Volume 2.2
June
2023

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Article
Volume 2.2
Antitrust Reform in the Digital Era: A Skeptical Perspective
Robert W. Crandall
Nonresident Senior Fellow, Technology Policy Institute, Washington, DC

rcrandall228@gmail.com

Thomas W. Hazlett
Hugh H. Macaulay Endowed Professor of Economics, Clemson University

hazlett@clemson.edu

The rise of large digital platforms, accompanied by claims of increasing industrial concentration, has prompted calls for antitrust policy reform. Yet, the observed market trends are consistent with improvements in welfare, as economies of scale often decentralize effective choices and disintermediate previously dominant structures, unleashing entrepreneurship.

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Volume 2.2
Proceduralism: Delaware’s Legacy
Dalia T. Mitchell
Professor of Law and John Marshall Harlan Dean’s Research Professor of Law, The George Washington University

For their comments on earlier drafts, I am grateful to Harut Minasian, Esq., to participants in a faculty workshop at Rutgers Law School, and to the students in my Fall 2022 Corporations Law seminar. The George Washington University Summer Research Fund provided financial support. All errors are mine.

This article examines the Delaware courts’ 1980s shift from managerialism to a theory I label proceduralism. I argue that managerialism, which justified corporate law’s deference to directors in the preceding fifty years, was corporate law’s response to social, political, and cultural concerns outside corporations.

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Volume 2.2
The Chinese Antitrust Paradox
Wentong Zheng
Professor of Law, University of Florida Levin College of Law

I thank Donald Clarke, Mary Gallagher, Nicholas Howson, Benjamin Lieberman, Julia Ya Qin, Angela Huyue Zhang, and participants in the “China’s Legal Construction Program at 40 Years: Towards an Autonomous Legal System?” conference at the University of Michigan Law School for helpful comments on an earlier draft of the article.

Antitrust law faces a fundamental paradox between protecting competition and protecting competitors. This paradox is more structurally durable in China than in Western societies thanks to the oversized role of the Chinese state in its economy. This Article examines the changing market conditions in China following the adoption of China’s Antimonopoly Law (AML), and how these changes have led to paradoxical developments in Chinese antitrust.

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Comment
Volume 2.2
How to Fix DOJ Privilege Teams
Anna Dincher
J.D. Candidate 2024, University of Chicago Law School

Many thanks to Professor Anthony Casey for his thoughtful insights and charitable guidance. Thank you to the University of Chicago Business Law Review editorial staff, and special thanks to J.P. Callahan for incredibly helpful feedback.

The federal government frequently executes searches and seizures in the course of criminal investigations. Many of the premises searched contain materials protected by privileges, placing them outside the reach of the Department of Justice. However, again and again those materials are swept up, potentially landing in the hands of government attorneys who are not permitted to review them—placing defendants’ Sixth Amendment right to effective assistance of counsel at risk of being violated.

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Comment
Volume 2.2
The Commission Goes to Walmart: Changing Patterns of FTC Enforcement
Jed Greenberg
J.D. Candidate 2024, University of Chicago Law School

The FTC Act allows the FTC to recover monetary relief only in certain circumstances. Under Sections 5 and 19, the Commission can recover monetary relief in federal court by showing that a party violated a final cease and desist order issued through administrative processes. Until recently, the FTC extensively used Section 13 of the Act, which courts had interpreted to provide some pathways to monetary relief.

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Comment
Volume 2.2
A Disclosure Gap in the Market for Order Flow
Joshua Nathanson
J.D. 2023, The University of Chicago Law School

I am grateful to Professor Joshua Macey and Anna Nathanson for their invaluable comments and edits.

Wholesalers in U.S. equity markets are once again a focus of the SEC and scholarly debate. In this Comment, building on the empirical work of Schwarz, et. al. (2022), I present a model of the broker-wholesaler relationship based on the duty of best execution under FINRA Rule 5310 and the antifraud provisions of the federal securities laws as well as public disclosures by brokers and wholesalers.

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Comment
Volume 2.2
Workers of the World, Differentiate: Expanding Protections for Workers in the Age of Labor Antitrust
Sarah Hammond Roberts
B.A. 2020, The University of California, Berkeley; J.D. Candidate 2024, The University of Chicago Law School

Many thanks to the entire University of Chicago Business Law Review, especially Spencer Parts, and to Professor Randal Picker for help and comments. I would like to especially thank Professor Eric Posner for his thoughtful suggestions regarding this Comment, and his guidance in thinking about labor antitrust.

Antitrust has traditionally served consumers—how can the law regulate firms in a manner that prevents monopolization and preserves competition among sellers of goods? A recent turn in scholarship and shifting application of antitrust law from a regulatory perspective suggests the possibility for a broader expansion of antitrust protections into the labor market.