Hiba Hafiz - Academia.edu (original) (raw)

Papers by Hiba Hafiz

President Biden’s recent Executive Order on Promoting Competition brought much-needed attention t... more President Biden’s recent Executive Order on Promoting Competition brought much-needed attention to labor market concentration, employer collusion, and abusive employment contracts that suppress wages and diminish labor’s share of national income. But while the Order recognized the necessity of a “whole-of-government” approach to employers’ monopsony power over workers, it could go further to more fully tackle the sources of that power and mobilize the collective resources of government to combat them

Social Science Research Network, Jan 9, 2020

Social Science Research Network, Nov 2, 2019

University of Chicago Law Review Online, 2020

University of Chicago Law Review, 2020

Growing inequality, the decline in labor's share of national income, and increasing evidence of l... more Growing inequality, the decline in labor's share of national income, and increasing evidence of labor-market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor-market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or "labor antitrust." These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses workers' wages. The turn to labor antitrust is driven in part by congressional gridlock and the collapse of labor law as a dominant source of labor market regulation, inviting regulation through other means. Labor antitrust promises an effective attack because agency discretion and judicial enforcement can police labor markets without substantial amendments to existing law, bypassing the current impasse in Congress. Further, unlike labor and employment law, labor antitrust is uniquely positioned to challenge industry-wide wage suppression: suing multiple employers is increasingly challenging in work law as a statutory, doctrinal, and procedural matter. But current labor-antitrust proposals, while fruitful, are fundamentally limited in two ways. First, echoing a broader antitrust policy crisis, they inherit and reinvigorate debates about the current consumer welfare goal of antitrust. The proposals ignore that, as a theoretical and practical matter, employers' anticompetitive conduct in labor markets does not necessarily harm consumers. As a result, workers' labor-antitrust challenges will face an uphill battle under current law: when consumers are not harmed, labor antitrust can neither effectively police employer buyer power nor fill gaps in labor market regulation left by a retreating labor law. Second, the proposals ignore real synergies between antitrust enforcement and labor regulation that could preempt the rise of employer buyer power and contain its exercise. This Essay analyzes the limitations of current labor-antitrust proposals and argues for "regulatory sharing" between antitrust and labor law to combat the adverse effects of employer buyer power. It makes three key contributions. First, it frames the new labor antitrust as disrupting a grand regulatory bargain, reinforced by the Chicago School, that separated labor and antitrust regulation to resolve a perceived paradox in serving two masters: workers and consumers. The dominance of the consumer welfare standard resolved that paradox. Second, it explains how scholarly attempts to invigorate labor antitrust fail to overcome this paradox and ignore theoretical and doctrinal roadblocks to maximizing both worker and consumer welfare, leaving worker-plaintiffs vulnerable to failure. Third, it proposes a † Assistant Professor of Law, Boston College Law School. I am deeply grateful to Eric Posner, Sanjukta Paul, Brian Callaci, and the participants of the Reassessing the Chicago School of Antitrust Law Symposium for their helpful comments and suggestions. The University of Chicago Law Review [86:381 novel restructuring of labor market regulation that integrates antitrust and labor law enforcement to achieve coherent and effective regulation of employer buyer power. It refocuses labor-antitrust claims on consumer welfare ends. In doing so, it also relegates worker welfare considerations to a labor law supplemented and fortified by the creation of substantive presumptions and defenses triggered by laborantitrust findings as well as labor agency involvement in merger review.

Tennessee law review, 2016

BEYOND LIBERTY economic rights protections. It argues for the benefits of integrating economic co... more BEYOND LIBERTY economic rights protections. It argues for the benefits of integrating economic coercion claims so understood within an economic rights framework, moving beyond both liberty-focused and progressive realization models of coercion towards a model of benchmarking protections from coercion in horizontal, or private law, adjudication. 1. JAMES G. STEWART, CORPORATE WAR CRIMES: PROSECUTING THE PILLAGE OF NATURAL RESOURCES (2011) (surveying doctrines of corporate liability for pillage). See, e.g., Mitchell N. Berman, Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 GEO. L.J. 1 (2001) (examining the constitutionality of conditioning government benefits on waiver of constitutional rights through the concept of coercion). 2016] 3. For "constitutive commitments," see CASS R. SUNSTEIN, THE SECOND BILL OF RIGHTS: FDR's UNFINISHED REvOLUTION 61-62 (2004) for a discussion of rights lacking constitutional status but are "widely accepted and cannot be eliminated without a fundamental change in social understanding." While no scholarly accounts link U.S. economic coercion claim adjudication with the evolution of economic rights within the human rights tradition, scholars have taken varying positions on the U.S.'s commitment to such rights. See, e.g., Abdullahi A. An-Na'Im, Conclusion in HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS 428-29 (A. An-Na'Im ed. 1995) (inclusion of economic, social, and cultural rights in Universal Declaration was because "Third World countries. .. insisted on. .. recognition of individual economic and social rights"); ANTONIO CASSESE, HUMAN RIGHTS IN A CHANGING WORLD 35 (1994) (Western nations agreed to incorporate economic rights into Universal Declaration only in "second stage"); Jack Donnelly,

Social Science Research Network, Nov 17, 2020

Wisconsin Law Review, 2018

In an era when administrative agency actions succeed or fail based on the thoroughness and rigor ... more In an era when administrative agency actions succeed or fail based on the thoroughness and rigor of their cost-benefit analyses and expertise, the 1940 statutory ban on hiring economists at the National Labor Relations Board (NLRB) is a shocking anachronism. The ban, accompanied by the Board's failure to solicit external expertise, severely limits the success of the Board's actions on judicial review, its institutional competency, and its ability to assess the economic effects of its labor regulation in achieving a central goal of the National Labor Relations Act: equal bargaining power between workers and their employers that secures competitive wages and increases worker purchasing power.

