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Workers' labor market power matters enormously to their lives at work and beyond. And most workers have too little of it. This Essay highlights one underappreciated set of factors in the decline of workers' labor market power and explores policy levers that might help to rebalance the bargaining field. This Essay begins with the fairly self-evident observation that workers' labor market power is a product in part of the ease with which employers can replace employees. That points to the importance of several trends in the organization and technology of work—including both fissuring and automation—that make it easier for private sector employers to replace employees either with other workers or with machines. The central argument here is that the proliferation of employee-replacement techniques helps to explain workers' shrinking labor market power. That leads to the question of what, if anything, to do about it. The idea of rebalancing bargaining power through regulation (as opposed to redistributing income through tax-and-transfer schemes) is controversial among economists; but it has long been central to the lawof work. This Essay proceeds to describe how current U.S labor and employment law does and doesn't constrain firms' employee-replacement options. Finally, it considers some alternative policy options for rebalancing bargaining power by constraining employee replacement—chiefly, job security protections and institutions of codetermination, including works councils—along with some empirical evidence of their likely economic effects.

Recent empirical work on labor markets reveals that they are beset by frictions, including high levels of concentration and frequent collusion, contrary to the traditional view of labor markets as being perfectly competitive. The implications of this work for law and policy have only begun to be explored. The 'University of Chicago Law Review' convened a symposium to bring together scholars from various disciplines and with different subject matter expertise but with a common interest in understanding the regulation of labor markets in light of new empirical results. The papers delivered at the symposium have been published in this symposium issue.

Anticompetitive conduct toward upstream trading partnersmay have the effect of benefiting downstream consumers even as the conduct harms the firms' workers or suppliers. Defendants may attempt to justify their upstream conduct—and may rely on the ancillary restraints doctrine in doing so—on the grounds that the restraints create efficiencies benefitting downstream purchasers, rather than focusing solely on the impact of the restraints on the workers or suppliers in the upstream market. Such balancing of harms against out-of-market benefits achieved by a different group should be rejected by antitrust doctrine generally, and specifically in the case of harms to workers. This type of out-of-market balancing is not supported by either economic analysis or the basic goals of the antitrust laws. Antitrust's consumer-welfare prescription properly protects the trading partner participants (e.g., workers) in any relevant market who are harmed by anticompetitive restraints. Doctrinal and practical considerations weigh against allowing that protection to be traded against out-of-market benefits flowing to other groups. This proposition flows both ways; putting aside antitrust exemptions, it is similarly inconsistent with antitrust doctrine to permit firms to coordinate in ways that harmdownstream purchasers, based on a purported justification that this purchaser harm is offset by the out-of-market benefits to the workers. We conclude that in all cases, multimarket balancing that treats out-of-market benefits as cognizable justifications for the restraints on workers or other input suppliers should be rejected. However, since courts may not agree in some limited circumstances such as two-sided platforms, we also briefly discuss howand in what circumstances such balancing might be undertaken. We apply this analysis to a series of real and hypothetical scenarios that raise paradigmatic issues involving these potential conflicting effects as they relate to workers. We also apply our analysis to a likely post-Alston case attacking the NCAA restraints on noneducation payments to student-athletes, in light of the points made in Justice Brett Kavanaugh's concurrence in Alston.

Due to a lack of competition among employers in the labor market, employers have monopsony power, or power to pay workers less than what the workers contribute to the employers' bottomline. \"Worker power\" is workers' ability to obtain higher wages and better working conditions. While the antitrust agencies have just begun developing policy and enforcement strategies to regulate employer monopsony, broader government policies that impact market forces, the formation of labor market institutions, and workers' voices and exit options also play a defining role in shaping worker power relative to employers. For example, in addition to antitrust enforcement, worker power can be enhanced by labor agencies' regulation of employer/employee status, wage and working condition floors, and workers' collective action. Worker power can also be enhanced by agencies administering social safety net protections and influencing labor market tightness through monetary policy. Scholars have yet to assess how federal agencies, whose statutory authority and regulatory purview impact worker power, could best direct their authority, regulatory tools, and expertise towards labor market regulation in the presence of employer monopsony power. This Essay outlines the comparative advantages of federal agencies' regulations impacting worker power. It then develops a checklist of worker power indicators for agencies to track and operationalize in high-priority policy and enforcement areas and offers a broader worker power agenda through a whole-of-government approach involving interagency coordination to protect and strengthen workers' voice and exit options.

