Wednesday, November 21, 2012

What are folks actually working on?

We rarely deal with the wRiting part of the blog?  I am curious what people are actually working on when they are not running or rehabbing.

To get the ball rolling, my main project is my co-authored article on "Antitrust's Democracy Deficit" with Harry First of NYU.  We are looking at the evolving nature of antitrust into a technocracy and critiquing it from the point of view of transparency and democratic accountability.  We contrast this trend in the US with the opposite trend in the EU where the modernization effort has empowered national competition authorities, national courts, and to a lesser extent private plaintiffs to make competition enforcement more transparent and closer to the people affected by it.  Finally, we look at the ideological underpinning of the movement towards  technocracy in the US and how many advocates are in fact arguing for a laissez faire approach to market regulation that cannot be justified by the text, intent, history or interpretation of the US antitrust statutes. 

We have presented this at a conference on the goals of antitrust at GW law school in October and will be publishing it in the Fordham Law Review.  Suddenly, the January 14th deadline for final manuscripts doesn't seem that far away.

I have too many other smaller projects and administrative reports due to even begin to summarize those but look forward to hearing about the big ticket items on your plate.  Plus there is grading looming on the horizon.

And before I forget, Happy Thanksgiving to all, even those bloggers in countries with different traditions this time of year.


  1. Two main projects are "off the stack" at the moment. A paper I am working on with Melissa Jacoby about expedited all asset sales in bankruptcy, and a paper with Susan Block-Lieb about consumer financial protection. Neither is quite ready for prime time yet, but hopefully soon.

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  3. I've dialled down some of my published writing due to my board positions on a couple of competition authorities, 1. due to propriety, and 2. because I've always written to try to influence policy and now I get to do what is v v cool (for a geek like me at least) which is help set policy, and so much of my writing now takes place inside the authorities, helping with leniency, penalties, settlements, decision-making, and other guidance we've been issuing. When I am out again though I can definitely say I want to write about agency governance and decision-making from a critical point of view, I just can't right now. I also want to write about mergers of competition authorities, because I was part of one "merger" in the Channel Islands this summer, and am still part of the OFT-CC "merger" and find parts of it fascinating. To answer your question though, this past summer I got some papers out on addressing unfair practices in retail chains looking at non-competition initiatives in the EU, and chapters on international cooperation, examining the increasing informality but effectiveness in this area.

  4. Ted, I'd love to pick your brain about asset sales (which leads to what I describe below).

    The file folder on Dropbox is named "Bankruptcy and Antitrust." The thesis is that antitrust merger policy is irreconcileable with mergers/sales of divisions in the course of Chapter 11. The question, which has bedeviled me for literally 2 years, is how to resolve the tension. Do we prefer the consumer interests, thus prioritize antitrust enforcement over bankruptcy estate maximization goals? Or do we prefer the ownership interests, including, of course, creditors -- and thus prioritize bankruptcy estate value maximization goals over antitrust policy? I now think the answer is both, depending which of those interests is less able to protect itself in bargaining. At one extreme consider a consumer goods manufacturer funded by a major bank lender. The constituents of the bankruptcy estate can bargain to protect themselves against losses when the manufacturer fails. The consumers are too diffuse and unsophisticated to do the same. At the other extreme is a manufacturer of component parts -- say aircraft engines -- owned by individual shareholders. The shareholders have little ability to protect themselves against the consequences of failure. The consuming interest there -- Boeing, in my example -- is amply protected.

    Ultimately, because antitrust offers the failing firm defense and bankruptcy has no mechanism for considering consumers' interests, I think the priorities are alphabetical.

    I hope this writes as well as I am envisioning!

  5. We should definitely talk!! Your concern looms large in a 363 sale where they buyer is a competitor. There are some hooks within bankruptcy to consider the "public interest." You might ant to look at Judge Gerber's DBSD case, where votes of a competitor (if I'm remembering correctly) were designated (disregarded).

  6. Thanks for this, Ted. If bankruptcy is serious about competition policy, or if competition policy can seriously be injected into bankruptcy, this reduces to comparative institutionalism. Once my finals are written I'm working on this full-time. I hope you'll be willing to view a draft?

  7. Not serious, exactly. Bankruptcy deals with "creditor interest." Anticompetitive behavior is not viewed as a "creditor interest." Happy to read a draft.