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Einer Elhauge

  • People standing at polling station

    Voting rights, big money and Citizens United: Scholars explore issues in election law

    September 15, 2016

    With the U.S. presidential election weeks away, Harvard Law Today offers a look back at what scholars from campus and beyond had to say in recent months about democracy's challenges in a series of talks on Election Law.

  • The down view of index funds

    September 6, 2016

    ...Index funds are guided not by the wizardly stock-pickers of old but by number crunchers who buy lists of representative securities and hold them, rise or fall. They have cut costs and boosted profits for large and small investors. But U.S. and European professors scrutinizing the impact of the Big Three index-fund purveyors - BlackRock Inc., Vanguard Group, and State Street Corp. - say they see, in the triumph of indexing, not just a cheap way for investors to squeeze profits but also threats to capitalism as we know it...Joint control over major companies by few large U.S. investment managers "can help explain fundamental economic puzzles, including why corporate executives are rewarded for industry performance" instead of just their own, "why corporations have not used recent high profits to expand output and employment, and why economic inequality has risen," writes Einer Elhauge, professor at Harvard Law School, in an essay on "Horizontal Shareholding" in the Harvard Law Review that cites Azar's work at length.

  • Horizontal Shareholding, Antitrust, Growth and Inequality

    July 4, 2016

    Corporate profits are at record highs, economic growth is low, formation of new companies has been low for years, and inequality is close to Gilded Age levels. Professor Einer Elhauge from Harvard Law School believes that all these phenomena can at least partly be explained by a common problem. To prove his point he combines very recent empirical and theoretical economics literature that has been gaining attention in the last few years with some insight into regulatory activities that go back more than 70 years.

  • Petrie-Flom, 10 years on: Celebrating the future of health law and policy

    April 14, 2016

    On March 29, the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School celebrated its first decade and kicked off the next with a conference that focused on the future of health law and policy.

  • Is Passive Investment Actively Hurting the Economy?

    March 9, 2016

    If you have so much as tiptoed into the arena of personal finance over the past few decades, you will have heard about the virtues of passive investing. ...In a discussion paper written last year, Einer Elhauge, a law professor at Harvard University, found that index-fund ownership was having a similar effect in the airline industry, where nearly eighty per cent of all stocks are owned by a handful of investors. Elhauge argues that institutional investors with an emphasis on index funds, such as Vanguard and Fidelity, are playing an outsized role in the sector, and that their rapid adoption is accelerating ownership concentration, resulting in higher prices for travellers. “Alone, index funds are not enough, but they are growing like gangbusters,” he explained in an interview.

  • Donald Trump: The Protector

    March 2, 2016

    An op-ed by Einer Elhauge. Like many people, I have been wondering: What on Earth explains Donald Trump’s remarkable appeal to voters? I’ve come to the conclusion that the answer is fairly simple. The message of his Republican opponents has effectively been: We are more faithful to conservative principles. Trump’s message has been entirely different. He essentially says: I will protect you. I’m conservative, but if protecting you requires jettisoning conservative ideology, I will do so. Protecting you is the prime directive. This message has powerful resonance, especially for voters who feel the Republican Party has failed to protect their interests.

  • Ted Cruz is not eligible to run for president: A Harvard Law professor close-reads the Constitution

    January 20, 2016

    An op-ed by Einer Elhauge. The argument that Ted Cruz is eligible to run for president initially looked strong, then probable but uncertain. But closer examination shows it is surprisingly weak. The constitutional text provides that a president, unlike other elected officials, must be a “natural born citizen.” This language could not mean anyone born a citizen or else the text would have simply stated “born citizen.” The word “natural” is a limiting qualifier that indicates only some persons who are born citizens qualify. Moreover, when the Constitution was enacted, the word “natural” meant something not created by statute, as with natural rights or natural law, which instead were part of the common law.

  • Experts compare Duke lawsuit to other antitrust cases

    November 18, 2015

    Experts are uncertain how antitrust law will be applied to the antitrust case involving Duke’s alleged no-poaching agreement for medical faculty. Seaman v. Duke University, et al. is a class action lawsuit filed by Dr. Danielle Seaman, assistant professor of radiology, on behalf of all similarly situated medical faculty at Duke and the University of North Carolina at Chapel Hill since 2012. Filed June 9, the suit alleges that Duke and UNC entered into an agreement not to hire each other’s staff for parallel positions—an agreement that violates antitrust laws...“There have been many [antitrust cases involving educational institutions], particularly concerning agreements restraining the commercial activities of college sports programs,” wrote Einer Elhauge, a law professor at Harvard Law School, in an email. Elhauge referred to two cases in particular: NCAA v. Board of Regents of the University of Oklahoma—a 1984 Supreme Court case challenging the NCAA’s limitation on the number of television broadcasts permitted for each university—and Law v. NCAA—a 1998 U.S. Court of Appeals case challenging a salary cap for college coaches. Both decisions deemed the NCAA to be in violation of the Sherman Antitrust Act.

  • U.S. Looks at Airline Investors for Evidence of Fare Collusion

    September 22, 2015

    U.S. antitrust officials investigating whether the nation’s four largest airlines colluded on pricing are looking at executives’ communications -- not only with each other, but also with their biggest shareholders...Another paper on the topic is also getting a close read at the Justice Department, according to a person familiar with the matter. That target, by Harvard Law School professor Einer Elhauge, argues that investor ownership of competitors across an industry can be challenged as anticompetitive even if overt coordination isn’t involved.

  • Big Funds: Do They Hurt Your Wallet?

