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Eric Posner

Articles by Eric Posner

The Antitrust War’s Opening Salvo

6 days ago

With a major new executive order calling for stronger enforcement of antitrust laws, Joe Biden has become the first president since Harry Truman to take a strong public anti-monopoly stand. And though his agenda will face insurmountable resistance in the courts, that does not mean it is futile.

CHICAGO – US President Joe Biden’s new executive order on “Promoting Competition in the American Economy” is more significant for what it says than for what it does. In fact, the order doesn’t actually order anything. Rather, it “encourages” federal agencies with authority over market competition to use their existing legal powers to do something about the growing problem of monopoly and cartelization in the United States. In

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Biden’s Antitrust Revolutionaries

June 18, 2021

A growing debate over the scope and purpose of US antitrust law has pitted traditional technocrats against an ascendant movement that is demanding stronger legislation and more aggressive enforcement. At stake are not just questions of pricing or output, but the proper functioning of American democracy.

CHICAGO – With the prominent anti-monopoly advocate Lina Khan having been appointed the new chair of the Federal Trade Commission, it is a good time to consider what influence the so-called New Brandeisians will have on US antitrust law. Khan is a leading figure in that movement, and another prominent exponent, Tim Wu, now sits on President Joe Biden’s National Economic Council. Arguing that antitrust law and

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An Interview with Eric Posner

June 1, 2021

This week in Say More, PS talks with Eric Posner, a professor at the University of Chicago Law School and the author of the forthcoming How Antitrust Failed Workers.

Project Syndicate: You’ve written that a right-wing Supreme Court is a major headwind for Joe Biden’s administration. But increasing the number of seats, you warn, is a “favored tactic of despots,” and Franklin D. Roosevelt’s attempt to use it “caused lasting political damage to his presidency.” Biden has now created a commission to examine a number of possible reforms, including introducing term limits for justices. What changes, if any, could mitigate the risks to Biden’s political agenda from an ideologically hostile Supreme Court while preserving America’s

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Long Live the Imperial Presidency?

May 12, 2021

Over time, the office of the US presidency has grown only more powerful, despite perennial hand-wringing by commentators and the party that is out of power. Though there are a number of possible explanations for this trend, the most straightforward is that it is what the public wants.

CHICAGO – One of the striking contrasts between the Trump and Biden administrations is in the debate about whether the presidency has achieved more power than is consistent with the public good. Donald Trump’s term in office was accompanied by a drumbeat of commentaries arguing that the presidency had become too powerful, enabling a madman or despot to destroy Americans’ liberties. The critics urged Congress and the courts to reassert themselves

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Antitrust Is Back in America

March 12, 2021

With growing momentum behind efforts to reform and strengthen US antitrust enforcement, a decades-long trend toward increasing market concentration may soon be confronted head-on. But enforcement alone will not cure what ails the US economy – especially not when US consumers themselves are smitten with the monopolists.

CHICAGO – President Joe Biden is signaling that his administration will get tough on monopoly. With the appointments of Columbia University law professors Timothy Wu to the White House National Economic Council and Lina Khan to the Federal Trade Commission (FTC), he has selected two well-known proponents of breaking up the Big Tech monopolies.

Why the Social Market Economy Succeeds

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Why Try Trump?

February 10, 2021

The case that the former US president incited an insurrection is not open and shut, which gives Republican senators all the justification they need to acquit him. But the real reason for convicting Trump and disqualifying him from holding office again is that he is reckless, irresponsible, and a menace to the public.

CHICAGO – Former President Donald Trump’s trial in the United States Senate has begun, but already a great deal of confusion has arisen about fundamental questions. Trump’s lawyers argue that the Senate is not permitted to hold a trial at all. The Constitution says that, “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and

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The Effort to Disqualify Trump Is Worth It

January 12, 2021

By opening the door for Donald Trump’s possible disqualification from future office-holding, a second impeachment would be justified, even if conviction and removal by the Senate is a long shot. Unlike his previous scandals, Trump’s attempts to undermine the 2020 election clearly rise to constitutional dimensions.

CHICAGO – On Friday, January 8, Speaker of the House Nancy Pelosi announced plans to impeach US President Donald Trump for the second time in a year, hoping to drive him from office before he does more damage to the country. The first effort, which began in December 2019 and ended last February, was futile and unwise, and ended up giving Trump a small political boost. This time around, Democrats again face

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The Trump Paradox

December 22, 2020

For all of the irresponsible and reprehensible things outgoing US President Donald Trump said while in office, he could not have posed as great a threat to liberal democracy as many of his critics have supposed. Trump’s entire political project has rested on a fundamental paradox that real authoritarian leaders know to avoid.

