Читать книгу Inequality and the Labor Market - Группа авторов - Страница 31

1 1. It is an open question how much a new framework is required to address the natural lack of competition in labor markets arising from an employer’s basic market power over its employees, even without the aid of mobility restraints like noncompetes and no-poach agreements, and natural information and bargaining asymmetries. See, e.g., Ashenfelter, Farber, and Ransom (2010); and Manning (2011).

2 2. See Naidu, Posner, and Weyl (2018), comparing raw numbers of product-related antitrust cases to labor-related enforcement.

3 3. See, e.g., comment by Christine A. Varney (1995), former commissioner, arguing that public discussion of mergers’ layoffs would prompt irrational backlash.

4 4. Sometimes—where the labor supply is inelastic, for example—there might not be any downstream price effect, but the circumstances where consumers might benefit are limited.

5 5. 135 S. Ct. 2401, 2412-13 (2015).

6 6. Even this has some caveats imported via the judicially created concept of antitrust standing. See, e.g., Blue Shield v. McCready, 457 U.S. 465 (1982).

7 7. State Oil Co. v. Khan, 522 U.S. 3, 22 (1997); Leegin Creative Leather Products, Inc. v. PSKS, Inc., 4 551 U.S. 877, 907 (2007).

8 8. Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284 (1985).

9 9. Continental T.V. v. GTE Sylvania, Inc. 433 U.S. 36 (1977). https://link.springer.com/article/10.1007/s11151-017-9584-x#ref-CR57.

10 10. Chicago Board of Trade v. United States, 246 U.S. 231, 238 (1918).

11 11. Also, it has been assumed that merger review would provide prospective protection against problematic monopolies. But in practice that has not happened. Merger enforcement has been declining and is now at its lowest level in history by some metrics. One might think that would lead to more conduct cases since there are more monopolists, but that has not happened either. In 2017–18, the U.S. Department of Justice did not open a single monopolization investigation. The rule of reason, among other things, has operated as carte blanche for monopolists. It should not be a surprise. It is extremely difficult for a judge to look at what appears to be a widely successful company, and order it to reconfigure how it does business (American Antitrust Institute 2020).

12 12. This designation as independent contractors is highly contested in litigation. Because Uber and Lyft, however, require drivers to sign forced arbitration provisions, achieving clarity through litigation has been slow. In Massachusetts, Attorney General Maura Healey is contesting the status of drivers under a state statute that defines independent contractor status more narrowly (Lisinski 2020).

13 13. Parker immunity is a doctrine that exempts from antitrust coverage anticompetitive behavior that is undertaken pursuant to a state legislative act.

14 14. Chamber of Commerce v. City of Seattle, 132 Harv. L. Rev. 2360 (2019).

15 15. E.g., Seychelles Organics, Inc. v. Rose, 682 Fed.Appx. 605 (2017).

16 16. E.g. Bautista, et al. v. Carl Karcher Enterprises, LLC, BC649777 (L.A. Super. Ct., Feb. 8, 2017); Turner v. McDonalds USA, 19-cv-05524 (N.D. Il. 2019).

17 17. Seychelles Organics, Inc. v. Rose, 682 Fed.Appx. 605 (2017).

18 18. North Carolina State Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015).

19 19. See, e.g., NW Wholesale Stationers v. Pac. Stationery, 472 U.S. 284 (1985), and the discussion therein that at sufficient levels of market power, antitrust may require procedural safeguards to protect against discriminatory access.

20 20. Other countries have more explicitly imported this notion that above certain thresholds of power, you must operate fairly. These laws are still being pressure-tested, but so far South Korea and Japan’s markets have been functioning fine under this modest check on monopolists’ power.