Consistent with this approach, the Supreme Court recently acknowledged that "[m]any tying arrangements . . . are fully consistent with a free, competitive market."(21) Indeed, leading treatises have commented that the test lower courts use to determine whether to apply the per se rule to a particular alleged tie "increasingly resembles a rule of reason inquiry."(22) Although the elements of a per se tying violation have been articulated differently, courts generally require that:
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When we relax or repeal certain of these laws or regulations, we do not move closer to a so-called free market, but rather simply alter incentives and magnify the force and impact of the remaining rules on the books.[9]
The diminishing incentives to raise capital in the public markets portend problems for private markets as well. Private markets may depend in large part on the ability to freeride on the transparency of information and prices in public markets; as public markets continue to shrink, so does the value of that subsidy.[30]
But ownership in the securities markets has undergone a fundamental shift since the 1960s.[65] Today, almost no one holds shares in record name,[66] with stock certificates increasingly going the way of landlines and 8-track tapes.[67] Indeed, individuals wanting to be listed as a holder of record can confront unwilling brokers[68] or hefty fees.[69]
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