Volume 3.1
December
2023

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Volume 3.1
Can Machines Commit Crimes Under U.S. Antitrust Laws?
Aslihan Asil
Yale University, PhD in Financial Economics 2024, Yale Law School, J.D. 2021

This paper benefitted from discussions with Ian Ayres, Matt Backus, Joe Harrington, Alex MacKay, Fiona Scott Morton, and Paulo Ramos. All errors are the authors’ own. Wollmann thanks the William Ladany Research Fund at the University of Chicago Booth School of Business for its generous support. The views expressed herein are those of the authors and do not necessarily reflect the views of the National Bureau of Economic Research.

Thomas G. Wollmann
Associate Professor of Economics and William Ladany Faculty Scholar, University of Chicago Booth School of Business, Faculty Research Fellow, National Bureau of Economic Research

This paper benefitted from discussions with Ian Ayres, Matt Backus, Joe Harrington, Alex MacKay, Fiona Scott Morton, and Paulo Ramos. All errors are the authors’ own. Wollmann thanks the William Ladany Research Fund at the University of Chicago Booth School of Business for its generous support. The views expressed herein are those of the authors and do not necessarily reflect the views of the National Bureau of Economic Research.

Generative artificial intelligence is being rapidly deployed for corporate tasks including pricing. Suppose one of these machines communicates with the pricing manager of a competing firm, proposes to collude, receives assent, and raises price. Is this a crime under U.S. antitrust laws, and, if so, who is liable?

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Volume 3.1
“Killer Acquisitions” Reexamined: Economic Hyperbole in the Age of Populist Antitrust
Jonathan M. Barnett
Torrey H. Webb Professor of Law, Gould School of Law, University of Southern California

I am grateful for comments from Or Brook, Harold Furchgott-Roth, Bo Heiden, Nicolas Petit, Daniel Sokol, David Teece, Selcukhan Unekbas, Matthew Wansley, John Yun, and participants at the European University Institute Competition Law Working Group, the University of Southern California Gould School of Law Faculty Workshop, and the Yale Law School-Hebrew University Law & Economics Conference. This project has been supported by the Berkeley Research Group Institute. Comments are welcome at jbarnett@law.usc.edu.

Major competition regulators, and substantial portions of the scholarly community, have rapidly adopted the view that “killer acquisitions” and “kill zones” constitute significant sources of competitive risk arising from incumbent acquisitions of emerging firms in digital markets. Based on this view, policymakers in the United States, European Union, and other jurisdictions have advocated for, and in some cases have taken, substantial changes to merger review policies that would erect significant obstacles to incumbent/startup acquisitions.

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Volume 3.1
Insider Abstention and Rule 10b5-1 Plans
David Rosenfeld
Associate Professor, Northern Illinois University College of Law

I would like to thank Joan Heminway for helpful comments on an earlier draft of this article.

Company insiders will typically be in possession of material non-public information (MNPI) about their companies. In order to allow insiders the opportunity to trade, the SEC adopted Rule 10b5-1, which provides an affirmative defense to insider trading liability if the trades are made pursuant to a written plan or trading instruction entered into when the trader was not aware of MNPI.

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Volume 3.1
Corporate Governance and Risk-taking: A Statistical Approach
Steven L. Schwarcz
Stanley A. Star Distinguished Professor of Law & Business, Duke University School of Law; Senior Fellow, the Centre for International Governance Innovation (CIGI); Founding Director, Duke Global Financial Markets Center

The author thanks Stephen M. Bainbridge, Christopher Buccafusco, Elisabeth de Fontenay, John de Figueiredo, Nicholas L. Georgakopoulos, Lorilee A. Medders and participants in a faculty workshop at Duke University School of Law for valuable comments and Justin Reed and Josh Rudd for invaluable research assistance.

Because prudent corporate governance often requires managers to take risks based on statistically expected outcomes, corporate failures that have a small but finite chance of occurring cannot always be prevented. This Article makes three related claims about risk-taking in corporate governance.

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Volume 3.1
The Ascertainable Standards that Define the Boundaries of the SEC’s Rulemaking Authority
Bernard S. Sharfman
Senior Corporate Governance Fellow at the RealClearFoundation; Research Fellow at the Law & Economics Center at George Mason University’s Antonin Scalia Law School; and member of the Journal of Corporation Law’s editorial advisory board

The opinions expressed here are the author’s alone and do not represent the official position of any organization with which he is currently affiliated. Moreover, this Article was not funded by any of the organizations that Mr. Sharfman is affiliated with. Mr. Sharfman would like to thank Amanda Rose, Lawrence A. Cunningham, Bryce Tingle, Alex Platt, and George S. Georgiev for their helpful comments. Mr. Sharfman is dedicating this Article to his wife, Susan Thea David, daughter, Amy David Beltchatovski, son-in-law, Elliot Beltchatovski, and granddaughter, Ava Beltchatovski. The catalyst for this writing was the short discussion of “in the public interest” found in Cass R. Sunstein and Adrian Vermeule’s book, Law & Leviathan: Redeeming the Administrative State 119-122 (2020).

On the heels of the U.S. Supreme Court’s decision in West Virginia v. Environmental Protection Agency, the “major questions” doctrine quickly came to be perceived as a significant impediment to the finalization of the Securities and Exchange Commission’s proposed rule on climate-related disclosures.