily much better. In 2015, adjudications through the FTC’s administrative process typically took two years. Former FTC Commissioner Philip Elman once observed that case-by-case adjudication “may simply be too slow and cumbersome to produce specific and clear standards adequate to the needs of businessmen, the private bar, and the government agencies.” Even if rulemaking takes longer, it may still be more efficient because of a rule’s ability to apply across the board to different industries and types of workers. It may also be more efficient because it is better able to capture all of the relevant considerations through the notice-and-comment process.

It is true that some states already have a bright-line rule against noncompetes by making noncompetes unenforceable. Even so, there is value in establishing a bright-line rule through rulemaking at a federal level: this provides greater uniformity across states. In addition, rulemaking could have some value if it is used to establish notice requirements—for example, the FTC could promulgate a rule requiring employers to notify employees of the relevant noncompete laws. Notice requirements are one example where case-by-case adjudication would be especially ineffective.

Conclusion

In certain contexts, rulemaking is a better alternative to adjudication. Noncompete use for low-wage workers is one such example. Rulemaking provides more uniformity, notice, and opportunity to participate for low-wage workers than adjudication does. And given that both state noncompete law and federal antitrust law require such fact-specific inquiries, rulemaking is also more efficient than adjudication. Thus, the FTC should use its competition-rulemaking authority to ban noncompete use for low-wage workers instead of relying only on adjudication.

The Biden Administration’s July 9 Executive Order on Promoting Competition in the American Economy is very much a mixed bag—some positive aspects, but many negative ones.

It will have some positive effects on economic welfare, to the extent it succeeds in lifting artificial barriers to competition that harm consumers and workers—such as allowing direct sales of hearing aids in drug stores—and helping to eliminate unnecessary occupational licensing restrictions, to name just two of several examples.

But it will likely have substantial negative effects on economic welfare as well. Many aspects of the order appear to emphasize new regulation—such as Net Neutrality requirements that may reduce investment in broadband by internet service providers—and imposing new regulatory requirements on airlines, pharmaceutical companies, digital platforms, banks, railways, shipping, and meat packers, among others. Arbitrarily imposing new rules in these areas, without a cost-beneficial appraisal and a showing of a market failure, threatens to reduce innovation and slow economic growth, hurting producers and consumer. (A careful review of specific regulatory proposals may shed greater light on the justifications for particular regulations.)

Antitrust-related proposals to challenge previously cleared mergers, and to impose new antitrust rulemaking, are likely to raise costly business uncertainty, to the detriment of businesses and consumers. They are a recipe for slower economic growth, not for vibrant competition.

An underlying problem with the order is that it is based on the false premise that competition has diminished significantly in recent decades and that “big is bad.” Economic analysis found in the February 2020 Economic Report of the President, and in other economic studies, debunks this flawed assumption.

In short, the order commits the fundamental mistake of proposing intrusive regulatory solutions for a largely nonexistent problem. Competitive issues are best handled through traditional well-accepted antitrust analysis, which centers on promoting consumer welfare and on weighing procompetitive efficiencies against anticompetitive harm on a case-by-case basis. This approach:

  1. Deals effectively with serious competitive problems; while at the same time
  2. Cabining error costs by taking into account all economically relevant considerations on a case-specific basis.

Rather than using an executive order to direct very specific regulatory approaches without a strong economic and factual basis, the Biden administration would have been better served by raising a host of competitive issues that merit possible study and investigation by expert agencies. Such an approach would have avoided imposing the costs of unwarranted regulation that unfortunately are likely to stem from the new order.

Finally, the order’s call for new regulations and the elimination of various existing legal policies will spawn matter-specific legal challenges, and may, in many cases, not succeed in court. This will impose unnecessary business uncertainty in addition to public and private resources wasted on litigation.

[TOTM: The following is part of a blog series by TOTM guests and authors on the law, economics, and policy of the ongoing COVID-19 pandemic. The entire series of posts is available here.

This post is authored by Oscar Súmar, Dean of the Law School of the Scientific University of the South (Peru)).]

