Mergers, Antitrust, and the Interplay of Entrepreneurial Activity and the Investments That Fund It

Antitrust is in the news to an extent that it has not been for a generation. Senator Klobuchar (CALERA), senators Lee and Grassley (TEAMS Act), and, in a series of bi-partisan bills, various members of the House of Representatives all seek to rewrite antitrust law.  In particular, these bills aim to limit merger activity that is focused on acquisitions of smaller companies by larger technology companies, with the proposals ranging from presumptions of anticompetitive effects to outright prohibitions.

In a new working paper, we focus on the often overlooked implications of a change in antitrust law for venture capital, start-ups, … Read more

Debt, Control, and Collusion

The new wave of financial economics empirical scholarship has revitalized what had been theoretical discussions about the effects of common ownership in both economics and law.  Common ownership within the same industry by mutual funds may create incentives for those funds to maximize the returns of their portfolio through collusion rather than to maximize the value of any particular company within its portfolio.  An institutional investor that has stakes in firms A, B, and C, for example, enjoys a greater total profit from its entire portfolio if there is coordination across the firms and hence less competition.  A common owner … Read more

How to Address Nonprofit Governance Failures

Governance failures at for-profit corporations are the topic of frequent media stories, judicial opinions, and academic analyses. Nonprofit governance, however, has received significantly less attention. This lack of attention is not because nonprofits are immune from governance failures, and recent allegations against the National Rifle Association may prove the point. In our paper, Nonprofit Governance in an Age of Compliance,  we identify the factors that give rise to critical nonprofit governance failures, and we offer attainable reforms to address them.

Most nonprofit governance failures stem from the key legal difference between nonprofit and for-profit corporations. By law, nonprofits are … Read more

Reflections on Judicial Treatment of the Antitrust Treatise

With over 4000 citations in the Westlaw JLR database (most referencing his antitrust scholarship), Hovenkamp is one of the most cited legal scholars. His citations reflect an enormous body of work including the 21-volume Antitrust Law: An Analysis of Antitrust Principles and Their Application (“Treatise”)[1] upon which we primarily focus. Hovenkamp’s scholarship has shaped both academic and judicial discourse. Justice Breyer once remarked that litigants “would prefer to have two paragraphs of [the Areeda–Hovenkamp] treatise on their side than three Courts of Appeals or four Supreme Court Justices.”[2]

During the 1970s, antitrust began its revolution to a more … Read more

On Teaching Compliance

Compliance is a growth field in both legal education and practice. Overall, whether compliance teaching is geared towards students or individuals within a company, greater care and nuance must be taken in undertaking compliance teaching and training to reflect the inter-disciplinary and proactive elements of the creation of robust and effective compliance programs. Increasingly, this means that lawyers and law professors need to incorporate insights from other disciplines in their teaching to use more case studies.

Compliance is a growing field of practice across multiple areas of law. Increasingly companies put compliance risk among the most important corporate governance issues … Read more