38 Comments
Jan 18, 2023Liked by Matt Stoller

Matt is one serious pain in the ass, but as long as he isn't doing it to me I really enjoy it. 😎

But seriously, THIS is the guy people are using to guide all the rules? It's kind of comical how easy it was for Matt to illustrate that he is both pulling things out of his ass and expecting never to be questioned. His attitude of "this is complex stuff that only I understand" is absurd.

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Jan 18, 2023·edited Jan 18, 2023Liked by Todd Mentch

This is why the guy was chosen, because he gives the preferred answers. If his "scholarship" didn't favor the powerful, he'd be ignored. Just like the evidence is ignored

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Just like Bork.

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Just like Bryer

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Just like Bryer

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It's a way to lean on social status and power mystique to get someone that questions you to STFU.

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Jan 18, 2023Liked by Matt Stoller

Matt, a scholar whose analysis rises to the very top of his or her discipline seldom admits that their analysis is flawed or wrong because that analysis is no longer simply an intellectual discussion but rather it has become the essence of that scholar’s personal being. “Vanity of vanities and everything is vanity.”

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Jan 18, 2023Liked by Matt Stoller

Frankly, I appreciate the pettiness. It's probably way Too Online, but it's ridiculously irritating seeing supposed "experts" (who are very highly trusted!) smugly post completely incorrect information on Twitter and blithely ignore when they're proven to be completely wrong, over and over.

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Jan 18, 2023Liked by Todd Mentch

You learn a lot about a person when they are wrong but won't admit it.

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They are not honest with themselves.

So are they honest with you ? Probably not.

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Me too! This was frustrating to examine and I was checking and re-check assuming I missed something, but that linked article is SO CLEAR! ERG, yes, pettiness please!

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Jan 18, 2023Liked by Matt Stoller

Matt, I'm a retired academic and I hate to break this to you: A lot of "important scholars" take part in intellectually dodgy behavior. 😉

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Matt, you're being too kind.

Seems pretty obvious Hovenkamp is just another dime-a-dozen asshole who got rich whispering sweet lies into the ears of people richer than he, so he can feast on their table scraps.

How dumb do they think we are - if the people who forced people to sign noncompetes paid the highest wages, then they wouldn't need the noncompetes - that is, unless the employee left a fat paycheck because of terrible work/life balance, hostile workplace/sexual harassment, etc.

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Yes this one particularly sticks because there's really no "fundamental" reason to support non-competes, no one would want them for themselves.

Frankly, it's fairly obvious on competitive, ethical, and moral grounds there's really no reason to support non-competes, so the only line of argument is handwave-y spurious "economic" arguments that they could be useful in "some circumstances."

And they want a complex, technocratic enforcement of non-competes because they can still have the chilling effect on wages & competition that is preferred because the average person can't afford to litigate.

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founding

Great piece! No one who has been an employee both in California and somewhere that allows noncompetes would ever think that they are favorable to employees. Along with all of Hovenkamp's errors that have been well skewered by Matt and others here, he has forgotten to occasionally come out of his ivory tower and assess the situation on the ground.

The thing that the business lobby doesn't understand about noncompetes is that they advantage existing businesses over new ones, ultimately dragging down the vitality of the economy as a whole. Venture capitalists in particular should be lobbying to outlaw them.

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Let’s tally up all of the logical fallacies this Hovenkamp piece of work resorted to during and after his Twitter Convo with Matt, shall we?

-- False Cause (his core misinterpretation of Starr’s paper: Correlation is not causation)

-- Appeal to Complexity & Ambiguity (he continued to insist that he had not misinterpreted the paper he cited even after being corrected by Starr, the very author of that paper as well as other scholars; he also insisted no one had corrected him, either)

-- Moving the Goalposts (he made an ever-so-slight edit to his article to resolve his misinterpretation of Starr’s paper as minimally as possible. Surely no one will notice…? HA, BUSTED!)

-- Appeal to Authority (I think we can predict he’ll resort to this logical fallacy when he’s called out on all of the above in the future: he will probably rattle off all of his accolades as an indisputable intellectual god of antitrust knowledge; ‘how dare you commoners question me!’ ;)

All to placate his odious pro-non compete Confirmation Bias.

Dime-a-dozen asshole, indeed.

(+1 to @StanleyTwoBrix for his accurate assessment ;)

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You are speaking truth to power. Thank you.

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Here’s a more fundamental problem with this economic style of reasoning: the tendency to (as Taleb says) to particularize the general and generalize the particular. If something is rational across the average of a large number of people, then it’s rational for each individual across time, and vice versa.