Peru’s response to the pandemic has been one of the most radical in Latin America: Restrictions were imposed sooner, lasted longer and were among the strictest in the region. Peru went into lockdown on March 15 after only 71 cases had been reported.  Along with the usual restrictions (temporary restaurant and school closures), the Peruvian government took other measures such as bans on the use of private vehicles and the mandatory nightly curfews. For a time, there even were gender-based movement restrictions: men and women were allowed out on different days.

A few weeks into the lockdown, it became obvious that these measures were not flattening the curve of infections. But instead of reconsidering its strategy, the government insisted on the same path, with depressing results. Peru is one of the world’s worst hit countries by Covid-19, with 300k total cases by July 4th, 2020 and one of the countries with the highest “excess of deaths,” reaching 140%. Peru’s government has tried a rich country’s response, despite the fact that Peru lacks the institutions and wealth to make that possible.

The Peruvian response to coronavirus can be attributed to three factors. One, paternalism is popular in Peru and arguments for liberty are ignored. This is confirmed by the fact that President Vizcarra enjoys to this day a great deal of popularity thanks to this draconian lockdown even when the government has repeatedly blamed people’s negligence as the main cause of contagion. Two, government officials have socialistic tendencies. For instance, the Prime Minister – Mr. Zeballos – used to speak freely about price regulations and nationalization, even before the pandemic. And three, Peru’s health system is one of the worst in the region. It was foreseeable that our health system would be overwhelmed in the first few weeks, so our government decided to go into early lockdown.

Peru has also launched one of the most aggressive economic relief programs in the world, equivalent to 12% of its GDP. This program included a “universal bond” for poor families, as well as a loan program for small, medium and large businesses. The program was praised by the media around the world. Despite this programme, Peru has been one of the worst-hit countries in the world in economic terms. The World Bank predicts that Peru will be the country with the biggest GDP contraction in the region.

If anything, Peru played the crisis by the book. But Peru´s lack of strong, legitimate and honest institutions have made its policies ineffectual. Just few months prior to the beginning of the pandemic, President Vizcarra dissolved the Congress. And Peru has been engulfed in a far-reaching corruption scandal for years. Only two years ago, former president Pedro Pablo Kuczynski resigned the presidency being directly implicated in the scandal, and his vice president at the time, Martin Vizcarra, took over. Much of Peru’s political and business elite have also been implicated in this scandal, with members of the elite summoned daily to the criminal prosecutor’s office for questioning.

However, if we want to understand the lack of strong institutions in Peru – and how this affected our response to the pandemic – we need to go back even further. In the 1980s, after having lived through a socialist military dictatorship, a young candidate named Alan Garcia was democratically elected as president. But during Garcia´s presidency, Peru achieved a trillion-dollar foreign debt, record levels of inflation, and imposed price controls and nationalizations. Peru fought a losing war against an armed Marxist terrorist group. By 1990, Peru was on the edge of the abyss. In the 1990 presidential campaign, Peruvians had to decide between a celebrated libertarian intellectual with little political experience, the novelist Mario Vargas Llosa, and Alberto Fujimori, a political “outsider” with rather unknown ideas but an aura of pragmatism over his head. We chose the latter.

Fujimori’s two main goals were to end domestic terrorism and to stabilize Peru’s ruined economy. This second task was achieved by following the Washington Consensus receipt: changing the Constitution after a self-inflicted coup d’état. The Consensus has been deemed as a “neoliberal” group of policies, but was really the product of a decades-long consensus among World Bank experts about policies that almost all mainstream economists favor. The policies included were privatization, deregulation, free trade, monetary stability, control over borrowing, and a focusing of public spending on health, education and infrastructure. A secondary part of the recommendations was aimed at institutional reform, poverty alleviation and the reform of tax and labor laws.

The implementation of the Consensus by Fujimori and subsequent governments was a mix of the actual “structural adjustments” recommended by the Bank and systemic over-regulation, mercantilism, and corruption. Every Peruvian president since 1990 is either currently being investigated or has been charged with corruption.

