Labor

Eric Posner examines how businesses exploit cultural expectations to frame certain activities as non-work, creating a form of monopsony power that allows them to extract labor without compensation in areas ranging from college athletics to digital content creation. He argues that properly classifying these "invisible" forms of work as compensable labor would benefit society, challenging anti-commodification concerns and highlighting the law's struggle to define work in these blurred contexts.

Steven C. Salop recommends that the next presidential administration continue to focus competition policy on protecting against adverse labor market outcomes. He suggests several policies the administration might pursue to achieve these benefits.

Dylan Gyauch-Lewis reviews the Supreme Court’s recent spate of rulings redefining administrative law and how they threaten the National Labor Relations Board’s authority.

Sharon Block writes that after Loper Bright, there remain many questions about how the courts will treat the discretionary rulemaking authority of the National Labor Relations Board to protect workers’ right to choose to join unions and act collectively. While precedent suggests the NLRB could retain most of its power to issue and enforce rules, the recent history of a Supreme Court that has shown little favor toward workers or government intervention suggests a narrower reading of the NLRB’s authority may be coming.

Jake Goidell argues that the ongoing NCAA lawsuit settlements will not create a lasting solution unless athletes form a players association that is involved in determining industry-wide decisions.

Matthias Breuer, Wei Cai, Anthony Le, and Felix Vetter find that gender minority representation on German works councils helps to improve worker welfare and productivity.

Diana Moss and Jason Gold write that the major private antitrust lawsuit involving how the National Collegiate Athletic Association governs compensation for college student athletes overreaches by remaking the model of college sports in the United States. Instead, the paradigm shift in college athletics should be deliberated and decided through the legislative process.

Eric A. Posner argues that merger review would benefit from involving union representatives to protect labor interests.

Gus Hurwitz replies to Jonathan Masur and Eric Posner’s May 8 article defending the Federal Trade Commission’s Congressional mandate to enforce a rule banning noncompetes. He argues that Congressional responses to FTC rulemaking in the 1970s suggest courts are unlikely to find that the FTC possesses such authority, either as a matter of statutory interpretation or under the major questions doctrine.

Jonathan Masur and Eric Posner argue that the Federal Trade Commissions’ recent ban on noncompete clauses is lawful under the plain language of the Federal Trade Commission Act, longstanding court precedent, and well-established administrative law principles.