Some recent non-academic writing: antitrust and labor; covid and the courts

Senator Klobuchar’s Antitrust Bill Doesn’t Go Far Enough, ProMarket, March 22, 2021

The End of Amateur Hour for the NCAA, Project Syndicate, April 7, 2021

Long Live the Imperial President?, Project Syndicate, May 12, 2021

Biden’s Antitrust Revolutionaries, Project Syndicate, June 18, 2021

The Supreme Court’s NCAA Ruling Has Huge Implications Outside of Sports, Washington Post, June 22, 2021

The Antitrust War’s Opening Salvo, Project Syndicate, July 21, 2021

COVID and the Conservative Economic Crack-up, Project Syndicate, August 24, 2021

In Emergencies, Judges Usually Defer to Politicians. Not during the Pandemic, Washington Post, August 24, 2021

Constitutional Challenges to Public Health Orders in Federal Courts during the COVID-19 Pandemic

A new paper on SSRN, written with Kenny Mok.

Abstract. We examine federal judicial cases involving non-religious civil-liberties challenges to COVID-19-related public health orders from the start of the pandemic to June 29, 2021. Consistent with the tradition of judicial deference toward the state during emergencies, we find a high level of success for governments. However, governments did lose in 13.7% of the cases, and in those losses, there is evidence of partisan or ideological influence. Republican-appointed judges were more likely to rule in favor of challengers when they brought claims based on gun rights and property rights, while Democratic-appointed judges were more likely to rule in favor of challengers when they brought claims based on abortion rights. We conclude by arguing that courts should exercise greater deference to public health orders issued during emergencies.

It’s out!

revision

You can buy it here. And some humbling comments:

“How do we recognize a demagogue when we see one? In this insightful book, Eric Posner shows us that although democracies are inherently vulnerable to demagogues, America has seen remarkably few of them. Until now. The Demagogue’s Playbook makes a compelling case that Donald Trump differs from nearly all other flawed, dishonest, or populist politicians that have passed through American politics. He is a true demagogue―a living manifestation of one our Founders’ greatest fears. This is an important read for anyone concerned about the fate of American democracy.”
―Steven Levitsky, Harvard University, and New York Times bestselling co-author of How Democracies Die

“Professor Posner has made an outstanding, superbly written analysis of how Donald Trump has drawn on the ‘demagogue’s playbook’ to win a presidency that is severely testing our constitutional democracy. He provides crucial historical perspective on the demagogue as a distinctive and dangerous brand of leader in the American political experience―and on the erosion of the protections that the Founders hoped to have built against a full-fledged demagogue’s capture of the White House. It is hard to imagine understanding the Trump presidency and its significance without reading this book.”
―Bob Bauer, Former Chief Counsel to President Barack Obama

“A brilliant and highly original discussion of one of the most important topics of the current era. Essential reading if you want to understand the world today.”
Cass Sunstein, the Robert Walmsley Professor of Law, Harvard Law School, and co-author of the international bestseller, Nudge: Improving Decisions About Health, Wealth, and Happiness

“In a calm tone and with careful research and keen reasoning, Eric Posner illuminates the interplay of elitism, demagoguery, and populism in American politics, past and present. With a refreshing, sensible clarity, he cuts through the hyperbole and hysteria that often distorts assessments of our republic, particularly at this time.”
―Alan Taylor, Pulitzer Prize winning historian of William Cooper’s Town: Power and Persuasion on the Frontier of the Early Republic and The Internal Enemy: Slavery and War in Virginia 1772–1832

“Moving through a series of political and historical events and personalities, including Andrew Jackson, Huey Long, Joseph McCarthy and Donald Trump, Posner illuminates the characteristics that make someone a “demagogue,” including vicious personal attacks on political opponents, divisive accusations against vulnerable groups, the intentional spreading of lies, and efforts to undermine such fundamental institutions as the press and the judiciary. This work is necessary reading for anyone who wants to understand the challenges we, as a nation, face in the era of Trump.
Geoffrey R. Stone, Edward H. Levi Distinguished Professor of Law, The University of Chicago, and author of Perilous Times,winner of the Los Angeles Times Book Prize

“A magnificent book that traces the concepts of populism and demagoguery throughout American history. The book is hopeful in that the country has survived other demagogues and frightening in reminding us of how such a man can come to power.”
Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law, and bestselling author of We the People: A Progressive Reading of the Constitution for the 21st Century

“Eric Posner is an incisive guide and a wise advisor as he leads us through the history and conditions that gave rise to two disruptive American demagogues, Andrew Jackson and the more dangerous Donald Trump. He takes us on this journey so that we may understand, with clear eyes, what we have done, and to recognize the scale of the attack we face against our own democratic institutions.”
―Tom Nichols, author of The Death of Expertise

Meritocracy / Noncompetes

I have posted a review of various books relating to meritocracy at Project Syndicate.

And here is a new paper that asks why antitrust law is so easy on covenants not to compete:

Abstract. Employee covenants not to compete bar workers who leave their jobs from working for a competing employer for a period of time. The common law regards noncompetes as restraints of trade and imposes a “reasonableness” standard on them; they can also be challenged under the antitrust laws. But new research suggests firms frequently abuse noncompetes, causing significant harm to workers and to the economy. The existing legal approach is inadequate because the common law offers minimal sanctions and antitrust law imposes excessive burdens of proof on plaintiffs. While antitrust law is the appropriate vehicle for challenging noncompetes because of its focus on market effects, it needs to be strengthened.

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School