Although Peru’s GDP increased by more than 5% per year for several years since 1990, and poverty numbers have shrunk more than 50% in the last decade, other problems have remained. People have no access to decent healthcare; basic education in Peru is one of the worst in the world; and, more than half of the population does not have access to clean drinking water. Also, informality remains one of our biggest problems since the tax and labor reforms didn’t take place. Our tax base is very small, and our labor legislation is among the costliest in Latin America.

In Peruvian eyes, this is what “neoliberalism” looks like. Peru was good at implementing many of the high-level reforms, but not the detailed and complex institutional ones. The Consensus assumed the coexistence of free market institutions and measures of social assistance. Peru had some of these, but not enough. Even the reforms that did take place weren´t legitimate or part of our actual social consensus.

Taking advantage of people´s discontent, now, some leftist politicians, journalists, academics and activists want nothing more than to return to our previous interventionist Constitution and to socialism. Peruvian people are crying out for change. If the current situation is partially explained by our implementation of the Washington Consensus and that Consensus is deemed “neoliberal”, it´s no surprise that “change” is understood as going back to a more interventionist regime. Our current situation could be seen as the result of people demanding more government intervention, with the government and Congress simply meeting that demand, with no institutional framework to resist this.

The health crisis we are currently experiencing highlights the cost of Peru’s lack of strong institutions. Peru had one of the most ill-prepared public healthcare systems in the World at the beginning of the pandemic, with just 100 intensive care units. But there is virtually no private alternative, because that is so heavily regulated, and what exists is mostly the preserve of the elite. So, instead of working to improve the public system or promote more competition in the private sector, the government threatened clinics with a takeover.

The Peruvian government was unable to deliver policies that matched the real conditions of its population. We have, in effect, the lockdown of a rich country with few of the conditions that have allowed them to work. Inner-city poverty and a large informal economy (at an estimated 70% of Peru’s economy) made the lockdown a health and economic trap for the majority of the population (this study of Norma Loayza is very illustrative).

Incapable of facing the truth about Peru’s ability to withstand a lockdown, government officials relied on regulation to try to reshape reality to their wishes. The result is 20-40 pages of “protocols” to be fulfilled by small companies, completely ignored by the informal 70% of the economy. In some cases, these regulations were obvious examples of rent-seeking as well. For example, only firms with 1 million soles (approximately 300,000 USD) in sales in the past year and with at least three physical branches were allowed to do business online during the lockdown.

Even after the lockdown has been officially terminated since July 1st, the government must approve every industry in order to operate again. At the same time, our Congress has passed legislation prohibiting toll collection (even when is a contractual agreement); it has criminalized “hoarding” and restated “speculation” as a felony crime; and a proposal to freeze all financial debts. Some economic commentators argue that in Peru the “populist virus” is even worse than Covid-19. Peru’s failure in dealing with the virus must be understood in light of its long history of interventionist governments that have let economic sclerosis set in through overregulation and done little to build up the kinds of institutions that would allow a pandemic response that suits Peru to work. Our lack of strong institutions, confidence in the market economy, and human capital in the public sector has put us in an extremely fragile position to fight the virus.

[TOTM: The following is part of a blog series by TOTM guests and authors on the law, economics, and policy of the ongoing COVID-19 pandemic. The entire series of posts is available here.

This post is authored by John Newman, Associate Professor, University of Miami School of Law; Advisory Board Member, American Antitrust Institute; Affiliated Fellow, Thurman Arnold Project, Yale; Former Trial Attorney, DOJ Antitrust Division.)

Cooperation is the basis of productivity. The war of all against all is not a good model for any economy.

Who said it—a rose-emoji Twitter Marxist, or a card-carrying member of the laissez faire Chicago School of economics? If you guessed the latter, you’d be right. Frank Easterbrook penned these words in an antitrust decision written shortly after he left the University of Chicago to become a federal judge. Easterbrook’s opinion, now a textbook staple, wholeheartedly endorsed a cooperative agreement between two business owners not to compete with each another.

