Ruled by Reason
The American Antitrust Institute’s Ruled by Reason podcast explores current topics in progressive antitrust with experts from enforcement, business, and academia. Ruled by Reason guests discuss and debate the benefits of competition for markets, consumers, and workers. We delve into the importance of antitrust enforcement for promoting competition in our markets and democratic values in civil society.
info_outline
Taking an “Extra” Look at Addressing Monopolization: A Conversation with Jennifer Sturiale
12/18/2025
Taking an “Extra” Look at Addressing Monopolization: A Conversation with Jennifer Sturiale
In this episode of Ruled by Reason, AAI VP and Director of Legal Advocacy Kathleen Bradish speaks with Professor Jennifer Sturiale about how her recent work attempts to address the persistent gap between public concern over monopolies and the limits of current Section 2 enforcement. Sturiale notes at the outset that her work originates in a fundament, ongoing issue: while antitrust law is, by its nature, deliberately narrow—designed not to punish firms that acquire monopoly power through “superior business acumen” or historic accident—this leaves significant harms unaddressed. In her view, monopoly power is harmful regardless of how it is acquired, not only because of price, output, or quality effects, but also because monopolists amass outsized resources that can distort politics, media, litigation, and democratic processes more broadly. (2:37) Sturiale then describes how her recent scholarship explores an unconventional alternative: using federal or state eminent domain powers—what she calls an “extra-antitrust” approach—to address market concentration. (5:49) Drawing on Supreme Court takings jurisprudence, particularly Hawaii Housing Authority v. Midkiff, she explains that the Court has interpreted “public use” broadly to include correcting economic distortions such as oligopoly. (9:12) She argues that this precedent suggests governments could, in principle, condemn property to break up monopolized or highly concentrated markets, provided just compensation is paid. Her illustrative example involves the highly concentrated dialysis market, where states could use eminent domain to enable new entry and competition without proving exclusionary conduct under traditional antitrust standards. (13:45) A central advantage of this approach, Sturiale argues, is that it bypasses many of the evidentiary burdens that make Section 2 cases slow, costly, and uncertain—such as market definition and proof of anticompetitive conduct. (29:35) Legislatures, rather than courts alone, could determine that a market is excessively concentrated based on hearings, expert testimony, and consumer experience. Compensation requirements would serve as an important limiting principle, both restraining overuse of eminent domain and preserving incentives to innovate, since firms could be compensated for lost profits rather than punished through treble damages. (23:55) At the same time, Sturiale is clear that her proposal is both a serious thought experiment and a critique. Political will, lobbying by powerful firms, valuation difficulties, and constitutional constraints—especially in national or IP-driven markets—pose real obstacles. (32:66) Still, she suggests that state-level experimentation in local markets could demonstrate feasibility and help democratize responses to market power. (46:35) Ultimately, the discussion reframes monopolization remedies not as solely an antitrust problem, but as part of a broader set of tools available to democratic governments confronting durable concentration in modern markets.
/episode/index/show/ruledbyreason/id/39458070
info_outline
The Three-Legged Stool of U.S. Antitrust Enforcement: A Conversation with Michael Kades
11/24/2025
The Three-Legged Stool of U.S. Antitrust Enforcement: A Conversation with Michael Kades
In this episode of Ruled by Reason, AAI President Randy Stutz talks with antitrust thought leader Michael Kades about the latest developments at the intersection of federal, state and private antitrust enforcement. The conversation begins with a discussion of the strengths and weaknesses of federal, state and private enforcers in the current enforcement climate (5:11). It then moves to the promise of “public entity litigation,” in which private counsel represent federal, state or local government entities in bringing enforcement actions they lack the resources to bring on their own (8:45). Stutz and Kades then discuss strategic complexities and possible “force multipliers” when private counsel represent a governmental agency (11:31), including with respect to bringing cases where the agency’s main priority is to develop antitrust doctrine or to shift risk when high-reward cases require large upfront resource commitments (13:33). They also discuss federal claims under Section 4A of the Clayton Act, which allows the government to recover treble damages in its capacity as an injured purchaser, and why such claims may be under-utilized (16:10). The conversation then shifts to merger enforcement, with a focus on the role of states and private plaintiffs (20:22). Among other things, Kades identifies categories of mergers where states may have an added advantage in merger enforcement (25:14). He also discusses how policy preferences and subject-matter emphases at the federal level can spur state and private enforcers to fill gaps in federal attention, though he cautions against trying to deduce policy preferences and attention levels solely from counting statistics (29:48). The conversation concludes with a discussion of allegations that federal enforcement has become “politicized” during the Biden and Trump administrations, and the role of the states in diffusing certain criticisms (33:13).
