Volume 3.1

December

2023

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.

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.

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.

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

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.

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).