The Effects on Mortgage Repayments of Restrictions on the Enforcement of Due-on-Sale Clauses: The California Experience

Unexpected increases in the cost of mortgage funds have imposed substantial losses on mortgage lenders. The losses are compounded by the decline in mortgage repayments as homeowners hang on to their low-rate mortgages. The enforcement of due-on-sale clauses is one option lenders have had to inhibit reductions in the turnover of low-rate mortgages. Recently a California Supreme Court ruling restricted the use of due-on-sale clauses. As a result, California state-chartered associations can no longer use due-on-sale clauses to raise mortgage rates. At the same time, most federally chartered associations in California continued the unrestricted enforcement of due-on-sale clauses. This paper examines the behavior of repayment rates at restricted state and unrestricted federal associations in California. The results suggest that for each percentage point new mortgage interest rates exceeded rates on existing mortgages, repayment rates at federal associations declined by 1.532 percentage points. The inability to prevent mortgage assumptions caused repayment rates at state-chartered associations to fall 0.406 percentage points more than federal association repayment rates. The additional decline has added substantial income losses to California state associations.     

<Emphasis Type="Italic">Leegin</Emphasis> and the Economics of Resale Price Maintenance

When the U.S. Supreme Court overturned its century-old precedent that treated resale price maintenance (RPM) as a per se violation of the antitrust laws, it signaled approval for the vertical restraint’s widespread use. But the increased use of RPM occurred under a pre-existing rule that permitted RPM as long as no formal agreement over price was reached. This paper documents not only the increased use of RPM post Leegin but also the importance of avoiding the appearance of agreements to control resale prices. The paper then discusses how plaintiffs, previously enamored of claims of RPM, are now recasting vertical RPM arrangements as ancillary to horizontal agreements among distributors that are made effective though enforcement by producers.     

The vertical restraints guidelines of the department of justice

In January, 1985, the Department of Justice issued Vertical Restraints Guidelines intended to clarify the legal status of vertical restraints, which had remained indefinite since the Supreme Court had declared in 1977 that the “rule of reason” was applicable to a large class of these restraints, and to outline an enforcement policy fair to all concerned and economically justified. The guidelines are mainly concerned with the two most controversial types of arrangement: territorial or customer restraints and exclusive dealing arrangements. Separately treated are tying arrangements, where the enforcement policy strictly follows lines indicated by a recent Supreme Court decision. A large part of the text of the guidelines is devoted to a detailed explanation of ways in which a given vertical restraint may be freed from the suspicion of anticompetitive effect. The analysis employs defective tests for anticompetitive impact and does not deal adequately with practices with both good and bad effects. Therefore, the guidelines do not appear to have accomplished their stated purpose.     

The Individual Housing Account

This paper summarizes the available information about the proposed Individual Housing Account (IHA), a tax-exempt savings account designed to facilitate the accumulation of the downpayment on a home for would-be first-time homebuyers. We review both the limited body of U.S. research and data on a similar Canadian program which has been in existence since 1974. We find little evidence to suggest that the IHA would stimulate homeownership or housing construction to any noticeable extent. It would enable potential buyers to save enough for a downpayment more rapidly than they now can, but this would increase homeownership only during the start-up period for the program, not in the long run. We also estimate the foregone tax revenues from the program to be in the neighborhood of $2 to $3 billion annually, once the program has reached maturity.     

Avoiding the Pitfalls of Net Uniformity: Zero Rating and Nondiscrimination

The current debate over network neutrality has not fully appreciated how service differentiation can benefit consumers and promote Internet adoption. On the demand-side, service differentiation addresses the primary obstacle to adoption, which is the lack of perceived need for Internet service, and reflects the growing heterogeneity of consumer demand. On the supply-side, monopolistic competition has long underscored how product differentiation can create stable equilibria with multiple providers—notwithstanding the presence of unexhausted economies of scale—by allowing competitors to target subsegments of the overall market that place a higher value on particular services. Conversely, prohibiting service differentiation would restrict competition to price and network size, which are factors that favor the largest players. These dynamics are well illustrated by global enforcement patterns with respect to a practice known as “zero rating”, which permits subscribers to access certain content without having that traffic count against their data caps. Of the six countries that have brought enforcement actions against zero rating, only India has categorically banned the practice. The other five countries (the United States, Chile, Canada, Slovenia, and The Netherlands) have adopted a more nuanced approach. A case-by-case approach is consistent with the empirical literature on vertical integration and restraints and the well-established principles for determining when to impose per se illegality and when to apply the “rule of reason”. The U.S. Supreme Court’s antitrust jurisprudence also helps identify factors that militate against liability, such as the lack of market power, nonexclusivity, and nonproprietary services.     

The Supreme Court and Beer Mergers: From <Emphasis Type="Italic">Pabst/Blatz</Emphasis> to the DOJ–FTC Merger Guidelines

The beer industry in the U.S. has undergone significant structural change in the post-WWII period. The industry also was the object of prominent antitrust challenges to horizontal mergers proposed during this time frame. This paper documents the trend of increasing seller concentration in the brewing industry and assesses the role that mergers played in this structural transformation. We also analyze the change in merger policy that has taken place since the Supreme Court originally addressed mergers in the beer industry as compared to current antitrust enforcement under the DOJ–FTC Merger Guidelines and recent judicial decisions.     