/episode/index/show/ruledbyreason/id/39158280
info_outline
From Labor Market Theory to Antitrust Policy: A Conversation with Ioana Marinescu
10/10/2025
From Labor Market Theory to Antitrust Policy: A Conversation with Ioana Marinescu
On this episode of Ruled by Reason, AAI Senior Counsel David O. Fisher talks with leading economist Ioana Marinescu about the theoretical frameworks underpinning labor monopsony and how they apply in various antitrust law and policy contexts. The conversation centers on Marinescu’s recent paper with coauthor José Azar, , which lays out the theoretical frameworks underlying monopsony power in labor markets and develops a theory-informed discussion of antitrust law and policy. The conversation begins with an examination of Marinescu’s background and her research on labor markets and monopsony power (3:15). She then explains the three main theoretical frameworks underpinning labor monopsony as reflected in the literature: oligopsony, differentiated jobs, and search-and-matching frictions (10:04). The conversation then moves to a discussion of how economists determine which models to apply in which context (18:47). In the enforcement context, Marinescu examines the usefulness of each framework in the context of enforcing against no-poach and wage fixing agreements (21:24), and underscores the significance of a which finds that antitrust enforcement against anti-competitive conduct tends to increase overall employment and business formation (26:48). Marinescu also discusses merger enforcement, and how each of the three theoretical frameworks apply in the merger context as reflected in the 2023 Merger Guidelines (30:53). Finally, she examines the theoretical work supporting the FTC’s Noncompete Rule, and whether it supports the agency’s current approach of addressing noncompete clauses on a case-by-case basis (35:24).
/episode/index/show/ruledbyreason/id/38534960
info_outline
Monopolizing by Conditioning: A Conversation Between Jack Kirkwood and Daniel Francis, Jerry S. Cohen Award Winner for Antitrust Scholarship
08/20/2025
Monopolizing by Conditioning: A Conversation Between Jack Kirkwood and Daniel Francis, Jerry S. Cohen Award Winner for Antitrust Scholarship
In this episode of Ruled by Reason, guest host , Professor of Law and the William C. Oltman Professor of Teaching Excellence at Seattle University School of Law, sits down with , Assistant Professor of Law at NYU Law School. The two discuss Francis’s award-winning article, . Professor Francis’s article won the 23rd Annual Jerry S. Cohen Memorial Fund Writing Award, presented on May 29 at AAI’s 2025 Annual Policy Conference, . The article demonstrates that conditional dealing should be recognized as its own, separate form of monopolistic conduct rather than squeezed into ill-fitting categories in existing monopolization law. It provides a new analytical framework for evaluating conditional dealing, including a definition of conditioning and standards for gauging its exclusionary impact, contribution to power, and procompetitive justifications. It also explains why courts’ current criteria for evaluating claims based on conditional dealing should be jettisoned.