But other enforcers and judges have taken a far less favorable view of cooperation—particularly when workers are the ones cooperating. A few years ago, in an increasingly rare example of interagency agreement, the DOJ and FTC teamed up to argue against a Seattle ordinance that would have permitted drivers to cooperatively bargain with Uber and Lyft. Why the hostility from enforcers? “Competition is the lynchpin of the U.S. economy,” explained Acting FTC Chairman Maureen Ohlhausen.

Should workers be able to cooperate to counter concentrated corporate power? Or is bellum omnium contra omnes truly the “lynchpin” of our industrial policy?

The coronavirus pandemic has thrown this question into sharper relief than ever before. Low-income workers—many of them classified as independent contractors—have launched multiple coordinated boycotts in an effort to improve working conditions. The antitrust agencies, once quick to condemn similar actions by Uber and Lyft drivers, have fallen conspicuously silent.

Why? Why should workers be allowed to negotiate cooperatively for a healthier workplace, yet not for a living wage? In a society largely organized around paying for basic social services, money is health—and even life itself.

Unraveling the Double Standard

Antitrust law, like the rest of industrial policy, involves difficult questions over which members of society can cooperate with one another. These laws allocate “coordination rights”. Before the coronavirus pandemic, industrial policy seemed generally to favor allocating these rights to corporations, while simultaneously denying them to workers and class-action plaintiffs. But, as the antitrust agencies’ apparent about-face on workplace organizing suggests, the times may be a-changing.

Some of today’s most existential threats to societal welfare—pandemics, climate change, pollution—will best be addressed via cooperation, not atomistic rivalry. On-the-ground stakeholders certainly seem to think so. Absent a coherent, unified federal policy to deal with the coronavirus pandemic, state governors have reportedly begun to consider cooperating to provide a coordinated regional response. Last year, a group of auto manufacturers voluntarily agreed to increase fuel-efficiency standards and reduce emissions. They did attract an antitrust investigation, but it was subsequently dropped—a triumph for pro-social cooperation. It was perhaps also a reminder that corporations, each of which is itself a cooperative enterprise, can still play the role they were historically assigned: serving the public interest.

Going forward, policy-makers should give careful thought to how their actions and inactions encourage or stifle cooperation. Judge Easterbrook praised an agreement between business owners because it “promoted enterprise”. What counts as legitimate “enterprise”, though, is an eminently contestable proposition.

The federal antitrust agencies’ anti-worker stance in particular seems ripe for revisiting. Its modern origins date back to the 1980s, when President Reagan’s FTC challenged a coordinated boycott among D.C.-area criminal-defense attorneys. The boycott was a strike of sorts, intended to pressure the city into increasing court-appointed fees to a level that would allow for adequate representation. (The mayor’s office, despite being responsible for paying the fees, actually encouraged the boycott.) As the sole buyer of this particular type of service, the government wielded substantial power in the marketplace. A coordinated front was needed to counter it. Nonetheless, the FTC condemned the attorneys’ strike as per se illegal—a label supposedly reserved for the worst possible anticompetitive behavior—and the U.S. Supreme Court ultimately agreed.

Reviving Cooperation

In the short run, the federal antitrust agencies should formally reverse this anti-labor course. When workers cooperate in an attempt to counter employers’ power, antitrust intervention is, at best, a misallocation of scarce agency resources. Surely there are (much) bigger fish to fry. At worst, hostility to such cooperation directly contravenes Congress’ vision for the antitrust laws. These laws were intended to protect workers from concentrated downstream power, not to force their exposure to it—as the federal agencies themselves have recognized elsewhere.

In the longer run, congressional action may be needed. Supreme Court antitrust case law condemning worker coordination should be legislatively overruled. And, in a sharp departure from the current trend, we should be making it easier, not harder, for workers to form cooperative unions. Capital can be combined into a legal corporation in just a few hours, while it takes more than a month to create an effective labor union. None of this is to say that competition should be abandoned—much the opposite, in fact. A market that pits individual workers against highly concentrated cooperative entities is hardly “competitive”.

