Antitrust and Democracy (Syllabus)

ANTITRUST AND DEMOCRACY

Syllabus – Fall Semester 2022

University of Michigan

HUTCH242

Professor Dan Crane

(dancrane@umich.edu)

Office:  Jeffries 3076

Assigned Text

            Course Pack – Available on Canvas

            Many of the articles we will read are draft chapters in Bill Novak & Daniel Crane, Democracy and Antimonopoly (forthcoming, Oxford University Press). Please do not share these drafts or cite them (other than in papers for this course).

Topic/Assigned Reading

  • August 30: Antitrust and democracy—how do they interact?
    • Gordon Graham, Liberalism and Democracy
    • Louis Brandeis, The Curse of Bigness
    • Matt Stoller, Goliath: The 100-Year War Between Monopoly Power and Democracy (selection)
    • Daniel Crane, Antitrust as an Instrument of Democracy
  • Sept 6: Democratic roots of antimonopoly
    • Richard John, Rethinking the Monopoly Question: Commerce, Land, and Industry
    • Richard White, Antimonopoly/Anti-Trust
  • Sept 13: Labor, antitrust, and democracy
    • Kate Andrias, Labor’s Anti-Monopoly Agenda
    • Sanjukta Paul, Recovering the Moral Economy Foundations of the Sherman Act
    • Guest (5:30-6:30): Sanjukta Paul
  • Sept 20: Antimonopoly and Regulation
    • Naomi Lamoreaux, Antimonopoly and State Regulation of Corporations in the Gilded Age and Progressive Era
    • Bill Novak, Antimonopoly, Regulated Industries, & the Social Control of Corporate Capitalisms
    • Guest (5:30-6:30): Bill Novak
  • Sept 27: Economic concentration and political concentration
    • Robert Pitofsky, The Political Content of Antitrust
    • Tim Wu, The New Curse of Bigness (selection)
    • Daniel Crane, Democratizing by De-Cartelizing
  • Oct 4 (Yom Kippur): Antitrust and the news media
    • Sam Lebovic, Anti-Monopoly in the Media Industries: A History
    • Howard Shelanski, Antitrust Law as Mass Media Regulation
  • Oct 11: Race and antitrust
    • Kirk McLeod, TBA
    • Hifa Hafiz, Antitrust and Race
  • Oct 18: [No class—Legislative Monday]
  • Oct 24: Antitrust and wealth inequality
    • Jonathan Baker & Steve Salop, Antitrust, Competition Policy, and Inequality
    • Herbert Hovenkamp, Antitrust Policy and Inequality of Wealth
    • Daniel Crane, Antitrust and Wealth Inequality (short selection!)
  • Nov 1: Technocracy and populism
    • Harry First & Spencer Waller, Antitrust’s Democracy Deficit
    • Filippo Lancieri, Eric A. Posner & Luigi Zingales, The Political Economy of the Decline of Antitrust Enforcement in the United States
  • Nov 8: (Election Day—class will be rescheduled per institutional policy) Anti-domination as a democratic ideal
    • Sabeel Rahman, Democracy Against Domination (selections)
    • Zephyr Teachout & Lina Khan, Market Structure and Political Law: A Taxonomy of Power
  • Nov 15: Big Tech and democratic accountability
    • TBA
  • Nov 29: Student presentations

Weekly paper presentations: Each student will be asked to present one of the papers we will be reading to the rest of the class. (Assignments will be made after the first week of class). The presentation should be 5-10 minutes. Because everyone will be presumed to have read the paper, the presentation can begin with a very short summary of key arguments or themes. Most of the presentation should be spent in raising questions about the paper that can be used as springboards for wider class discussion.

Research paper: Student grades will be based primarily on an original research paper written over the course of the semester. (The other component will be class participation—see below). The paper is due on December 30, 2022—I’m giving you two weeks after the end of the exam period, but there are three important due dates before that:

  • October 7: Students should e-mail me a one-page proposal for their topic. It should contain a preliminary thesis and organizational sketch, as well as some indication of the sources the student intends to rely on.
  • November 11: Students should e-mail me a preliminary draft of approximately 10 pages (12 point font, double-spaced). It does not need to be anything like a complete paper yet, but should show your progress in writing the paper and allow me an opportunity to provide guidance on its direction.
  • November 29: In-class student presentations. On the last day of class, each student will present their thesis for 5 minutes, followed by 5 minutes of class discussion on your presentation. Since you will still have a month to complete the final paper, it’s fine to highlight areas in which you are continuing to do research. The class discussion may be helpful to sharpening your focus, pursuing new angles, etc.
  • December 30: Final paper is due (again, by e-mail). It should be approximately 20-25 pages (12 point font, double-spaced). References should be in footnotes. I’m not going to be Blue Booking, but try to make it look roughly like something that would appear in a law review. If you don’t know what that means, consult a few recently published articles in the Michigan Law Review and try to mimic the overall format.