/episode/index/show/ruledbyreason/id/37895145
info_outline
Applying Computer Science Principles to Police Modern Cartels: A Conversation with Giovanna Massarotto
07/09/2025
Applying Computer Science Principles to Police Modern Cartels: A Conversation with Giovanna Massarotto
On this episode of Ruled by Reason, AAI Senior Counsel David O. Fisher chats with legal scholar Giovanna Massarotto about what antitrust law can learn from computer science, and particularly how understanding agreement algorithms can help courts and enforcers police algorithmic price-fixing and other illegal agreements under Section 1 of the Sherman Act. The conversation centers on Massarotto’s recent paper, , which examines the characteristics of agreement algorithms and how they can inform the “plus factor” analysis courts use to determine the likelihood of an illegal agreement. It begins with an introduction to the concept of a "distributed system," which is any network of computers that works together to perform a common task, the Bitcoin blockchain being one notable example (5:25). It then examines the Byzantine Generals Problem, a classic story illustrating how the nodes in a distributed network can reach an agreement despite the existence of one or more unreliable nodes, which has parallels to the formation of stable cartel agreements (9:09). Massarotto explains how agreement algorithms create stability, and what they can teach courts and enforcers about how algorithmic cartels function. Specifically, she describes how agreement algorithms use digital signatures, cryptography, broadcasting, leader election, and private channels to allow stable decision-making in distributed systems (21:50). Massarotto concludes that, while broadcasting and leader election are accounted for in the existing plus-factor analysis, courts and enforcers should add the use of digital signatures, cryptography, and private channels to the list of plus factors which may indicate the existence of an illegal agreement (30:40).
/episode/index/show/ruledbyreason/id/37352745
info_outline
Experts, Daubert, and Judicial Gatekeeping: A Conversation with Edoardo Peruzzi and Christine Bartholomew
04/28/2025
Experts, Daubert, and Judicial Gatekeeping: A Conversation with Edoardo Peruzzi and Christine Bartholomew
On this episode of Ruled by Reason, AAI Senior Counsel David O. Fisher chats with economist Edoardo Peruzzi and antitrust scholar Christine Bartholomew about the role of Daubert challenges in antitrust suits, focusing on the increasing role of Daubert as a gatekeeping device that may be hindering private antitrust enforcement. The conversation begins with an examination of Peruzzi’s recent working paper, which finds that Daubert challenges have become more frequent in antitrust cases and that, although plaintiffs’ experts are challenged more frequently, defendants’ experts are more often excluded (6:30). Bartholomew places Peruzzi’s findings within a context of increased procedural gatekeeping in antitrust cases, including the conflation of Daubert issues with the requirements of class certification, which she argues has wrongly turned Daubert into an outcome-determinative mechanism that is hindering private antitrust enforcement (22:20). The group then discusses potential solutions to this problem—including a different admissibility standard for economic testimony, increasing the use of court-appointed experts, and delaying the consideration of admissibility until the eve of trial—but finds none of them to be feasible. (30:15). Instead, they conclude that the solution lies in a return to the language of the Daubert trilogy and its goal of liberalizing the admissibility of expert testimony, which means keeping Daubert questions separate from the standards of class certification and rejecting efforts to treat the “fit” inquiry into a strict requirement of admissibility (40:05).
/episode/index/show/ruledbyreason/id/36338980
info_outline
How the Agri-Stats Case Can Help Shape Treatment of Anticompetitive Information Exchanges: A Discussion Between Emily Bridges of the Food and Agriculture Impact Project and Professor Peter Carstensen
09/12/2024
How the Agri-Stats Case Can Help Shape Treatment of Anticompetitive Information Exchanges: A Discussion Between Emily Bridges of the Food and Agriculture Impact Project and Professor Peter Carstensen
On this episode of Ruled by Reason, Emily Bridges of the Food and Agriculture Impact Project has a wide-ranging discussion with antitrust scholar Peter Carstensen about the role of information exchange in restricting competition in agricultural markets, focusing on how the DOJ’s case against Agri-Stats addresses that threat. After covering the oligopolistic nature of many agricultural markets (2:45), the two do a deep dive on why information exchange can be so harmful to competition (11:04). Professor Carstensen explains how the law on information exchange has evolved and how that history has led to unfortunate ambiguity about the applicable standard (17:10). Professor Carstensen then explains why information exchange has been a particular problem in agricultural markets. He describes how recent cases in this area, including both private actions and the DOJ’s case against the information aggregator, Agri-Stats, can play an important role in clarifying and strengthening enforcement against unjustified information exchanges (27:20). The discussion concludes with some thoughts about what we can expect from current trends in litigation over illegal information exchanges (48:50). Emily Bridges is a Research Attorney for the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law, working with the Food and Agriculture Impact Project. Emily received a JD and an LL.M. in Agricultural and Food Law from the University of Arkansas School of Law. The Food and Agriculture Impact Project works with faculty, students, organizations and other educational institutions to provide policy and legal research, analysis and education, supporting the farm and food community with educational resources. Peter Carstensen is Professor Emeritus at the University of Wisconsin Law School and a Senior Fellow and Advisory Board Member at AAI. He previously served in the Antitrust Division at the Department of Justice. Professor Carstensen received the 2024 Alfred E. Kahn Award for Antitrust Achievement, presented by AAI in recognition of his outstanding contributions to the field.
