Trust-busting is once again a subject of national attention. And the attention is well-deserved: ... more Trust-busting is once again a subject of national attention. And the attention is well-deserved: unprecedented levels of corporate concentration, firm dominance, and inequality demand robust debate about how antitrust solutions can ensure that our economy works for everyone. One simple remedy to “bigness” has stolen the spotlight within that debate—“breaking up” big firms into smaller ones to decrease corporate power and lower prices. But calls to break up firms from Big Tech to Big Ag have focused on how breakups could benefit consumers and, in some cases, small businesses. Absent from these debates is how breakups benefit or harm the workers and labor markets affected by firm dismantling. This Article is the first to focus on how firm breakups—and antitrust enforcement and remedial design more generally—can and have significantly impacted workers’ countervailing power and earning potential. Firm structure matters for worker power. Dismantling dominant firms can result in more firms competing for workers’ services, which can lift their wages. But it can also dismantle structures of worker power that have arisen to successfully counter dominant employers. A leading example, as this Article documents, is the devastating effect of the breakup of the Bell System in the 1980s on the Communications Workers of America, gutting union density within the telecommunications industry from 56% pre-breakup to 24% by 2001. Breakups, much like workplace “fissuring”, can decimate labor market institutions that advocate on workers’ behalf, but also have and can result in layoffs, increased obstacles for worker coordination, lower overall wage rates, and dramatic reductions in earned benefits, job security, and the quality of working conditions. The Article fills the gap in antitrust scholarship and policy debates that have ignored the effects of antitrust remedies on workers. It offers the first comprehensive scholarly treatment of these effects and argues that, for historical, theoretical, and empirical reasons, antitrust enforcers and scholars must attune their prescriptions and remedial mechanisms to ensure that antitrust remedies do not perpetuate the long history of antitrust’s alternating hostility or disregard for worker welfare. It begins by summarizing the debates around firm breakups and reveals their disregard for labor market competition and worker welfare. It then unearths case studies and social scientific analyses to assess the effects of breakups and offers both a theoretical and empirical overview of when breaking up firms can benefit or harm labor market competition and workers’ countervailing power against dominant employers. It concludes by proposing alternative remedies to monopolization and corporate consolidation that better secure worker welfare.
American labor law was designed to ensure equal bargaining power between workers and employers. B... more American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2% in the private sector—a level unequaled since the Great Depression—the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed to step in, leaving employers free to coordinate and consolidate labor market power while constraining workers’ ability to do the same. The dissolution of workers’ collective rights has resulted in spiking income inequality: workers have suffered economy-wide wage stagnatio...
Law & Society: Private Law - Labor & Employment Law eJournal, 2017
The rise of the contingent and gig economies and of outsourced and subcontracted work has left ma... more The rise of the contingent and gig economies and of outsourced and subcontracted work has left many workers with insufficient bargaining power to successfully negotiate collective bargaining agreements with their direct employers. This problem is exacerbated by a statutory ban on worker picketing and boycotts of non-employers, or “secondaries,” even where those employers: collude with direct employers on wage-fixing or the suppression of union activity; have monopsony power over direct employers; or have substantial indirect control over worker wages through contractual arrangements. This Article is a crucial intervention in modernizing the labor law on worker picketing in the New Economy. It first outlines the current distinction between direct and “secondary” employers under the National Labor Relation Act’s secondary picketing ban. It then provides an overview of New Economy work arrangements and developments in economic theory necessary for updating the law on this distinction a...
Law & Society: Private Law - Labor & Employment Law eJournal, 2019
Growing inequality, the decline in labor’s share of national income, and increasing evidence of l... more Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses workers’ wages. The turn to labor antitrust is driven in part by congressional gridlock and the collapse of labor law as a dominant source of labor market regulation, inviting regulation through other means. Labor antitrust promises an effective attack because agency discretion and judicial en...
We write as professors in the fields of labor law, antitrust law, and labor economics with extens... more We write as professors in the fields of labor law, antitrust law, and labor economics with extensive expertise in: (1) the National Labor Relations Act ("NLRA"), National Labor Relations Board and judicial decisions as they pertain to joint employment; (2) the history and differential application of the antitrust laws to workers over employers; (3) antitrust law as it pertains to employer market power; (4) economic theory pertaining to employer market power and monopsonistic competition in labor markets; and/or (5) empirical economic research on labor market concentration and the impact of employer market power and monopsonistic competition on workers' wages and terms and conditions of work. On September 14, 2018, the National Labor Relations Board (the "Board") published the Standard for Determining Joint-Employer Status Rule, proposing a new definition of "joint employers" (the "NPRM"). The NPRM proposed that an employer be considered a "joint employer" of a "separate employer's employees only if the two employers share or codetermine the employees' essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction." (p. 46686, col. 2, ¶1). The NPRM requires that a "putative joint employer must possess and actually exercise substantial direct and immediate control over the employees' essential terms and conditions of employment in a manner that is not limited and routine." (Id.).