Drawing upon data from the largest cross-country study of labor market concentration to date, this Essay analyzes the level of concentration of labor-input markets in Europe and North America and provides a comparative perspective on employers' monopsony power. It explores the characteristics of monopsony in labor markets and documents its impact by looking at the magnitude of employer concentration in selected jurisdictions. Using a harmonized dataset of online vacancies, this Essay shows that European labor markets are no more competitive than North American ones. It also supports the view that the effects of concentration on labor markets are broadly similar in both Europe and North America, despite the much stronger labor market institutions in Europe. The Essay shows that there is no apparent economic or legal justification for a lack of enforcement activity by European competition authorities in labor markets relative to the United States. While enforcement action has picked up in the last two years in Europe, there is likely still scope for a significant increase in the role of competition enforcement in labor markets. The Essay identifies sectors and practices that may be scrutinized with priority by European competition authorities and proposes a mix of enforcement, merger control, and well-targeted policy and regulatory solutions to address employers' monopsony power.

Not long ago, economists denied the existence of monopsony in labor markets. Today, scholars are talking about using antitrust law to counter employer wagesetting power. While concerns about inequality, stagnant wages, and excessive firm power are certainly to be welcomed, this sudden about-face in theory, evidence, and policy runs the risk of overlooking some important concerns. The purpose of this Essay is to address these concerns and, more critically, to discuss some tensions between antitrust and labor law, a more traditional method for regulating labor markets. Part I addresses a question raised in the very recent literature, about why antitrust has not been a traditional tool of labor market regulation. Part II addresses some drawbacks in the social objectives of antitrust regulation, namely, the so-called consumer welfare standard or, as proposed for the labor market, the \"worker welfare\" standard, and suggests an alternative standard. Finally, Part III asks whether antitrust is an appropriate response to labor market monopsony. That Part shows that there are some significant tensions between antitrust and labor law and, given those tensions, explains why more traditional methods of wage regulation, collective bargaining, and even minimum wage legislation offer some distinct advantages.

Horizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product-market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These and related factors stabilize collusive arrangements and facilitate tacit coordination in labor markets. The implications for antitrust law are explored.

This Essay is about firms as a type of economic coordination and about how we think about them in relation to other forms of coordination as well as in relation to competition and markets. A prominent stream of thought about firms—which has both strongly influenced contemporary competition law and, more indirectly, served as a support to the fundamental ideas of neoclassical price theory that guide many areas of law and policy—ultimately explains and justifies the centralization of both decision-making rights and flows of income from economic activity on productive efficiency grounds. The Essay makes two simple points, drawing upon and synthesizing prior contributions where relevant. First, we have very good reasons to doubt this approach as explanation because power perpetuation by incumbent control groups is often a better explanation for such centralization (of coordination rights and income flows) than productive efficiency. Second, we should also be skeptical of the approach as justification because it often either takes as given (or assumes away) contested legal rules that also affect productive efficiency outcomes; because the approach's conception of productive efficiency is impoverished; and because the nature of competition and markets itself gives us no good reasons to limit the normative bases for our legal choices about economic coordination to productive efficiency alone. Together, these points ought to ultimately change our starting points for evaluating policy across a range of areas of antitrust, corporate, and labor law.

This Essay considers antitrust and consumer protection liability for coercive practices vis-à-vis drivers that are prevalent in the rideshare industry. Resale price maintenance, nonlinear pay practices, withholding data, and conditioning data access on maintaining a minimum acceptance rate all curtail platform competition, sustaining a high-price, tacitly collusive equilibrium among the few incumbents. Moreover, concealing relevant trip data from drivers is both deceptive and unfair when the platforms are in full possession of the relevant facts. In the absence of these coercive practices, customers too would be better off due to platform competition, which would lower average prices by sharpening competition between incumbents, enable entry by rivals charging lower take rates, and unravel pervasive price discrimination. Coercive practices in the rideshare industry and elsewhere, and the business models they enable, result from the preference for hierarchy and domination inherent in the contraction of liability for vertical restraints since the 1970s.

The field of antitrust and labor has gone through a profound change in orientation. For the great bulk of its history, labor was viewed by antitrust enforcers as a competitive threat. The debate over antitrust and labor was framed around whether there should be a labor \"immunity\" from the antitrust laws. In just the last decade, however, the orientation has flipped. Most new writing views labor as a target of anticompetitive restraints imposed by employers. Antitrust is increasingly concerned with protecting labor rather than challenging its conduct. Antitrust interest in labor markets is properly focused on two things. The smaller concern is the impact of anticompetitive restraints in the labor market, such as anti-poaching agreements and noncompete covenants. While antitrust enforcement in this area is critically important, these restraints cover only a portion of the employment market. The bigger labor interest is in output-reducing restraints in product markets, and here antitrust policy has unfortunately had little to contribute. The demand for labor is derivative of product-market demand. If firms do not produce goods, workers do not work. Because most labor is a variable cost, the demand for employment varies with product output. As a result, when antitrust pursues a goal of higher output in product markets, it benefits labor and consumers alike. Both antitrust's neoliberal Right and its progressive Left have advocated policies that are harmful to labor. The Right did so by developing a cynical vision of \"consumer welfare\" that incorporated producer profits into the definition and advocated for lower output in product markets. The Left has done the same thing with its hostility to large firms, even when firm size is dictated by scale economies or network effects, and its protection of small business.