/episode/index/show/ruledbyreason/id/33008647
info_outline
Competition, Fairness, and Regulation in Food & Agriculture: A Conversation with Andy Green, Senior Advisor for Fair and Competitive Markets at the U.S. Department of Agriculture
08/22/2024
Competition, Fairness, and Regulation in Food & Agriculture: A Conversation with Andy Green, Senior Advisor for Fair and Competitive Markets at the U.S. Department of Agriculture
In this episode of Ruled by Reason, AAI President Randy Stutz sits down with . The two discuss how Green found his way to the USDA after beginning his career as a corporate securities lawyer and developing policy expertise in the financial sector (2:46), the new role created for a competition advisor at USDA (9:25), USDA’s tools for implementing President Biden’s Executive Order on Promoting Competition (11:02), USDA’s coordination with the USPTO to strengthen patent quality and promote competition in seeds markets (29:25), USDA’s coordination with the Antitrust Division of the DOJ to enforce the unique standards of the Packers & Stockyards Act (35:57), the interplay between Sherman Act claims involving collusive price setting through intermediaries and the USDA’s pricing transparency rulemakings (41:48), and issues in food and agriculture that the next president of the United States will inherit (44:28).
/episode/index/show/ruledbyreason/id/32694667
info_outline
How Exactly Does Common Ownership Harm Competition? A Conversation with Florian Ederer, Jerry S. Cohen Award Winner for Antitrust Scholarship
08/14/2024
How Exactly Does Common Ownership Harm Competition? A Conversation with Florian Ederer, Jerry S. Cohen Award Winner for Antitrust Scholarship
In this episode of Ruled by Reason, guest host , the Robert A. Bandeen Distinguished Professor of Economics at Duke University’s Fuqua School of Business, sits down with Professor to discuss his award-winning article, . Professor Ederer is the Allen and Kelli Questrom Professor in Markets, Public Policy & Law at Boston University’s Questrom School of Business. His article, co-authored with Professors and of the IESE Business School and of the University of Oxford Saïd Business School, won the 22nd Annual Jerry S. Cohen Memorial Fund Writing Award, presented on May 22 at AAI’s 2024 Annual Policy Conference, . The article helps explain the existing empirical evidence on the anticompetitive effects of common ownership and meaningfully advances our understanding of the underlying theory behind the effects. Among other things, Professor Marx and Professor Ederer discuss the theoretical and empirical background behind the theory of anticompetitive effects from common ownership (5:06), the mechanism by which common ownership actually leads to anticompetitive effects, notwithstanding that top managers and their delegees (rather than investors) control firms (12:13), and the implications of these findings for enforcers, policymakers, and future research (26:09). Antitrust scholarship that is considered and selected for the reflects a concern for principles of economic justice, the dispersal of economic power, the maintenance of effective limitations upon economic power or the federal statutes designed to protect society from various forms of anticompetitive activity. Scholarship reflects an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society–values and concerns Jerry S. Cohen dedicated his life and work to fostering.