Thinking more broadly, antitrust and industrial policy may need to allow—or even encourage—cooperation in a number of sectors. Automakers’ and other manufacturers’ voluntary efforts to fight climate change should be lauded and protected, not investigated. Where cooperation is already shielded and even incentivized, as is the case with corporations, affirmative steps may be needed to ensure that the public interest is being furthered.

The current moment is without precedent. Industrial policy is destined, and has already begun, to change. Although competition has its place, it cannot serve as the sole lynchpin for a just economy. Now more than ever, a revival of cooperation is needed.

A recently published book, “Kochland – The Secret History of Koch Industries and Corporate Power in America” by Christopher Leonard, presents a gripping account of relentless innovation and the power of the entrepreneur to overcome adversity in pursuit of delivering superior goods and services to the market while also reaping impressive profits. It’s truly an inspirational American story.

Now, I should note that I don’t believe Mr. Leonard actually intended his book to be quite so complimentary to the Koch brothers and the vast commercial empire they built up over the past several decades. He includes plenty of material detailing, for example, their employees playing fast and loose with environmental protection rules, or their labor lawyers aggressively bargaining with unions, sometimes to the detriment of workers. And all of the stories he presents are supported by sympathetic emotional appeals through personal anecdotes. 

But, even then, many of the negative claims are part of a larger theme of Koch Industries progressively improving its business practices. One prominent example is how Koch Industries learned from its environmentally unfriendly past and implemented vigorous programs to ensure “10,000% compliance” with all federal and state environmental laws. 

What really stands out across most or all of the stories Leonard has to tell, however, is the deep appreciation that Charles Koch and his entrepreneurially-minded employees have for the fundamental nature of the market as an information discovery process. Indeed, Koch Industries has much in common with modern technology firms like Amazon in this respect — but decades before the information technology revolution made the full power of “Big Data” gathering and processing as obvious as it is today.

The impressive information operation of Koch Industries

Much of Kochland is devoted to stories in which Koch Industries’ ability to gather and analyze data from across its various units led to the production of superior results for the economy and consumers. For example,  

Koch… discovered that the National Parks Service published data showing the snow pack in the California mountains, data that Koch could analyze to determine how much water would be flowing in future months to generate power at California’s hydroelectric plants. This helped Koch predict with great accuracy the future supply of electricity and the resulting demand for natural gas.

Koch Industries was able to use this information to anticipate the amount of power (megawatt hours) it needed to deliver to the California power grid (admittedly, in a way that was somewhat controversial because of poorly drafted legislation relating to the new regulatory regime governing power distribution and resale in the state).

And, in 2000, while many firms in the economy were still riding the natural gas boom of the 90s, 

two Koch analysts and a reservoir engineer… accurately predicted a coming disaster that would contribute to blackouts along the West Coast, the bankruptcy of major utilities, and skyrocketing costs for many consumers.

This insight enabled Koch Industries to reap huge profits in derivatives trading, and it also enabled it to enter — and essentially rescue — a market segment crucial for domestic farmers: nitrogen fertilizer.

The market volatility in natural gas from the late 90s through early 00s wreaked havoc on the nitrogen fertilizer industry, for which natural gas is the primary input. Farmland — a struggling fertilizer producer — had progressively mismanaged its business over the preceding two decades by focusing on developing lines of business outside of its core competencies, including blithely exposing itself to the volatile natural gas market in pursuit of short-term profits. By the time it was staring bankruptcy in the face, there were no other companies interested in acquiring it. 

Koch’s analysts, however, noticed that many of Farmland’s key fertilizer plants were located in prime locations for reaching local farmers. Once the market improved, whoever controlled those key locations would be in a superior position for selling into the nitrogen fertilizer market. So, by utilizing the data it derived from its natural gas operations (both operating pipelines and storage facilities, as well as understanding the volatility of gas prices and availability through its derivatives trading operations), Koch Industries was able to infer that it could make substantial profits by rescuing this bankrupt nitrogen fertilizer business. 