SSRN Electronic Journal, 2021

Trust-busting is once again a subject of national attention. And the attention is well-deserved: ... more Trust-busting is once again a subject of national attention. And the attention is well-deserved: unprecedented levels of corporate concentration, firm dominance, and inequality demand robust debate about how antitrust solutions can ensure that our economy works for everyone. One simple remedy to “bigness” has stolen the spotlight within that debate—“breaking up” big firms into smaller ones to decrease corporate power and lower prices. But calls to break up firms from Big Tech to Big Ag have focused on how breakups could benefit consumers and, in some cases, small businesses. Absent from these debates is how breakups benefit or harm the workers and labor markets affected by firm dismantling. This Article is the first to focus on how firm breakups—and antitrust enforcement and remedial design more generally—can and have significantly impacted workers’ countervailing power and earning potential. Firm structure matters for worker power. Dismantling dominant firms can result in more firms competing for workers’ services, which can lift their wages. But it can also dismantle structures of worker power that have arisen to successfully counter dominant employers. A leading example, as this Article documents, is the devastating effect of the breakup of the Bell System in the 1980s on the Communications Workers of America, gutting union density within the telecommunications industry from 56% pre-breakup to 24% by 2001. Breakups, much like workplace “fissuring”, can decimate labor market institutions that advocate on workers’ behalf, but also have and can result in layoffs, increased obstacles for worker coordination, lower overall wage rates, and dramatic reductions in earned benefits, job security, and the quality of working conditions. The Article fills the gap in antitrust scholarship and policy debates that have ignored the effects of antitrust remedies on workers. It offers the first comprehensive scholarly treatment of these effects and argues that, for historical, theoretical, and empirical reasons, antitrust enforcers and scholars must attune their prescriptions and remedial mechanisms to ensure that antitrust remedies do not perpetuate the long history of antitrust’s alternating hostility or disregard for worker welfare. It begins by summarizing the debates around firm breakups and reveals their disregard for labor market competition and worker welfare. It then unearths case studies and social scientific analyses to assess the effects of breakups and offers both a theoretical and empirical overview of when breaking up firms can benefit or harm labor market competition and workers’ countervailing power against dominant employers. It concludes by proposing alternative remedies to monopolization and corporate consolidation that better secure worker welfare.

U.S. Administrative Law eJournal, 2020

After 9/11, Congress, federal agencies, and scholars exposed the devastating results of the natio... more After 9/11, Congress, federal agencies, and scholars exposed the devastating results of the national security agencies’ failure to coordinate. The financial crisis has been linked to similar coordination failures in the context of interagency banking regulation, with jurisdictional gaps and blind spots resulting in failure to prevent a global recession. But despite Gilded Age-levels of inequality, little attention has focused on the failures of interagency coordination to secure Americans’ access to economic opportunity through work—whether through securing higher wages and higher union density, coordinating government enforcement to achieve redistributive goals and combat consolidation of employer buyer power, or overcoming systemic abuses in employers’ wage theft, discrimination, and worker mistreatment. The crippling spread of the coronavirus (COVID-19) pandemic demands that now, more than ever, agencies coordinate in their regulation of labor markets to accomplish micro- and mac...

Law & Society: Private Law - Labor & Employment Law eJournal, 2017

The rise of the contingent and gig economies and of outsourced and subcontracted work has left ma... more The rise of the contingent and gig economies and of outsourced and subcontracted work has left many workers with insufficient bargaining power to successfully negotiate collective bargaining agreements with their direct employers. This problem is exacerbated by a statutory ban on worker picketing and boycotts of non-employers, or “secondaries,” even where those employers: collude with direct employers on wage-fixing or the suppression of union activity; have monopsony power over direct employers; or have substantial indirect control over worker wages through contractual arrangements. This Article is a crucial intervention in modernizing the labor law on worker picketing in the New Economy. It first outlines the current distinction between direct and “secondary” employers under the National Labor Relation Act’s secondary picketing ban. It then provides an overview of New Economy work arrangements and developments in economic theory necessary for updating the law on this distinction a...

Law & Society: Private Law - Labor & Employment Law eJournal, 2019

Growing inequality, the decline in labor’s share of national income, and increasing evidence of l... more Growing inequality, the decline in labor’s share of national income, and increasing evidence of labor market concentration and employer buyer power are all subjects of national attention, eliciting wide-ranging proposals for legal reform. Many proposals hinge on labor market fixes and empowering workers within and beyond existing work law or through tax-and-transfer schemes. But a recent surge of interest focuses on applying antitrust law in labor markets, or “labor antitrust.” These proposals call for more aggressive enforcement by the Department of Justice (DOJ) and Federal Trade Commission (FTC) as well as stronger legal remedies for employer collusion and unlawful monopsony that suppresses workers’ wages. The turn to labor antitrust is driven in part by congressional gridlock and the collapse of labor law as a dominant source of labor market regulation, inviting regulation through other means. Labor antitrust promises an effective attack because agency discretion and judicial en...