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Truth on the Market

Academic commentary on law, business, economics and more.

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Last Entry: April 01, 2011 at 00:51:38

Will Federal Courts Adopt the 2010 HMGs?

Posted on October 27, 2010
Leah Brannon and co-author Kathleen Bradish, both of Cleary Gottlieb Steen & Hamilton, offer a skeptical view: In the half-century since du Pont, lower courts have continued to view market definition as a predicate to Section 7 claims. For example, the D...

Proxy advisors as regulatory spawn

Posted on October 26, 2010
John Carney comments on the rise of proxy advisory firms. He attributes this partly to increasing complexity caused by the securities industry. He notes the irony that ?[r]eforms to securities regulations that were ostensibly intended to empower shareholders or further ?shareholder democracy? have instead resulted in increasing domination of proxy questions by a small clique [...

Death of Big Government

Posted on October 25, 2010
I?ve been talking (maybe to death) about how high costs, competition, outsourcing, etc., have contributed to the Death of Big Law. Now Bloomberg reports (HT Law blog) that Mark Cuban?s lawyer told U.S. District Judge Reggie Walton in Washington that he was seeking a creative solution to moving the case along, noting the federal government [...

Citizens United and the shareholder protection gambit

Posted on October 25, 2010
Last January in Citizens United the Supreme Court delivered a blow to the opponents of corporate speech by enabling corporations to spend directly on political campaigns rather than relying on PACs and lobbying. A majority of the Court concluded that public debate could be best promoted by protecting all speech, regardless of speaker...

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More on lawyers and foreclosure-gate

Posted on October 22, 2010
A few days ago I wrote that a cause of foreclosure-gate was the law industry?s failure to fully adapt to mass production, at least partly because of current ethics rules. But lawyers are, of course, fully capable of litigating the mistakes that result from this business model...

Should Congress Repeal the McCarran-Ferguson Act?

Posted on October 22, 2010
While I’m focused on health care and antitrust, the question above is the subject of a conference at the Harvard Law School Petrie?Flom Center which looks like it has a great lineup. The conference is November 12th. Here is the conference description (HT: Larry Solum)...

DOJ v. Blue Cross Blue Shield of Michigan

Posted on October 22, 2010
This should be an interesting case to watch. As I’ve discussed, if one excludes policy speeches and restricts focus to enforcement action and activity, it has been thus far difficult to distinguish the Obama Antitrust Division from the Bush II Antitrust Division when it comes to single firm or allegedly exclusionary conduct...

Put-backs: How much are the banks worth?

Posted on October 20, 2010
BoA is trading around $11. Its book value is $21.45. The difference has a lot to do with whether investors in mortgage-backed securities will be able to get BoA (and other banks) to repurchase hundreds of billions of dollars of mortgage-backed securities because the bonds didn?t meet representations and warranties in the bond contracts...

Agents Prosecuting Agents, at Overcriminalization 2.0.

Posted on October 20, 2010
Tomorrow in D.C. I?m joining a distinguished group for a program called “Overcriminalization 2.0″ (agenda) presented by GMU?s Journal of Law, Economics & Policy and Law & Economics Center, the National Association of Criminal Defense Lawyers, and the Foundation for Criminal Justice...

Journalism as advertising

Posted on October 19, 2010
This NYT article about management problems at the Tribune came with the following ad: “The finest journalism in Chicago? The New York Times, as low as $3.70 a week.” Filed under: journalism

Say on Pay

Posted on October 19, 2010
A late Monday press release from the Securities and Exchange Commission announces a rule proposal to implement the say on pay requirements of the Dodd-Frank Act. I testified before both houses of Congress against the legislative authorizing language in Dodd-Frank that the SEC uses to promulgate the rule...

Antitrust and the Dynamics of Competition in High-Tech Industries

Posted on October 19, 2010
On Friday, I will be participating at an event at Technology Policy Institute, where I will be discussing the titular question along with Bob Crandall, Charles Jackson, Christopher Yoo, and Bruce Owen. Discussants are Joe Farrell, Tim Brennan, Carl Shapiro and Michael Salinger...

Optimal Sanctions for NFL Hits

Posted on October 19, 2010
In response to a week with what the NFL perceives to be a large number of tackles causing injury, the league is ready to announce a new policy in which players will be suspended for certain hits the league deems to dangerous or too likely to cause injury...

The roots of foreclosure-gate: incentives and lawyers

Posted on October 17, 2010
Careless or even fraudulent documentation in foreclosure actions has stalled foreclosures, stymied recovery of the housing market, threatened the earnings and even financial stability of banks, and may lead to massive securities fraud actions. How did this happen? Per CR: [A] combination of getting swamped with foreclosures, lack of experienced staff, the poor economic environment [...

Must the President Defend Don’t Ask, Don’t Tell?

Posted on October 16, 2010
Usual caveats for a Lambert weekend post: Post is off-topic for this blog and represents my own opinion only. Well, he’s done it. President Obama has ordered his Department of Justice to appeal the district court order abrogating Don’t Ask, Don’t Tell...