/episode/index/show/ruledbyreason/id/32568402
info_outline
International Update: Checking In with ICN's Cartel Working Group
06/20/2024
International Update: Checking In with ICN's Cartel Working Group
In this episode of Ruled by Reason, AAI goes international! Enforcers from the U.S., New Zealand, UK and Chile talk with Kathleen Bradish, Vice President and Director of Legal Advocacy, about their agencies’ cross-border work to stop price-fixing cartels. Leah McCoy, Juan Correa, Louise Baner, and Grant Chamberlain, whose agencies are heading up the International Competition Network’s Cartel Working Group, tell us about the important role of the CWG in advancing cross-border enforcement and give us a preview of some of CWG’s exciting new projects. These include initiatives that reflect on-going, long-term concerns of international enforcers, like improving international cooperation and addressing obstruction. Other projects address emerging challenges like the specter of algorithmic collusion and the effect of complex networks of privacy laws on evidence collection. Our conversation concludes with Chile’s and New Zealand’s perspective on how ICN, and the Cartel Working Group in particular, can aid newer and smaller agencies.
/episode/index/show/ruledbyreason/id/31812727
info_outline
Default Status/De Facto Exclusion: What does a Rival Search Company Have to Say About the Google Case?
02/07/2024
Default Status/De Facto Exclusion: What does a Rival Search Company Have to Say About the Google Case?
On this episode of Ruled by Reason, we explore the ramifications of the Google search case from a unique perspective—the rival search engines that have been directly affected by Google’s alleged monopolistic conduct. As the antitrust world eagerly awaits a decision this spring, AAI’s Kathleen Bradish interviews DuckDuckGo's Kamyl Bazbaz, VP of Communications and Public Affairs, about his impressions of the recently argued case. This episode unpacks how Google’s conduct, including “marathon” sized payments to OEMs to ensure default status, cuts rivals off from major access points and stymies customer choice. Bazbaz weighs in on the potential remedies that could help restore competition to search and improve customer’s online experience.
/episode/index/show/ruledbyreason/id/29826483
info_outline
Praise and Constructive Criticism: The Pro-Enforcement Community Weighs in on the Draft Merger Guidelines
11/01/2023
Praise and Constructive Criticism: The Pro-Enforcement Community Weighs in on the Draft Merger Guidelines
On this episode of Ruled by Reason, AAI’s Kathleen Bradish talks with Open Market’s Sandeep Vaheesan and the American Economic Liberties Project’s Erik Peinert about the pro-enforcement community’s views on the draft Merger Guidelines recently released by the FTC and DOJ. This is a wide-ranging and in-depth discussion about how the proposed changes succeed in advancing better merger enforcement, where they fall short, and what beneficial modifications could be made to the final version. Using each organization’s comments to the draft Guidelines as the jumping off point, Bradish talks with Vaheesan and Peinert about the proper role of guidelines, the importance of structural presumptions, the differences between treatment of vertical and horizontal mergers, and the viability of the efficiencies defense. The discussion concludes with thoughts about how to maximize the practical impact and the long-term viability of the Guidelines.
/episode/index/show/ruledbyreason/id/28486556
info_outline
How Should Antitrust Tackle Antitrust’s “Duty to Deal” in the Tech Sector? A Conversation With Erik Hovenkamp, 2023 Jerry S. Cohen Award Winner for Antitrust Scholarship
08/23/2023
How Should Antitrust Tackle Antitrust’s “Duty to Deal” in the Tech Sector? A Conversation With Erik Hovenkamp, 2023 Jerry S. Cohen Award Winner for Antitrust Scholarship
In this episode of Ruled by Reason, guest host Roger Noll, Professor of Economics, Emeritus, at Stanford University and AAI Advisor sits down with Erik Hovenkamp to chat about his award-winning article ” (131 Yale L.J. 1483 (2022)). Professor Hovenkamp is Assistant Professor at the USC Gould School of Law. His article argues that the law on exclusive dealing has failed to distinguish between “primary” and “secondary” refusals to deal. The article explains that the suffocating evidentiary requirements imposed on refusal to deal claims should not be applied to secondary refusals to deal because they do not implicate the same innovation concerns that motivate suspicion of “primary” refusal to deal claims. Instead, Hovenkamp argues that secondary refusal to deal claims should be evaluated analogously to tying or related vertical restraints. Antitrust scholarship that is considered and selected for the reflects a concern for principles of economic justice, the dispersal of economic power, the maintenance of effective limitations upon economic power or the federal statutes designed to protect society from various forms of anticompetitive activity. Scholarship reflects an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society–values and concerns Jerry S. Cohen dedicated his life and work to fostering.