Students should pick topics that are germane to the course. It should be an original research paper that makes a new contribution to the literature. It should have a thesis. A thesis is more than a “topic.” It’s an argument. An argument can be either normative (“this is what ought to be done”) or descriptive (“this is what is”). A good normative thesis is not just “here’s what other people have said about this issue, and here’s my opinion.” A good descriptive thesis does not merely state the obvious. Good theses of any variety bring new knowledge to bear on a legal problem.

For a short paper written over the course of one semester, it may seem like a big ask to write an original research paper, so you will likely want to pursue depth over breadth. Select a narrow topic and go into it deeply. Here are some possible examples (these are just brainstorming suggestions—doesn’t have to be one of these):

  • Focus on a particular organization (i.e., labor union, civil rights organization, trade organization) and research anything it has said or done on antitrust issues. What does it tell us about the interaction between democracy and antitrust?
  • Focus on a particular company and chart the relationship between antitrust enforcement against or in favor of the company and the company’s political activities (i.e. lobby, joining amicus briefs, etc.).
  • Select a particular case that reflects competing perspectives on democracy and antitrust. Dig into the record, amicus briefs, media accounts, etc.
  • Dig into the legislative history of some statute (probably not the Sherman Act!) and see what can be gleaned about monopoly and democratic values.
  • Focus on a transformational moment in the politics of some country that transitioned from one perspective on concentrated economic power to another.
  • Pick what Prof. Felix Chang has called an “ethnically segmented market” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3690003) and describe the role that competition and antitrust enforcement does, could, or should play in social ordering.
  • Take a deep dive into a smallish market. For example, look at the effect of competition and antitrust enforcement (or the lack of it) in a particular city’s newspaper market and the effects on political diversity, etc.

Before you lock into a particular topic, make sure that you will have enough source material to write a strong, original paper. (This is one of the important functions of the October 7 proposal). Since time is short, make sure that you will be able to access the materials you want this semester. Here are some suggestions of the kinds of source materials to consider (in addition to standard legal sources like reported decisions, statutes, etc.):

  • Online archives. For example, the University of California at Santa Barbara has a digitized, publicly available database of presidential speeches. (https://www.presidency.ucsb.edu/). Here’s a source for Supreme Court Justices working papers: https://www.scotusblog.com/2013/08/accessing-the-papers-of-supreme-court-justices-online-other-resources/. Here’s a source for the NAACP’s online archives: https://proquest.libguides.com/historyvault/NAACP. Look around; much of the world is at your fingertips!
  • Physical archives. For example, the Bentley Historical Library on north campus (https://bentley.umich.edu/) has treasure troves of unique archival material. Or, if you happen to be in D.C. for interviews, a friend’s wedding, or a protest march, schedule a few hours to go through some archives and snap pictures of any relevant documents.
  • Secondary source material (i.e., books, articles, monographs) on the history of particular organizations.
  • Westlaw or Lexis. Lots of legal (i.e., amicus briefs) and non-legal (newspaper articles) sources are readily available.
  • Government reports, particularly if you are not just repeating the Government’s conclusions, but drawing on data or other material collected in the report.
  • Interviews. Identify someone currently involved in issues relating to antitrust and democracy and see if they’ll give you 15 minutes of their time.
  • If you’re interested in a particular topic and unsure of where you might find relevant material, brainstorm with our reference librarians.

If two or more students wish to work on a paper jointly, that’s fine (although clear it with me first).

Statement regarding class participation:  This is a small seminar in which each student’s participation is critical to their own learning and to their classmates’. Class participation will factor into final grades. Students are expected to attend and participate in all classes unless excused in advance by the instructor. (There is, of course, a force majeure exception for last-minute emergencies—reasonableness is the life of the law, and applies here too). That said, no one should feel coerced to participate on any issue or question that makes them personally uncomfortable. If the instructor calls on you and the question makes you uncomfortable, you are free to pass. If that occurs, please try to get back into the conversation as soon as you feel comfortable doing so.

Statement regarding learning outcomes: Students are expected to engage at a high level with legal, economic, political, ideological, social, and historical currents relating to the intersection of antitrust law and democracy. They are expected to become familiar with leading arguments from multiple viewpoints on these issues and to ask critical questions about the various theses under consideration. They are also expected to improve their research and writing skills by preparing and presenting an original research paper under the instructor’s supervision.

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