In this case, if Bob (a highly skilled, specialized, highly paid, and in-demand worker) can use a non compete to negotiate an even higher wage or a platinum exit package, he can skew the group income average of all workers under non-competes. It’s the classic “Bill Gates walks into a bar and on average, everyone in the bar is a billionaire” situation. It’s a fallacy of composition. It’s the one outlier point on the scatter chart that changes the slope of the regression line.

Never mind that a great seething mass of disempowered workers are trapped under the thumb of petty managers using non competes. Their incomes are not high enough to tilt the regression line. The economists simply don’t consider individual power to be a parameter in their equations.

We see this all the time. Policy A increases GDP (a group average) so therefore it’s good for all individuals. Nobody asks “Whose GDP? Which GDP?”

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The big question is of course : How is the GDP distributed ?

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"Hovenkamp believes that workers like non-competes because they get to bargain with employers for higher wages, offering to sign a non-compete in return. That assumption, and Hovenkamp’s statement, is astonishing, because it’s almost certainly untrue." Agree with you Mr. Stoller. Absolutely. Whenever I was asked to sign one, countless others were asked as well. It was never an invitation to negotiate. It was diktat. Hovenkamp needs to get out and about more.

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"elevating theory over substance so much that highly trained thinkers make basic errors", is not that just a good description of most economists?

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There is another problem with a lot of current "status quo" economists.

Not acknowledging and taking into account, that there are (large) power disparities between the different participants in the economy.

Translating in clout or lack of clout.

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Jan 19, 2023·edited Jan 20, 2023Liked by Matt Stoller

To paraphrase Hovenkamp's snarky tweet above, if anyone received their entire legal education from him, they'd come away with the impression that law is dictated by the dogma of expert witnesses it happens to consider evidence from.

His hornbooks start with a full chapter on economics before they ever acknowledge history, common law, or the text of the statutes. Even his "Black Letter Outline of Antitrust" starts with a chapter on economics.

Contrast that with other legal hornbooks. To pick a few examples that popped up on Amazon:

- Principles of Environmental Law: First chapter is the "Clean Water Act." Opens with a close reading of particular statutory language, and a discussion of case law interpreting key disputed phrases.

- The Law of Securities Regulation: First chapter is "The Basic Coverage of the Securities Laws." It gives an overview of the sources of securities law, from federal statutes to the SEC's administrative rulemaking.

- Principles of Patent Law: First chapter is "Introduction to the Law of Patents." It notes the relevant laws and role of the USPTO, then moves on to norms and rights.

Note that any of the above areas of law could involve evidence from expert witnesses (including economists). Those fields just haven't been swallowed whole and contorted in the same way that antitrust apparently has been.

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Fascinating. “because protecting a theory of how the economy works is more important than actually understanding how the economy works.” - this line says it all.

It would seem the anti-trust bar is a misnomer for a governing body of legal scholars who are very much pro-trust and pro-monopoly.

There can be nothing more anti-competitive than a NON-COMPETE agreement. It’s so glaringly obvious that its defenders have to engage in cognitive dissonance to offer justifications for it.

Also, speaking strictly from the physician ( higher wage earner) side, most of those workers don’t read their own contracts. They have attorneys do it for them.

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This guy has such an obvious agenda he is pretzel-ing himself to circle back around to loop through his own lies and tricks. The definition of gaslighting... Congratulations to Matt for the patience and perseverance, and hopefully creating at least some irritation/inconvenience for this particular weasel...

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Jan 19, 2023·edited Jan 19, 2023

“And since lawyers are exempt from non-competes, one would expect this highly paid class to be clamoring for the higher wages non-competes would bring. Unsurprisingly, they aren’t.” I wonder if Hovenkamp has ever signed one of these supposedly wage-increasing agreements. Otherwise, he’s defending hypocrisy: “Non-competes are great for thee but not for me!”

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founding

Mr. Hovenkamp got a good skewering, and he deserved it. Thanks, Matt, for calling out and correcting his intellectual dishonesty. Why would he sustain a position in the absence of any hard (i.e., causation-related) evidence? While we might never know, it sure appears that Hovenkamp simply wanted to speak to his crowd, and when he felt the pressure, he doubled down by implicitly denying the legitimacy of the issues posed by non-competes. So, we have intellectual dishonesty at the top of the anti-trust intellectual food chain, but we also have people and institutions committed to flattening monopoly power. Now, all we need are revised textbooks to show the way.

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