Emblematic of Koch’s philosophy of only making long-term investments, 

[o]ver the next ten years, [Koch Industries] spent roughly $500 million to outfit the plants with new technology while streamlining production… Koch installed a team of fertilizer traders in the office… [t]he traders bought and sold supplies around the globe, learning more about fertilizer markets each day. Within a few years, Koch Fertilizer built a global distribution network. Koch founded a new company, called Koch Energy Services, which bought and sold natural gas supplies to keep the fertilizer plants stocked.

Thus, Koch Industries not only rescued midwest farmers from shortages that would have decimated their businesses, it invested heavily to ensure that production would continue to increase to meet future demand. 

As noted, this acquisition was consistent with the ethos of Koch Industries, which stressed thinking about investments as part of long-term strategies, in contrast to their “counterparties in the market [who] were obsessed with the near-term horizon.” This led Koch Industries to look at investments over a period measured in years or decades, an approach that allowed the company to execute very intricate investment strategies: 

If Koch thought there was going to be an oversupply of oil in the Gulf Coast region, for example, it might snap up leases on giant oil barges, knowing that when the oversupply hit, companies would be scrambling for extra storage space and willing to pay a premium for the leases that Koch bought on the cheap. This was a much safer way to execute the trade than simply shorting the price of oil—even if Koch was wrong about the supply glut, the downside was limited because Koch could still sell or use the barge leases and almost certainly break even.

Entrepreneurs, regulators, and the problem of incentives

All of these accounts and more in Kochland brilliantly demonstrate a principal salutary role of entrepreneurs in the market, which is to discover slack or scarce resources in the system and manage them in a way that they will be available for utilization when demand increases. Guaranteeing the presence of oil barges in the face of market turbulence, or making sure that nitrogen fertilizer is available when needed, is precisely the sort of result sound public policy seeks to encourage from firms in the economy. 

Government, by contrast — and despite its best intentions — is institutionally incapable of performing the same sorts of entrepreneurial activities as even very large private organizations like Koch Industries. The stories recounted in Kochland demonstrate this repeatedly. 

For example, in the oil tanker episode, Koch’s analysts relied on “huge amounts of data from outside sources” – including “publicly available data…like the federal reports that tracked the volume of crude oil being stored in the United States.” Yet, because that data was “often stale” owing to a rigid, periodic publication schedule, it lacked the specificity necessary for making precise interventions in markets. 

Koch’s analysts therefore built on that data using additional public sources, such as manifests from the Customs Service which kept track of the oil tanker traffic in US waters. Leveraging all of this publicly available data, Koch analysts were able to develop “a picture of oil shipments and flows that was granular in its specificity.”

Similarly, when trying to predict snowfall in the western US, and how that would affect hydroelectric power production, Koch’s analysts relied on publicly available weather data — but extended it with their own analytical insights to make it more suitable to fine-grained predictions. 

By contrast, despite decades of altering the regulatory scheme around natural gas production, transport and sales, and being highly involved in regulating all aspects of the process, the federal government could not even provide the data necessary to adequately facilitate markets. Koch’s energy analysts would therefore engage in various deals that sometimes would only break even — if it meant they could develop a better overall picture of the relevant markets: 

As was often the case at Koch, the company… was more interested in the real-time window that origination deals could provide into the natural gas markets. Just as in the early days of the crude oil markets, information about prices was both scarce and incredibly valuable. There were not yet electronic exchanges that showed a visible price of natural gas, and government data on sales were irregular and relatively slow to come. Every origination deal provided fresh and precise information about prices, supply, and demand.

In most, if not all, of the deals detailed in Kochland, government regulators had every opportunity to find the same trends in the publicly available data — or see the same deficiencies in the data and correct them. Given their access to the same data, government regulators could, in some imagined world, have developed policies to mitigate the effects of natural gas market collapses, handle upcoming power shortages, or develop a reliable supply of fertilizer to midwest farmers. But they did not. Indeed, because of the different sets of incentives they face (among other factors), in the real world, they cannot do so, despite their best intentions.

