133 lines
4.3 KiB
YAML
133 lines
4.3 KiB
YAML
abstract: 'Growing inequality, the decline in labor''s share of national income, and
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increasing evidence of labor-market concentration and employer buyer
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power are all subjects of national attention, eliciting wide-ranging
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proposals for legal reform. Many proposals hinge on labor-market fixes
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and empowering workers within and beyond existing work law or through
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tax-and-transfer schemes. But a recent surge of interest focuses on
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applying antitrust law in labor markets, or ``labor antitrust.{''''} These
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proposals call for more aggressive enforcement by the Department of
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Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger
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legal remedies for employer collusion and unlawful monopsony that
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suppresses workers'' wages.
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The turn to labor antitrust is driven in part by congressional gridlock
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and the collapse of labor law as a dominant source of labor market
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regulation, inviting regulation through other means. Labor antitrust
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promises an effective attack because agency discretion and judicial
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enforcement can police labor markets without substantial amendments to
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existing law, bypassing the current impasse in Congress. Further, unlike
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labor and employment law, labor antitrust is uniquely positioned to
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challenge industry-wide wage suppression: suing multiple employers is
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increasingly challenging in work law as a statutory, doctrinal, and
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procedural matter.
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But current labor-antitrust proposals, while fruitful, are fundamentally
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limited in two ways. First, echoing a broader antitrust policy crisis,
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they inherit and reinvigorate debates about the current consumer welfare
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goal of antitrust. The proposals ignore that, as a theoretical and
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practical matter, employers'' anticompetitive conduct in labor markets
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does not necessarily harm consumers. As a result, workers''
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labor-antitrust challenges will face an uphill battle under current law:
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when consumers are not harmed, labor antitrust can neither effectively
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police employer buyer power nor fill gaps in labor market regulation
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left by a retreating labor law. Second, the proposals ignore real
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synergies between antitrust enforcement and labor regulation that could
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preempt the rise of employer buyer power and contain its exercise.
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This Essay analyzes the limitations of current labor-antitrust proposals
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and argues for ``regulatory sharing{''''} between antitrust and labor law
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to combat the adverse effects of employer buyer power. It makes three
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key contributions. First, it frames the new labor antitrust as
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disrupting a grand regulatory bargain, reinforced by the Chicago School,
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that separated labor and antitrust regulation to resolve a perceived
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paradox in serving two masters: workers and consumers. The dominance of
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the consumer welfare standard resolved that paradox. Second, it explains
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how scholarly attempts to invigorate labor antitrust fail to overcome
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this paradox and ignore theoretical and doctrinal roadblocks to
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maximizing both worker and consumer welfare, leaving worker-plaintiffs
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vulnerable to failure. Third, it proposes a novel restructuring of labor
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market regulation that integrates antitrust and labor law enforcement to
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achieve coherent and effective regulation of employer buyer power. It
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refocuses labor-antitrust claims on consumer welfare ends. In doing so,
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it also relegates worker welfare considerations to a labor law
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supplemented and fortified by the creation of substantive presumptions
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and defenses triggered by labor-antitrust findings as well as labor
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agency involvement in merger review.'
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affiliation: 'Hafiz, H (Corresponding Author), Boston Coll, Law Sch, Law, Newton Ctr,
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MA 02459 USA.
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Hafiz, Hiba, Boston Coll, Law Sch, Law, Newton Ctr, MA 02459 USA.'
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author: Hafiz, Hiba
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author_list:
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- family: Hafiz
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given: Hiba
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da: '2023-09-28'
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files: []
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issn: 0041-9494
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journal: UNIVERSITY OF CHICAGO LAW REVIEW
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keywords-plus: LAW
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language: English
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month: MAR
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number: '2'
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number-of-cited-references: '82'
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pages: 381-411
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papis_id: 7f18de6d11270df3b96d9f843f9cc3e7
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ref: Hafiz2020laborantitrusts
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times-cited: '15'
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title: Labor Antitrust's Paradox
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type: Article
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unique-id: WOS:000517669900005
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usage-count-last-180-days: '0'
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usage-count-since-2013: '4'
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volume: '87'
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web-of-science-categories: Law
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year: '2020'
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