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87.4
The Golden Share: Attaching Fiduciary Duties to Bankruptcy Veto Rights
Yiming Sun
BA 2018, University of California, Los Angeles; JD Candidate 2021, The University of Chicago Law School.

I wish to thank Professors Douglas Baird and Anthony Casey, as well as The University of Chicago Law Review editors, for their guidance and advice throughout the writing process.

Suppose you are a large investment fund that just loaned money to a company. Like many large lenders, you secured the loan with the company’s equipment as collateral. But unfortunately, the company missed an interest payment and defaulted under the terms of its notes. What’s worse, it subsequently filed for bankruptcy.

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87.4
The Case for Noncompetes
Jonathan M. Barnett
Torrey H. Webb Professor, University of Southern California, Gould School of Law.

We thank Shyam Balganesh, Norman Bishara, Michael Burstein, Richard Castanon, Bryan Choi, Victor Fleischer, Lee Fleming, Ronald Gilson, John Goldberg, Robert Gomulkiewicz, Charles Tait Graves, Michael Guttentag, Ryan Holte, Justin Hughes, David Levine, Orly Lobel, Greg Mandel, Karl Mannheim, Matt Marx, Adam Mossoff, Natasha Nayak, Ruth Okediji, David Orozco, Eric Posner, Greg Reilly, Michael Risch, Ben Sachs, David Schwartz, Joseph Singer, Henry Smith, Kathy Spier, Matt Stephenson, James Stern, Olav Sorenson, Evan Starr, David Taylor, Saurabh Vishnubhakat, Polk Wagner, and Stephen Yelderman, as well as attendees at the 2015 Works in Progress in Intellectual Property Conference, the 2017 Conference of the American Law and Economics Association, and workshops at Harvard Law School, University of Pennsylvania Law School, Loyola Law School, Los Angeles, the Center for Law and the Social Sciences at the University of Southern California School of Law, and the University of San Diego School of Law for their helpful discussions and comments on prior versions of this paper. We also thank Carolyn Ginno, Matthew Arnold, Anna Ayar, Vanand Baroni, Haley Dumas, Ryan Foley, David Javidzad, Rachel Stariha, and Millicent Whitemore for their valuable research assistance.

Ted Sichelman
Professor of Law, University of San Diego School of Law.

On February 23, 2017, two titans of Silicon Valley went to war in federal court: Google filed a lawsuit against Uber, accusing it of using intellectual property allegedly stolen by one of the lead engineers on Waymo, Google’s self-driving automotive subsidiary. Specifically, Google alleged that Anthony Levandowski had misappropriated Google’s intellectual property before departing (along with other Google engineers) to found Otto, a self-driving car startup subsequently acquired by Uber for $680 million.

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87.4
The Spectrum of Procedural Flexibility
Ronen Avraham
Professor of Law, Tel Aviv University Faculty of Law; Lecturer, University of Texas at Austin School of Law.

We are grateful for comments from Bob Bone, Alon Klement, Shay Lavie, Jay Tidmarsh, Diego Zambrano, and participants at the Law Faculty Workshops at the University of Chicago, the University of Notre Dame, Tel Aviv University, and the University of Texas School of Law, as well as the 2018 ALEA Annual Meetings. We thank Ramon Feldbrin, Kathryn Garcia, Sakina Haji, Deanna Hall, Adam Picker, Jill Rogowski, and Kelly Yin for valuable research assistance. William Hubbard thanks the Paul H. Leffmann Fund and the Jerome F. Kutak Faculty Fund for research support.

William H.J. Hubbard
Professor of Law, The University of Chicago Law School.

Introduction

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87.3
The Origins of Substantive Due Process
Ilan Wurman
Visiting Assistant Professor and incoming Associate Professor, Sandra Day O’Connor College of Law, Arizona State University.

Thanks to William Baude, David Bernstein, Nathan Chapman, and John Harrison; to the participants of the 2018 Rocky Mountain Junior Faculty Colloquium, the 2019 Federalist Society Young Legal Scholars panel, and the 2019 University of Richmond Junior Scholars Workshop; and in particular to my colleagues Zack Gubler, Rhett Larson, Kaipo Matsumura, Trevor Reed, Josh Sellers, Bijal Shah, and Justin Weinstein-Tull for their early interventions. Thanks also to Jessica Kemper and Katherine Johnson for tremendous research assistance.

There has been renewed interest in recent years in the original understanding of “due process of law.” In a recent article, Professors Nathan Chapman and Michael McConnell argue that historically, due process meant only that an individual could not be deprived of life, liberty, or property without a general and prospective standing law, the violation of which had been adjudicated according to a certain minimum of common-law judicial procedures.

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87.3
Some Doubts About “Democratizing” Criminal Justice
John Rappaport
Assistant Professor of Law and Ludwig and Hilde Wolf Research Scholar, University of Chicago Law School.