CHICAGO – As US President Donald Trump’s single term limps to an end, we should revisit a question that has dominated mainstream punditry for the past four years: Was America on the brink of an authoritarian takeover? Never before have so many commentators – including knowledgeable academics, seen-it-all-before political operatives, cynical journalists, and former government officials – argued as seriously

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America Passed the Trump Stress Test

December 7, 2020

After four years of President Donald Trump’s contempt for established political norms, it is tempting to say that American constitutional democracy has suffered long-term damage. But, as the 2020 election showed, the institutions of American democracy have emerged even stronger.

CHICAGO – The all-but-completed US presidential election has upset a range of lurid predictions. We were told that ballots would not be counted, voting machines would be hacked, state legislatures would order electors to defy the will of the people, armed thugs would intimidate voters, and riots would erupt – with the police taking the side of the “law and order” president. President Donald Trump, true to form, has indeed refused to concede, accused

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Biden’s Precarious Victory

November 6, 2020

After surviving a grueling election campaign and a cliff-hanger election, Joe Biden will most likely enter the White House with a significant achievement under his belt, but little to look forward to. Congressional Republicans and a right-wing Supreme Court will ensure that any attempt at meaningful reform or governance is dead on arrival.

CHICAGO – Joe Biden has survived a grueling election campaign and a cliff-hanger election. Next, he must fend off legal challenges from US President Donald Trump’s campaign. While he will most likely enter the White House on January 20, 2021, he will wonder when he gets there whether the prize he sought for so long is a poisoned chalice.

One America, Two

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Is the Long-Awaited Constitutional Crisis at Hand?

October 21, 2020

Throughout US President Donald Trump’s first term, there has been constant hand wringing over a "constitutional crisis" that never arrived. The irony is that an administration led by Joe Biden would almost certainly confront such a crisis, owing to Trump’s transformation of the Supreme Court into a right-wing redoubt.

CHICAGO – Since Donald Trump’s election in 2016, legal academics like me have been bombarded with emails from journalists asking whether the United States is undergoing or heading for a “constitutional crisis.” Most of these queries have been motivated by the president’s norm-busting, including his interference with Special Counsel Robert Mueller’s investigation of Russian interference in the election,

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What the US Election Is Really About

October 14, 2020

For all the hand wringing over Donald Trump’s authoritarian rhetoric, the 2020 US election is not really about the incumbent. It is about deep-seated suspicion regarding the national government’s role, which makes populism a recurring feature of American political history.

CHICAGO – Next month’s United States election is not about policy, nor is it even about President Donald Trump. It is about America’s constitutional system. This is not to suggest that the election could end that system. While Trump has an authoritarian temperament and admires dictators like Russian President Vladimir Putin, he is unlikely to become an autocrat even if he is re-elected. The real question that America faces concerns the role of

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Avoiding the Trump Trap

August 10, 2020

As US President Donald Trump’s popularity continues to drop ahead of November’s election, he has sought new ways to stoke the public fear and panic that led him to victory in 2016. For his presumptive opponent, Joe Biden, the best strategy may be to make Trump’s demagoguery a theme of his campaign.

CHICAGO – With Joe Biden’s lead in the polls, many Democrats and Republican Never-Trumpers are increasingly optimistic that US President Donald Trump will lose in November. But it would be a mistake to count Trump out. He has formidable advantages that will become more salient as the election nears. These advantages have nothing to do with his accomplishments or failures, and everything to do with his mastery of political

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The Impeachment Trap

October 1, 2019

America’s Democrats have made a serious mistake by launching impeachment proceedings against President Donald Trump. They are replaying the Republican impeachment of Bill Clinton in 1998, a futile exercise that damaged Republicans, enhanced Clinton’s power, and caused institutional damage as well.

CHICAGO – America’s Democrats have made a serious mistake by launching impeachment proceedings against President Donald Trump. They are replaying the Republican impeachment of Bill Clinton in 1998, a futile exercise that damaged Republicans, enhanced Clinton’s power, and caused institutional damage as well.
The Constitution Won’t Save American Democracy

Brendan Smialowski/Getty

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The Meritocracy Muddle

September 13, 2019

Populist resentment against "elites" is a recurring feature of modern democracy, owing to the fact that popular sovereignty is at odds with the careful management of increasingly complex economies. But what causes public discontent to explode at some times rather than others?

Mark Bovens and Anchrit Wille, Diploma Democracy: The Rise of Political Meritocracy, Oxford University Press, 2017.Robert H. Frank, Success and Luck: Good Fortune and the Myth of Meritocracy, Princeton University Press, 2016.Daniel Markovits, The Meritocracy Trap: How America’s Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite, Penguin Press, 2019.Tom Nichols, The Death of Expertise: The Campaign Against

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