The concept of economic coercion — that a relationship or transaction can be economically exploit... more The concept of economic coercion — that a relationship or transaction can be economically exploited for the benefit of some over others — is elaborated at the intersection of economic theory and economic realities, moral and political understandings of freedom, jurisprudence and the lived application of the law to facts. As a category of criminal and civil wrong, it has been directly and indirectly adjudicated in a breathtaking array of contexts of private and public ordering. Theories of economic coercion are decisive in drawing the line between what constitutes labor market competition and forced labor, which federal programs constitutionally encourage state action and which unconstitutionally commandeer it, and whether theft of natural resources violates international criminal law. But what informs legal theories and conceptualizations of economic coercion? How are economic theories and theories of freedom written into the law through assessments of economic coercion? How is econ...
In an era when administrative agency actions succeed or fail based on the thoroughness and rigor ... more In an era when administrative agency actions succeed or fail based on the thoroughness and rigor of their cost-benefit analyses and expertise, the 1940 statutory ban on hiring economists at the National Labor Relations Board (NLRB) is a shocking anachronism. The ban, accompanied by the Board’s failure to solicit external expertise, severely limits the success of the Board’s actions on judicial review, its institutional competency, and its ability to assess the economic effects of its labor regulation in achieving a central goal of the National Labor Relations Act: equal bargaining power between workers and their employers that secures competitive wages and increases worker purchasing power. This Article proposes the reestablishment of a Division of Economic Research at the NLRB to integrate the study, analysis and propagation of labor-related social science into the Board’s enforcement and policy-making. In doing so, it draws on the history of the Board’s short-lived Division of Eco...
Growing inequality, the decline in labor's share of national income, and increasing evidence of l... more Growing inequality, the decline in labor's share of national income, and increasing evidence of labor-market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor-market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or "labor antitrust." These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses workers' wages. The turn to labor antitrust is driven in part by congressional gridlock and the collapse of labor law as a dominant source of labor market regulation, inviting regulation through other means. Labor antitrust promises an effective attack because agency discretion and judicial enforcement can police labor markets without substantial amendments to existing law, bypassing the current impasse in Congress. Further, unlike labor and employment law, labor antitrust is uniquely positioned to challenge industry-wide wage suppression: suing multiple employers is increasingly challenging in work law as a statutory, doctrinal, and procedural matter. But current labor-antitrust proposals, while fruitful, are fundamentally limited in two ways. First, echoing a broader antitrust policy crisis, they inherit and reinvigorate debates about the current consumer welfare goal of antitrust. The proposals ignore that, as a theoretical and practical matter, employers' anticompetitive conduct in labor markets does not necessarily harm consumers. As a result, workers' labor-antitrust challenges will face an uphill battle under current law: when consumers are not harmed, labor antitrust can neither effectively police employer buyer power nor fill gaps in labor market regulation left by a retreating labor law. Second, the proposals ignore real synergies between antitrust enforcement and labor regulation that could preempt the rise of employer buyer power and contain its exercise. This Essay analyzes the limitations of current labor-antitrust proposals and argues for "regulatory sharing" between antitrust and labor law to combat the adverse effects of employer buyer power. It makes three key contributions. First, it frames the new labor antitrust as disrupting a grand regulatory bargain, reinforced by the Chicago School, that separated labor and antitrust regulation to resolve a perceived paradox in serving two masters: workers and consumers. The dominance of the consumer welfare standard resolved that paradox. Second, it explains how scholarly attempts to invigorate labor antitrust fail to overcome this paradox and ignore theoretical and doctrinal roadblocks to maximizing both worker and consumer welfare, leaving worker-plaintiffs vulnerable to failure. Third, it proposes a † Assistant Professor of Law, Boston College Law School. I am deeply grateful to Eric Posner, Sanjukta Paul, Brian Callaci, and the participants of the Reassessing the Chicago School of Antitrust Law Symposium for their helpful comments and suggestions. The University of Chicago Law Review [86:381 novel restructuring of labor market regulation that integrates antitrust and labor law enforcement to achieve coherent and effective regulation of employer buyer power. It refocuses labor-antitrust claims on consumer welfare ends. In doing so, it also relegates worker welfare considerations to a labor law supplemented and fortified by the creation of substantive presumptions and defenses triggered by laborantitrust findings as well as labor agency involvement in merger review.