Copyright issues for home videotaping

The consumers' home use of videocassette recorders to record TV programmes or motion pictures has concerned copyright owners, who fear that their economic interest will be jeopardized. The 1976 US Copyright Act is silent on the issue of private, non-commercial home videotaping. The US Supreme Court, in the Betamax case, has ruled that private, non-commercial home videotaping is not a copyright infringement. However, neither the law nor the ruling has actually resolved the fundamental copyright problem associated with home videotaping. This article proposes a number of public and private policy options for reaching an optimal solution.     

Is Timing Everything? Race,Homeownership and Net Worth in the Tumultuous 2000s

We use the Panel Study of Income Dynamics to estimate how net worth was affected among low‐ and moderate‐income households who became first‐time homebuyers at different points during the volatile 2000s. We address selection using propensity score matching and estimating difference‐in‐difference models, and use quantile regressions to account for the skew in net worth outcomes. Results highlight the significance of race in the relationship between first‐time home buying and net worth during the decade. Although timing was critical to the short‐term trajectory of net worth for whites, total net worth declines for black first‐time homebuyers regardless of economic climate. The most dramatic differences between black and white new homebuyers is their neighborhood locations, with blacks purchasing in predominantly black neighborhoods with lower housing prices and price appreciation, and lower and declining rates of homeownership.     

Internet Car Retailing

We investigate the effect of Internet car referral services on dealer pricing of automobiles in California. Customers of an online service pay on average 2% less for their car ($450 for the average car). 25% of the savings come from purchasing at low-price dealerships affiliated with the online service. The remaining 75% stem from information provision by the online service, bargaining by the service on behalf of consumers, and cost efficiencies. A consumer receiving the mean online price does better than 65% of offline consumers, conditional on the car being purchased.     

Bank Capital and the Credit Crunch: The Roles of Risk-Weighted and Unweighted Capital Regulations

We investigated whether in recent years banks have increased their holdings of securities at the expense of their holdings of business loans in response to shortfalls of their capital relative to risk-weighted capital standards and relative to a capital standard that made no explicit allowance for credit risk. We estimated that bank credit fell by about $4.50 for each $1 that a bank's capital fell short of the unweighted capital standard. Banks that had less capital than required by the risk-weighted standard appear to have shifted away from assets with low risk weights (securities and single-family mortgages) and to have shifted toward assets with higher risk weights (commercial real estate and commercial and industrial loans). When we included both shortfall variables in a regression, shortfalls relative to the unweighted capital standard significantly affected bank credit, while shortfalls of capital relative to the risk-weighted standard did not. We found no significant effects of capital shortfalls at other, local-competitor banks on bank portfolios. Delinquencies in a given category of a bank's loans generally had significantly negative effects on that bank's holdings of loans in that category. In contrast, banks tended to increase holdings of loans in categories in which local-competitor banks were experiencing higher delinquency rates.     

The reverse Cellophane fallacy in market delineation

In the landmark Cellophane case, the Supreme Court erroneously concluded that du Pont did not have significant market power because the Court evaluated the elasticity of demand for Cellophane at the monopoly equilibrium, at which the elasticity was far higher than at the competitive equilibrium. The Court's error is commonly referred to as the Cellophane fallacy. This paper contends that there also is a reverse Cellophane fallacy. Markets delineated on the basis of prevailing demand elasticities are likely to be too small and the potential for the exercise of market power is likely to be overstated.     

Antitrust,the Rule of Reason,and Democracy

Professor Barnes responds to William Curran's fictional dialogue between Senator John Sherman and philosopher John Rawls, with a fictional letter from Supreme Court Justice William O. Douglas. Professor Barnes discusses the importance of the anarcho-socialist movement of the late nineteenth century to the adoption of the Sherman Act, the historical and logical inevitability of adoption of a rule of reason in antitrust law, the relevance of efficiency to the rule of reason, and the relationship between competition and the promotion of democratic ideals.     

The Spatial Distribution of Housing-Related Ordinary Income Tax Benefits

We estimate how tax subsidies to owner-occupied housing are distributed spatially across the United States and find striking skewness. At the state level, the mean tax benefit per owned unit in 1990 ranged from $917 in South Dakota to $10,718 in Hawaii. The dispersion is slightly greater when benefit flows are measured at the metropolitan-area level. Even assuming the subsidies are funded in an income progressivity-neutral manner, a relatively few metro areas, primarily in California and the New York–Boston corridor, are shown to gain considerably while the vast majority of areas have relatively small gains or losses.     