The incentive to innovate

This gets to the core problem that Hayek described concerning how best to facilitate efficient use of dispersed knowledge in such a way as to achieve the most efficient allocation and distribution of resources: 

The various ways in which the knowledge on which people base their plans is communicated to them is the crucial problem for any theory explaining the economic process, and the problem of what is the best way of utilizing knowledge initially dispersed among all the people is at least one of the main problems of economic policy—or of designing an efficient economic system.

The question of how best to utilize dispersed knowledge in society can only be answered by considering who is best positioned to gather and deploy that knowledge. There is no fundamental objection to “planning”  per se, as Hayek notes. Indeed, in a complex society filled with transaction costs, there will need to be entities capable of internalizing those costs  — corporations or governments — in order to make use of the latent information in the system. The question is about what set of institutions, and what set of incentives governing those institutions, results in the best use of that latent information (and the optimal allocation and distribution of resources that follows from that). 

Armen Alchian captured the different incentive structures between private firms and government agencies well: 

The extent to which various costs and effects are discerned, measured and heeded depends on the institutional system of incentive-punishment for the deciders. One system of rewards-punishment may increase the extent to which some objectives are heeded, whereas another may make other goals more influential. Thus procedures for making or controlling decisions in one rewards-incentive system are not necessarily the “best” for some other system…

In the competitive, private, open-market economy, the wealth-survival prospects are not as strong for firms (or their employees) who do not heed the market’s test of cost effectiveness as for firms who do… as a result the market’s criterion is more likely to be heeded and anticipated by business people. They have personal wealth incentives to make more thorough cost-effectiveness calculations about the products they could produce …

In the government sector, two things are less effective. (1) The full cost and value consequences of decisions do not have as direct and severe a feedback impact on government employees as on people in the private sector. The costs of actions under their consideration are incomplete simply because the consequences of ignoring parts of the full span of costs are less likely to be imposed on them… (2) The effectiveness, in the sense of benefits, of their decisions has a different reward-inventive or feedback system … it is fallacious to assume that government officials are superhumans, who act solely with the national interest in mind and are never influenced by the consequences to their own personal position.

In short, incentives matter — and are a function of the institutional arrangement of the system. Given the same set of data about a scarce set of resources, over the long run, the private sector generally has stronger incentives to manage resources efficiently than does government. As Ludwig von Mises showed, moving those decisions into political hands creates a system of political preferences that is inherently inferior in terms of the production and distribution of goods and services.

Koch Industries: A model of entrepreneurial success

The market is not perfect, but no human institution is perfect. Despite its imperfections, the market provides the best system yet devised for fairly and efficiently managing the practically unlimited demands we place on our scarce resources. 

Kochland provides a valuable insight into the virtues of the market and entrepreneurs, made all the stronger by Mr. Leonard’s implied project of “exposing” the dark underbelly of Koch Industries. The book tells the bad tales, which I’m willing to believe are largely true. I would, frankly, be shocked if any large entity — corporation or government — never ran into problems with rogue employees, internal corporate dynamics gone awry, or a failure to properly understand some facet of the market or society that led to bad investments or policy. 

The story of Koch Industries — presented even as it is through the lens of a “secret history”  — is deeply admirable. It’s the story of a firm that not only learns from its own mistakes, as all firms must do if they are to survive, but of a firm that has a drive to learn in its DNA. Koch Industries relentlessly gathers information from the market, sometimes even to the exclusion of short-term profit. It eschews complex bureaucratic structures and processes, which encourages local managers to find opportunities and nimbly respond.

Kochland is a quick read that presents a gripping account of one of America’s corporate success stories. There is, of course, a healthy amount of material in the book covering the Koch brothers’ often controversial political activities. Nonetheless, even those who hate the Koch brothers on account of politics would do well to learn from the model of entrepreneurial success that Kochland cannot help but describe in its pages.