The United States is currently trying to manage a fast-moving public health crisis due to the cor... more The United States is currently trying to manage a fast-moving public health crisis due to the coronavirus outbreak (COVID-19). The economic and financial ramifications of the outbreak are serious. This Working Paper discusses these ramifications and identifies three interrelated but potentially conflicting policy priorities at stake in managing the economic and financial fallout of the COVID-19 crisis: (1) providing social insurance to individuals and families in need; (2) managing systemic economic and financial risk; and (3) encouraging critical spatial behaviors to help contain COVID-19 transmission. The confluence of these three policy considerations and the potential conflicts among them make the outbreak a significant and unique regulatory challenge for policymakers, and one for which the consequences of getting it wrong are dire. This Working Paper-which will be continually updated to reflect current developments-will analyze the major legislative and other policy initiatives that are being proposed and enacted to manage the economic and financial aspects of the COVID-19 crisis by examining these initiatives through the lens of these three policy priorities. It starts by analyzing the provisions of H.R. 6201 (the "Families First Coronavirus Responses Act") passed by the house on March 14, 2020. By doing so, this Working Paper provides an analytical framework for evaluating these initiatives.
After 9/11, Congress, federal agencies, and scholars exposed the devastating results of the natio... more After 9/11, Congress, federal agencies, and scholars exposed the devastating results of the national security agencies’ failure to coordinate. The financial crisis has been linked to similar coordination failures in the context of interagency banking regulation, with jurisdictional gaps and blind spots resulting in failure to prevent a global recession. But despite Gilded Age-levels of inequality, little attention has focused on the failures of interagency coordination to secure Americans’ access to economic opportunity through work—whether through securing higher wages and higher union density, coordinating government enforcement to achieve redistributive goals and combat consolidation of employer buyer power, or overcoming systemic abuses in employers’ wage theft, discrimination, and worker mistreatment. The crippling spread of the coronavirus (COVID-19) pandemic demands that now, more than ever, agencies coordinate in their regulation of labor markets to accomplish micro- and mac...
Trust-busting is once again a subject of national attention. And the attention is well-deserved: ... more Trust-busting is once again a subject of national attention. And the attention is well-deserved: unprecedented levels of corporate concentration, firm dominance, and inequality demand robust debate about how antitrust solutions can ensure that our economy works for everyone. One simple remedy to “bigness” has stolen the spotlight within that debate—“breaking up” big firms into smaller ones to decrease corporate power and lower prices. But calls to break up firms from Big Tech to Big Ag have focused on how breakups could benefit consumers and, in some cases, small businesses. Absent from these debates is how breakups benefit or harm the workers and labor markets affected by firm dismantling. This Article is the first to focus on how firm breakups—and antitrust enforcement and remedial design more generally—can and have significantly impacted workers’ countervailing power and earning potential. Firm structure matters for worker power. Dismantling dominant firms can result in more firms competing for workers’ services, which can lift their wages. But it can also dismantle structures of worker power that have arisen to successfully counter dominant employers. A leading example, as this Article documents, is the devastating effect of the breakup of the Bell System in the 1980s on the Communications Workers of America, gutting union density within the telecommunications industry from 56% pre-breakup to 24% by 2001. Breakups, much like workplace “fissuring”, can decimate labor market institutions that advocate on workers’ behalf, but also have and can result in layoffs, increased obstacles for worker coordination, lower overall wage rates, and dramatic reductions in earned benefits, job security, and the quality of working conditions. The Article fills the gap in antitrust scholarship and policy debates that have ignored the effects of antitrust remedies on workers. It offers the first comprehensive scholarly treatment of these effects and argues that, for historical, theoretical, and empirical reasons, antitrust enforcers and scholars must attune their prescriptions and remedial mechanisms to ensure that antitrust remedies do not perpetuate the long history of antitrust’s alternating hostility or disregard for worker welfare. It begins by summarizing the debates around firm breakups and reveals their disregard for labor market competition and worker welfare. It then unearths case studies and social scientific analyses to assess the effects of breakups and offers both a theoretical and empirical overview of when breaking up firms can benefit or harm labor market competition and workers’ countervailing power against dominant employers. It concludes by proposing alternative remedies to monopolization and corporate consolidation that better secure worker welfare.
