University of Chicago Law School professor Randy Picker passed away this weekend. Saul Levmore, a colleague at the Law School, remembers Randy’s contributions to law scholarship and the University.
Does law matter?
One theme of Randy Picker’s work was to delve into the details of the success and failure of firms and industries. Firms like AT&T and IBM were dominant but eventually, famously, gave way to other firms. Randy studied the rise and fall of many firms, and especially tech firms, and then tried to examine the role that law played in their demise. In the case of these two firms, he painstakingly covered the legal case against AT&T and that firm’s government-induced breakup, and then also studied the government’s hostility to IBM and, again, that firm’s fall from grace. One of Picker’s great strengths was that very little of his work reads like a brief. He was always a bit unsure of causes and effects. A master of the Socratic method in print as well as in the classroom, his questions were at least as compelling as his analyses and conclusions. Where AT&T and IBM are concerned, it is possible that law really mattered. Randy showed this with careful attention to the lives of these firms, to their industries, and then to the possible role that legal attacks and settlements had on the firms. Still, he left us unsure about the role of law because counterfactuals are just that.
Randy’s interest in this sort of legal history extended to the nature of competition law and antitrust law. In other work we learned about the origins of antitrust law and its insistence that there was nothing bad about successful firms, innovation, and monopoly itself. Antitrust law was designed to topple old-fashioned trusts and reduce their suppression of valuable competition. Randy told the story of law’s slow evolution toward a suspicion of firm success and size, seen most clearly today in the European Union, but Randy rarely took a strong position in contrast, say, to Robert Bork’s work some time ago. Randy explained the rise of Apple, Facebook, and other firms, but in a manner that left the reader understanding that these large and successful firms will also lose their places at the top of the list. I think it fair to say that much of Picker’s work was innovative in its bringing law-and-economics to bear on legal history. Randy loved exploring the details of each firm’s evolution, and then linking these details to how law changes over time, responding to political winds and well-placed individuals’ intuitions about what would good for markets. Most of us do not have the patience or knowledge for this kind of work, and we will all be worse off without Randy’s enthusiasm for the details and for his uncertainty about what to admire and what to criticize.
Randy also had a continuing interest in Copyright Law and particularly in a combination of Competition Law and Copyright. In my opinion, his very best work—worth reading over even after 20 years—is Unbundling Scope-of-Permission Goods: When Should we Invest in Reducing Entry Barriers? The article first draws a line between different kind of public (and semi-public goods) and then suggests means of regulation. The focus is on copyright where there is no marginal cost to the producer from another user (like the reader of a book) but where there is an ability to exclude. Think—as Randy always did —of firms like Microsoft that do not need copyright law to exclude further users. He calls these scope-of-permission goods. Consumption is non-rivalrous, and increments to the good can be added at zero marginal cost. Thus, Windows could add Internet Explorer just as the American Society of Composers, Authors and Publishers could add any number of users in bars or restaurants. The more the producer can add features, and price at will, the more difficult it is for a competitor to enter the industry and carve out a set of clients. In that case, Randy dropped his usual inclination to ask more questions than to provide answers. He proposed imposing must-carry obligations so that Microsoft, for example, could have been required to offer choices alongside the one it owned and controlled. The combination of brilliant thinking about competition law alongside a deep appreciation of copyright and technology is something that no other scholar has brought to these fields.
There are plenty of other things to miss about Randy Picker. As his children came of age he developed a new appreciation for the role that teaching plays in academic careers. An excellent teacher in timely subjects, Randy captured more than a fair share of antitrust as well as copyright students. He came to recognize (and often said) that we probably reach as many minds through teaching as we do through our scholarship. Once he saw this from his own son’s perspective, he was determined to attract yet more students to his way of thinking. I think it no accident that he took up improvisational comedy at about this time. A somewhat shy teacher became an expert at delivering humor as well as academic insights. Apparently, Law-and-Economics can be entertaining as well as well as insightful.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
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