    July 27, 2015

    If it seems like your airplane tickets cost too much this summer or your bank is overcharging you at the ATM, you might think about blaming your mutual fund. That is the startling—or maybe head-scratching—contention of some recent research that argues the top money-management companies have grown so large that they are indirectly stifling competition in other areas of the economy. In a paper posted online earlier this month, Einer Elhauge, a professor at Harvard Law School, asserts that concentrated shareholdings by such giant fund managers as BlackRock, Fidelity Investments, State Street and Vanguard Group “are likely to anticompetitively raise prices when the owned businesses compete in a concentrated market.”

  • Index funds may be conspiring against the very same investors who fund them

    July 27, 2015

    Normally, you’d think your 401k is a force for good. You put money in, let your nest egg grow, and draw it down when it comes time to retire. But Harvard Law professor Einer Elhauge argues that the mutual funds that make up your 401k, along with everyone else’s, have become so immense that they have created a perverse anti-competitive incentive: to keep prices high in industries like airlines and banks, thereby hurting you, the consumer.

  • Supreme Court Will Likely Uphold Affordable Care Act, Law Profs Say

    March 9, 2015

    Last week’s oral arguments in King v. Burwell suggest that the United States Supreme Court will uphold the Affordable Care Act, according to several Harvard Law School professors...“I would say for people who hoped that the Court would permit the subsidies to be paid, it was a very encouraging oral argument,” said Richard H. Fallon, a law school professor...In particular, professors said Kennedy’s line of questioning suggests that he could vote to uphold the ACA. Einer R. Elhauge, a professor at the Law School, said it seemed “very likely” that Kennedy would vote to uphold the law as it exists now, providing the required fifth vote...Noah R. Feldman ’92, another professor at the Law School, also identified Kennedy as a potential vote in favor of the Obama Administration. “The clear news was that Justice Kennedy is thinking seriously about a problem with the challengers’ interpretation,” he said...For his part, University Professor Laurence H. Tribe ’62 predicted a 6-3 decision in favor of upholding the ACA.

  • Einer R. Elhauge

    Obamacare, back on trial: Elhauge on new challenges to the ACA

    November 14, 2014

    In a move that caught many observers off guard, the U.S. Supreme Court last week announced it would review one of four cases currently challenging provisions

  • Obamacare’s next fight for survival

    November 14, 2014

    Obamacare -- the law that refuses to die -- is suddenly under attack again...Harvard Law Professor Einer Elhauge says some states, to protect themselves against possible health care chaos, might finally decide to set up their own arrangements or partner with the federal exchange. "The prospect of that disruption is sufficiently problematic that I would not be surprised to see a lot of states adopt exchanges," said Elhauge, who authored a book on the original Obamacare Supreme Court case.

  • Obamacare, back on trial

    November 13, 2014

    In a move that caught many observers off guard, the U.S. Supreme Court last week announced it would review one of four cases currently challenging provisions of the Patient Protection and Affordable Care Act (ACA)...Einer Elhauge, the Carroll and Milton Petrie Professor of Law at Harvard Law School and founding director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, writes frequently about U.S. health care law and is the author of the 2012 book “Obamacare on Trial.” He talked to the Gazette via email about the court’s decision to take up this case, what is at issue, and implications for the ACA should the court rule in favor of the plaintiffs.

  • College application process violates antitrust law: new suit

    May 13, 2014

    …These days, just about every kid applying to a selective college — one that judges applicants on more than just grades and test scores — is doing it through Common App. Is that a violation of the Sherman Act? One of Common App’s for-profit competitors claims it is. In a new antitrust complaint, filed Thursday in federal court in Portland, Oregon, CollegeNET alleges that over the last 10 years, Common App has stealthily changed its agreements with member colleges to impede competition from other application processing companies...I was curious about whether for-profit companies can sue non-profits for Sherman Act violations, so I checked in with Harvard Law School antitrust professor Einer Elhauge, who said that they can indeed.

  • Hearsay: Short takes from faculty op-eds on business and finance

    July 1, 2013

    “The Compensation Game” Professor Lucian Bebchuk LL.M. ’80 S.J.D. ’84 and Rakesh Khurana, professor at Harvard Business School Forbes India April 8, 2013 “Reports about the high pay of star athletes are often greeted with awe and approval rather than outrage. The rise of executive pay, its defenders claim, is no more problematic than the fact that, say, Red Sox slugger Manny Ramirez is paid much more than earlier stars like Ted Williams.

  • Professor Elhauge with MIT Professor Jonathan Gruber

    P/Review of Health Law at Petrie-Flom Center

    March 18, 2013

    The past year was a historic one for health law, with the Supreme Court issuing the final word on the constitutionality of the Affordable Care Act alongside a host of other critical developments. In February, the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, in partnership with the New England Journal of Medicine, held its first annual Health Law Year in P/Review event.

  • Professor Robert Mnookin LL.B. '68

    In the news: HLS faculty weigh in on the ‘fiscal cliff’ negotiations

    January 7, 2013

    In recent weeks, a number of HLS faculty have weighed in on issues surrounding the fiscal cliff negotiations.

  • Book Jacket

    Recent Faculty Books – Fall 2012

    October 1, 2012

    Professor Einer Elhauge ’86 is author of the e-book “Obamacare On Trial” (Edward Elgar), focused on the Patient Protection and Affordable Care Act case decided by the Supreme Court in June. Elhauge raises points that were not aired in the courtroom, including the fact that the constitutional framers themselves had approved mandates to buy health insurance.

  • HLS Professor Einer Elhauge '86

    Elhauge releases e-book on Obamacare

    September 12, 2012

    Professor Einer Elhauge ‘86 has released an e-book—titled “Obamacare on Trial” —on the Patient Protection and Affordable Care Act case decided by the Supreme Court. Elhauge raises points that were not aired in the courtroom, including the fact that the constitutional framers themselves had approved mandates to buy health insurance.