American labor law was designed to ensure equal bargaining power between workers and employers. B... more American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2% in the private sector—a level unequaled since the Great Depression—the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed to step in, leaving employers free to coordinate and consolidate labor market power while constraining workers’ ability to do the same. The dissolution of workers’ collective rights has resulted in spiking income inequality: workers have suffered economy-wide wage stagnatio...
Law & Society: Private Law - Labor & Employment Law eJournal, 2017
The rise of the contingent and gig economies and of outsourced and subcontracted work has left ma... more The rise of the contingent and gig economies and of outsourced and subcontracted work has left many workers with insufficient bargaining power to successfully negotiate collective bargaining agreements with their direct employers. This problem is exacerbated by a statutory ban on worker picketing and boycotts of non-employers, or “secondaries,” even where those employers: collude with direct employers on wage-fixing or the suppression of union activity; have monopsony power over direct employers; or have substantial indirect control over worker wages through contractual arrangements. This Article is a crucial intervention in modernizing the labor law on worker picketing in the New Economy. It first outlines the current distinction between direct and “secondary” employers under the National Labor Relation Act’s secondary picketing ban. It then provides an overview of New Economy work arrangements and developments in economic theory necessary for updating the law on this distinction a...
Law & Society: Private Law - Labor & Employment Law eJournal, 2019
Growing inequality, the decline in labor’s share of national income, and increasing evidence of l... more Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses workers’ wages. The turn to labor antitrust is driven in part by congressional gridlock and the collapse of labor law as a dominant source of labor market regulation, inviting regulation through other means. Labor antitrust promises an effective attack because agency discretion and judicial en...
We write as professors in the fields of labor law, antitrust law, and labor economics with extens... more We write as professors in the fields of labor law, antitrust law, and labor economics with extensive expertise in: (1) the National Labor Relations Act ("NLRA"), National Labor Relations Board and judicial decisions as they pertain to joint employment; (2) the history and differential application of the antitrust laws to workers over employers; (3) antitrust law as it pertains to employer market power; (4) economic theory pertaining to employer market power and monopsonistic competition in labor markets; and/or (5) empirical economic research on labor market concentration and the impact of employer market power and monopsonistic competition on workers' wages and terms and conditions of work. On September 14, 2018, the National Labor Relations Board (the "Board") published the Standard for Determining Joint-Employer Status Rule, proposing a new definition of "joint employers" (the "NPRM"). The NPRM proposed that an employer be considered a "joint employer" of a "separate employer's employees only if the two employers share or codetermine the employees' essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction." (p. 46686, col. 2, ¶1). The NPRM requires that a "putative joint employer must possess and actually exercise substantial direct and immediate control over the employees' essential terms and conditions of employment in a manner that is not limited and routine." (Id.).
The concept of economic coercion — that a relationship or transaction can be economically exploit... more The concept of economic coercion — that a relationship or transaction can be economically exploited for the benefit of some over others — is elaborated at the intersection of economic theory and economic realities, moral and political understandings of freedom, jurisprudence and the lived application of the law to facts. As a category of criminal and civil wrong, it has been directly and indirectly adjudicated in a breathtaking array of contexts of private and public ordering. Theories of economic coercion are decisive in drawing the line between what constitutes labor market competition and forced labor, which federal programs constitutionally encourage state action and which unconstitutionally commandeer it, and whether theft of natural resources violates international criminal law. But what informs legal theories and conceptualizations of economic coercion? How are economic theories and theories of freedom written into the law through assessments of economic coercion? How is econ...
In an era when administrative agency actions succeed or fail based on the thoroughness and rigor ... more In an era when administrative agency actions succeed or fail based on the thoroughness and rigor of their cost-benefit analyses and expertise, the 1940 statutory ban on hiring economists at the National Labor Relations Board (NLRB) is a shocking anachronism. The ban, accompanied by the Board’s failure to solicit external expertise, severely limits the success of the Board’s actions on judicial review, its institutional competency, and its ability to assess the economic effects of its labor regulation in achieving a central goal of the National Labor Relations Act: equal bargaining power between workers and their employers that secures competitive wages and increases worker purchasing power. This Article proposes the reestablishment of a Division of Economic Research at the NLRB to integrate the study, analysis and propagation of labor-related social science into the Board’s enforcement and policy-making. In doing so, it draws on the history of the Board’s short-lived Division of Eco...