The Impact of Second Loans on Subprime Mortgage Defaults

An estimated 12.6% of primary mortgage loans were simultaneously originated with a second loan from 2004 until 2008, although relatively little is known about how the presence of such subordinate loans affects the default decisions of borrowers. We use a novel data series of loan servicing records from 2002 until 2010 to identify such borrowers and find evidence that the default behavior of these borrowers significantly differs from borrowers without second loans. Estimating a discrete‐time proportional odds hazard model, we find borrowers with a second loan were 62.7% more likely to default each month on their primary loan when conditioning alone on the attributes of the primary loan. However, borrowers of second loans were 58.3% less likely to default on their primary loan as compared to single‐loan borrowers with equivalent current combined attributes (i.e., loan‐to‐value, balance and interest rate). We hypothesize and provide empirical evidence that this occurs because borrowers with second loans have the option to sequentially default on each loan since subordinate lenders will not pursue foreclosure if borrowers have insufficient equity. Lenders of defaulted subordinate debt may revisit their decision to foreclose in the future after housing markets start to recover, thus prompting a new round of foreclosures.     

The Impact of Homeowners' Housing Wealth Misestimation on Consumption and Saving Decisions

Using a unique data set of 81,943 house value estimates by the homeowners and their financial institution, I find that homeowners overestimate their house value by 3.1%. After controlling for homeowners' socioeconomic characteristics, I find that ex ante homeowners who rate (cash-out) refinance an existing loan to increase savings (consumption) are significantly more likely to underestimate (overestimate) their house value. Moreover, overestimators (underestimators) are more likely to increase (reduce) their spending ex post . Finally, I also find that underestimators are more likely to prepay their loans and overestimators are more likely to default on their loans.     

Do Liquidated Damages Clauses Affect Strategic Mortgage Default Morality? A Test of the Disjunctive Thesis

We test the disjunctive thesis as it relates to mortgage contracts and find that a liquidated damages clause shifts ones view of a mortgage from a promise to perform to either a promise to perform or pay compensatory damages. However, when a strategic mortgage default is responsible for the breach, the perceived immorality of this action overwhelms the liquidated damages clause effect in support of the disjunctive thesis. We also find that people's conscious “experimentally stated preference” moral stance on installment loan (mortgages, auto loans, credit card debt and even cell phone contracts) default significantly differs from their subconscious “experimentally revealed preference” moral stance indicating a difference between what people say they believe and what they actually believe.     

Matsushita v. Zenith: An economic analysis

The Supreme Court erred by deciding that the proposition — that the Japanese television manufacturers, the defendants inMatsushita, had acted as independent competitors — had greater plausibility than the plaintiffs' charge that they had conspired to depress U.S. prices and take a large part of the U.S. market. Independent competitors would not have exported to the U.S., where prices were much below those in the home market. Moreover, the record evidence showed collusion in both the home and U.S. markets. Intent was also shown by the construction of large capacity to supply the U.S.Professor of Economics, New School for Social Research. I was co-author of Horace J. DePodwin, David Schwartzman, and Marcio Teixeira, "Economic Study of the Japanese Television Industry, prepared for plaintiffs' counsel in the Japanese Electronic Products Litigation, M.D.L. 189, Civ. Nos. 74–2451 and 74–3247 in the U.S. District Court for the Eastern District of Pennsylvania, September 1979 [hereafter referred to as the DePodwin Report]. The present article is based on David Schwartzman,The Japanese Television Cartel: A Study Based on Matsushita v. Zenith (Ann Arbor, Mich.: University of Michigan Press, 1993).     

Inducing Cooperation with a Carrot Instead of a Stick

The Supreme Court’s reasoning in Leegin turned on the insight that manufacturers may use resale price maintenance (RPM) for procompetitive purposes. This paper presents a model of manufacturer-retailer interactions that clarifies why, as a rule, retailers and manufacturers are joint beneficiaries of service-inducing RPM. The model identifies factors that determine how RPM-generated benefits are allocated between a manufacturer and its retailers. The paper then shows that manufacturers may use market share discounts (MSD) in lieu of RPM or other vertical restraints to induce retailer performance. The outcomes and efficiency effects that are achieved with RPM can be replicated and usually surpassed if manufacturers substitute MSD for RPM, thereby enabling a manufacturer to retain all incremental profit rather than conceding some of it to retailers.     

The Impact of Deregulation on Casino Win in Atlantic City

This paper examines the impact of deregulation on thedemand for casino gaming in Atlantic City. Specifically, the paper analyzes the impact ofexpanded operating hours and floor space devoted toslot machines. Using monthly win data between June1978 and July 1996, the analysis reveals that expandedfloor space had a significant, positive impact on win,resulting in an average monthly increase of over \$2million. This shows the importance of developing aregulatory structure rigid enough to ensure thehonesty and integrity of the gaming industry, butflexible enough to allow management to respond tochanging market conditions.     

The success of divestitures in merger enforcement: Evidence from the J&J-Pfizer transaction

Despite being a widely used tool in merger enforcement, there have been few studies of whether antitrust divestitures are successful. We help fill this void by conducting a study of the divestitures relating to Johnson & Johnson's $16.6 billion acquisition of Pfizer's consumer health division in 2006. Six brands were divested in this matter to alleviate antitrust concern. For three of the brands, their pre- and post-divestiture performances are similar, while the remainder underwent changes that do not appear to be divestiture related. Overall, the results are consistent with the view that the divestitures maintained the pre-transaction level of competition.