I am indebted to Monica Bell, Merav Bennett, Stephanos Bibas, Andrew Crespo, Justin Driver, Roger Fairfax, Trevor Gardner, Bernard Harcourt, Emma Kaufman, Brian Leiter, Richard McAdams, Tracey Meares, Martha Nussbaum, Dan Richman, Jocelyn Simonson, Roseanna Sommers, and Fred Smith for terrific comments on drafts. Thanks as well to Will Baude, Genevieve Lakier, Lauren Ouziel, and participants at the Criminal Justice Roundtable, the Junior Criminal Justice Roundtable, the University of Chicago Works-in-Progress Workshop, and the University of Virginia Faculty Workshop for generative conversations. For research assistance, thanks to Merav Bennett, Dylan Demello, Morgan Gehrls, Alli Hugi, Kevin Kennedy, and especially Alex Song. The Darelyn A. and Richard C. Reed Memorial Fund furnished financial support.

For the uninitiated, a brief rehearsal of the facts of the matter: The United States presently incarcerates over two million individuals, with another four million under other forms of correctional supervision.

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87.3
The Architecture of a Basic Income
Miranda Perry Fleischer
Professor of Law, University of San Diego School of Law, mirandafleischer@ sandiego.edu.

The Douglas Clark and Ruth Ann McNeese Faculty Research Fund at the University of Chicago Law School provided financial support for this project. For helpful comments, the authors thank Leslie Book, David Gamage, Eric Hemel, Kevin Kennedy, Benjamin Leff, Elisabeth Mayer, Susan Morse, Anna Stapleton, André Washington, Matt Zwolinski, Lawrence Zelenak, participants at the Brigham Young University Law School Tax Policy Colloquium, the Duke University School of Law Tax Policy Colloquium, the 2018 National Tax Association Annual Meeting, and editors of The University of Chicago Law Review.

Daniel Hemel
Assistant Professor of Law, University of Chicago Law School, dhemel@ uchicago.edu.

The notion of a universal basic income, or UBI, has captivated academics, entrepreneurs, policymakers, and ordinary citizens in recent years. Across the globe, countries ranging from Brazil to Finland, the Netherlands, Italy, Kenya, Uganda, and Canada are conducting or have recently concluded pilot studies of a UBI.

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Essay
87.2
The Chicago School and the Forgotten Political Dimension of Antitrust Law
Ariel Katz
Associate Professor, University of Toronto, Faculty of Law.

The Chicago School, said to have influenced antitrust analysis inescapably, is associated today with a set of ideas and arguments about the goal of antitrust law. In particular, the Chicago School is known for asserting that economic efficiency is and should be the only purpose of antitrust law and that the neoclassical price theory model offers the best policy tool for maximizing economic efficiency in the real world; that corporate actions, including various vertical restraints, are efficient and welfare-increasing; that markets are self-correcting and monopoly is merely an occasional, unstable, and transitory outcome of the competitive process; and that governmental cures for the rare cases where markets fail to self-correct tend to be “worse than the disease.”

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87.2
The Case for “Unfair Methods of Competition” Rulemaking
Rohit Chopra
Commissioner, Federal Trade Commission. The views expressed here are Commissioner Chopra’s and do not necessarily reflect those of the Commission or any other individual Commissioner.

For thoughtful engagement and comments, we are grateful to Scott Hemphill, William Kovacic, Fiona Scott Morton, Nancy Rose, Jonathan Sallet, Carl Shapiro, Sandeep Vaheesan, and Joshua Wright, as well as staff at the FTC and participants in the Symposium on Reassessing the Chicago School of Antitrust Law at The University of Chicago Law School. We also thank the editors of The University of Chicago Law Review for careful editing.

Lina M. Khan
Academic Fellow, Columbia Law School; Counsel, Subcommittee on Antitrust, Commercial, and Administrative Law, US House Committee on the Judiciary; former Le-gal Fellow, Federal Trade Commission. This Essay reflects Ms. Khan’s views and not those of the US House Committee on the Judiciary or any of its members.

Open, competitive markets are a foundation of economic liberty. A lack of competition, meanwhile, can enable dominant firms to exercise their market power in harmful ways.

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87.2
Startup Acquisitions, Error Costs, and Antitrust Policy
Kevin A. Bryan
Assistant Professor, University of Toronto Rotman School of Management.
Erik Hovenkamp
Assistant Professor, University of Southern California Gould School of Law.

High tech industries are not only lucrative, but also highly innovative and dynamic. Large firms are not their sole source of innovation, however.

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87.2
The Common Ownership Trilemma
José Azar
Assistant Professor, University of Navarra, IESE Business School, Av Pearson, 21, 08034 Barcelona, Spain, jazar@iese.edu.

I gratefully acknowledge the financial support of Secretaria d’Universitats i Recerca del Departament d’Empresa i Coneixement de la Generalitat de Catalunya. Ref. 2016 BP00358.

Overlapping ownership of large publicly traded companies in the United States has grown dramatically in recent decades. The list of largest shareholders of almost any publicly traded company has a similar set of shareholders, namely the largest asset managers.