Growing inequality, the decline in labor's share of national income, and increasing evidence of l... more Growing inequality, the decline in labor's share of national income, and increasing evidence of labor-market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor-market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or "labor antitrust." These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses workers' wages. The turn to labor antitrust is driven in part by congressional gridlock and the collapse of labor law as a dominant source of labor market regulation, inviting regulation through other means. Labor antitrust promises an effective attack because agency discretion and judicial enforcement can police labor markets without substantial amendments to existing law, bypassing the current impasse in Congress. Further, unlike labor and employment law, labor antitrust is uniquely positioned to challenge industry-wide wage suppression: suing multiple employers is increasingly challenging in work law as a statutory, doctrinal, and procedural matter. But current labor-antitrust proposals, while fruitful, are fundamentally limited in two ways. First, echoing a broader antitrust policy crisis, they inherit and reinvigorate debates about the current consumer welfare goal of antitrust. The proposals ignore that, as a theoretical and practical matter, employers' anticompetitive conduct in labor markets does not necessarily harm consumers. As a result, workers' labor-antitrust challenges will face an uphill battle under current law: when consumers are not harmed, labor antitrust can neither effectively police employer buyer power nor fill gaps in labor market regulation left by a retreating labor law. Second, the proposals ignore real synergies between antitrust enforcement and labor regulation that could preempt the rise of employer buyer power and contain its exercise. This Essay analyzes the limitations of current labor-antitrust proposals and argues for "regulatory sharing" between antitrust and labor law to combat the adverse effects of employer buyer power. It makes three key contributions. First, it frames the new labor antitrust as disrupting a grand regulatory bargain, reinforced by the Chicago School, that separated labor and antitrust regulation to resolve a perceived paradox in serving two masters: workers and consumers. The dominance of the consumer welfare standard resolved that paradox. Second, it explains how scholarly attempts to invigorate labor antitrust fail to overcome this paradox and ignore theoretical and doctrinal roadblocks to maximizing both worker and consumer welfare, leaving worker-plaintiffs vulnerable to failure. Third, it proposes a † Assistant Professor of Law, Boston College Law School. I am deeply grateful to Eric Posner, Sanjukta Paul, Brian Callaci, and the participants of the Reassessing the Chicago School of Antitrust Law Symposium for their helpful comments and suggestions. The University of Chicago Law Review [86:381 novel restructuring of labor market regulation that integrates antitrust and labor law enforcement to achieve coherent and effective regulation of employer buyer power. It refocuses labor-antitrust claims on consumer welfare ends. In doing so, it also relegates worker welfare considerations to a labor law supplemented and fortified by the creation of substantive presumptions and defenses triggered by laborantitrust findings as well as labor agency involvement in merger review.
The United States is currently trying to manage a fast-moving public health crisis due to the cor... more The United States is currently trying to manage a fast-moving public health crisis due to the coronavirus outbreak (COVID-19). The economic and financial ramifications of the outbreak are serious. This Working Paper discusses these ramifications and identifies three interrelated but potentially conflicting policy priorities at stake in managing the economic and financial fallout of the COVID-19 crisis: (1) providing social insurance to individuals and families in need; (2) managing systemic economic and financial risk; and (3) encouraging critical spatial behaviors to help contain COVID-19 transmission. The confluence of these three policy considerations and the potential conflicts among them make the outbreak a significant and unique regulatory challenge for policymakers, and one for which the consequences of getting it wrong are dire. This Working Paper-which will be continually updated to reflect current developments-will analyze the major legislative and other policy initiatives that are being proposed and enacted to manage the economic and financial aspects of the COVID-19 crisis by examining these initiatives through the lens of these three policy priorities. It starts by analyzing the provisions of H.R. 6201 (the "Families First Coronavirus Responses Act") passed by the house on March 14, 2020. By doing so, this Working Paper provides an analytical framework for evaluating these initiatives.
After 9/11, Congress, federal agencies, and scholars exposed the devastating results of the natio... more After 9/11, Congress, federal agencies, and scholars exposed the devastating results of the national security agencies’ failure to coordinate. The financial crisis has been linked to similar coordination failures in the context of interagency banking regulation, with jurisdictional gaps and blind spots resulting in failure to prevent a global recession. But despite Gilded Age-levels of inequality, little attention has focused on the failures of interagency coordination to secure Americans’ access to economic opportunity through work—whether through securing higher wages and higher union density, coordinating government enforcement to achieve redistributive goals and combat consolidation of employer buyer power, or overcoming systemic abuses in employers’ wage theft, discrimination, and worker mistreatment. The crippling spread of the coronavirus (COVID-19) pandemic demands that now, more than ever, agencies coordinate in their regulation of labor markets to accomplish micro- and mac...
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