Another unintended consequence of SOX: preliminary earnings

Posted on October 16, 2010
We know that Sarbanes-Oxley imposed significant costs on firms in the interests of more accurate disclosures. Maybe this is a cost worth bearing. But what if one of these costs is actually less accurate disclosures? Scott N. Bronson, Chris Hogan and Marilyn Johnson of Michigan State have written The Unintended Consequences of PCAOB Auditing Standards [...

Wilkes v. Springside and the Rise of the Uncorporation

Posted on October 16, 2010
As I noted last week I participated with several corporate law luminaries in a conference at Western New England College in Springfield, Massachusetts on the famous case of Wilkes v. Springside Nursing Home, 370 Mass. 842, 353 N.E.2d 657 (1976). Springfield is near Pittsfield, where Springside was located and this case originated...

Proxy Access Defenses…The Movie

Posted on October 15, 2010
Okay, it would be a pretty lame movie. Not nearly enough sex, betrayal, or death. Nevertheless it’s probably easier than reading the whole article. (If you are inclined to read the article first, which most people say is the best way to enjoy the movie, then check out Defending Against Shareholder Proxy Access: Delaware’s Future [...

“If no one else sues them, I will”

Posted on October 14, 2010
So says Nassim Nicholas Talem of Black Swan fame, referring to the Nobel committee for “legitimizing” economists, inducing reliance on their ideas, and thereby causing the financial crisis. According to the article, Taleb identified Harry Markowitz, Merton Miller and William Sharpe for their work on portfolio theory...

Justin Wolfers on Recessions and the Economics of Marriage

Posted on October 14, 2010
As per usual, Justin Wolfers is there to clean up misconceptions about the data and explain what is really going on. As it turns out, claims that recessions have killed marriage have been grossly exaggerated. Here’s a picture Justin shows to demonstrate the point (the gray bars are recessions)...

Do Republicans Hate Behavioral Economics?

Posted on October 13, 2010
Ezra Klein has an interesting blog post covering Peter Diamond’s nomination to Federal Reserve Board. The standard refrain in this debate has been something like: “See! The Republicans blocked Diamond and now he won the Nobel — don’t they look silly now...

Close corporations in the age of LLCs

Posted on October 13, 2010
On Friday I’m joining Eric Gouvin, Lyman Johnson, Mark Loewenstein, Bob Thompson, Dan Kleinberger, Benjamin Means, Doug Moll, Deborah DeMott and Massachusetts Justice Francis X. Spina at a Western New England College conference on “Fiduciary Duties in the Closely Held Firm 35 Years after Wilkes v...

Markets and art

Posted on October 13, 2010
We often seem to assume that market competition is inconsistent with great art. In fact this is not true. People like good art, especially rich people, and therefore will pay for it. Consider, for example, the state of movies and television today. Edward Jay Epstein (HT MR) notes that while subscription television has had turn to [...

Zuckerberg as evil capitalist

Posted on October 11, 2010
I still haven?t seen ?The Social Network? (waiting to watch it at home), but that won?t stop me from writing about it, as long as others are. Gordon Crovitz, writing in today?s WSJ: The hit movie * * * is crafted through the lens of lawsuits brought by others seeking a piece of the company, [...

Information vs. advice

Posted on October 11, 2010
I?ve been writing about the transition of the lawyer market from advice to information. I posted about my talk last Friday in Seattle. My article, ?Owning the Law,? with Bruce Kobayashi is in the works. So I was interested in the relevance to this project of Bloomberg Government, discussed in the NYT (HT Zaring)...

Nobel Prize for Unemployment Theory

Posted on October 11, 2010
Congratulations to Peter A. Diamond, Dale T. Mortensen, Christopher A. Pissarides for taking home the 2010 Nobel Prize. As Alex Tabarrok notes, this year’s prize can usefully be thought of as a prize for unemployment theory. See also Tyler Cowen’s profiles of Diamond, Mortensen, and Pissarides...

Cooper and Wright on Post and Hold Laws at the DOJ Antitrust Division Tomorrow

Posted on October 11, 2010
Tomorrow, I’ll be presenting my work with James Cooper (FTC), State Regulation of Alcohol Distribution: The Effects of Post & Hold Laws on Output and Social Harms, at the DOJ Antitrust Division in the Economic Analysis Group Seminar. We’ve received great critical feedback and suggestions for the paper thus far in earlier presentations and suspect [...

Does the Insider Trading Ban Apply to Congressional Staffers?

Posted on October 11, 2010
In a front-page article entitled Congress Staffers Gain from Trading in Stocks, the Wall Street Journal reports that “72 aides on both sides of the aisle traded shares of companies that their bosses help oversee.” That finding was based on an “analysis of more than 3,000 disclosure forms covering trading activity by Capitol Hill staffers [...

Congratulations…but let’s not over do it

Posted on October 11, 2010
I was waiting to write something about today’s announcement of the Nobel Memorial Prize in Economics being awarded to Diamond, Mortensen, and Pissarides. Josh has already provided his thoughts and provided links to comments by Ed Glaeser and Steve Levitt, respectively...

Choice of forum and corporate governance

Posted on October 10, 2010
Choice-of-forum provisions are potentially important in all contracts. Not only can they match the parties with expert and efficient adjudicators, but they can reinforce a choice-of-law clause because courts tend to apply forum law. See The Law Market, Ch...

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