/episode/index/show/ruledbyreason/id/27830250
info_outline
Unpacking the 2023 Revised Merger Guidelines: A Conversation With the U.S. Department of Justice
08/01/2023
Unpacking the 2023 Revised Merger Guidelines: A Conversation With the U.S. Department of Justice
On this episode of Ruled by Reason, AAI President, Diana Moss, and AAI Vice President for Legal Advocacy, Kathleen Bradish talk with leadership at the U.S. Department of Justice, Antitrust Division about the newly released merger guidelines. Moss and Bradish are joined by Susan Athey, Chief Economist for the Antitrust Division and Michael Kades, Deputy Assistant Attorney General for the Antitrust Division. This is the 7th revision of the merger guidelines since they were first released by the antitrust agencies in 1968. The revisions are notable for many reasons, not the least of which is their timing, which comes at an inflection point in antitrust enforcement and competition policy. The draft guidelines address a number of growing concerns around consolidation, including high and rising concentration, high barriers to entry, and the emergence of dominant firms and tight oligopolies in key markets. The revised guidelines also take on issues not addressed head on by previous agency guidance, such as the effect of mergers on the loss of worker bargaining power, firm growth through “serial acquisitions,” the complexities of partial ownership and control, elimination of potential entrants, and the emergence of business models, such as digital ecosystems with multisided platforms. Today’s episode unpacks these and other key takeaways from the draft merger guidelines.
/episode/index/show/ruledbyreason/id/27627276
info_outline
The Cloud Technology Market: Storm of Innovation or Rainy Days for Competition?
07/17/2023
The Cloud Technology Market: Storm of Innovation or Rainy Days for Competition?
On this episode of Ruled by Reason, AAI President, Diana Moss, and AAI Vice President for Legal Advocacy, Kathleen Bradish talk about competition and cloud technology markets. AAI recently issued the report: The Cloud Technology Market: Storm of Innovation or Rainy Days for Competition? Moss and Bradish unpack AAI’s analysis of a vitally important market in the digital economy, beginning with the explosive growth in cloud computing over the last two and a half decades. The report identifies the major cloud players and asks: What is the state of competition in the market? For example, is technological dynamism driving new entry? Are players jockeying for position by stealing share from each other? What does this all mean for how cloud providers compete with one another and are they any warning signs that competition may be flagging? Most important, how should antitrust enforcers and competition policymakers be thinking about promoting competition in cloud?
/episode/index/show/ruledbyreason/id/27484509
info_outline
How Do We Fix the Competition Problem in Shipping? The Role for Private Actions under the Shipping Act
07/17/2023
How Do We Fix the Competition Problem in Shipping? The Role for Private Actions under the Shipping Act
On this episode of Ruled by Reason, AAI Vice President for Legal Advocacy Kathleen Bradish hosts J. Wyatt Fore and David Golden of Constantine Canon to discuss their work in private antitrust enforcement under the Shipping Act. They explain how consolidation in the shipping industry has led to a serious competition problem, one that came into full view when COVID-19 exposed a dangerous lack of resilience in the supply chain. The conversation covers the role of the Federal Maritime Commission in antitrust enforcement and the role for private enforcement in working alongside the FMC to encourage greater competition in shipping. Wyatt and David discuss their own experience litigating in front of the FMC and improvements that can be made to the process to make it easier for private plaintiffs to bring meritorious claims. This episode is for anyone interested in finding out more about competition in an industry that touches on nearly every aspect of our lives. After listening, head over to the AAI website to read Wyatt and Kathleen’s white paper “” for a deeper dive on the issues raised here.
/episode/index/show/ruledbyreason/id/27296142
info_outline
Private Equity’s Impact on Physician Practices: Unpacking Markets, Competition, and Prices
06/21/2023
Private Equity’s Impact on Physician Practices: Unpacking Markets, Competition, and Prices
On this episode of Ruled by Reason, AAI President Diana Moss hosts two leading healthcare competition experts. Laura Alexander is Director of Markets and Competition Policy at the Washington Center for Equitable Growth and Brent Fulton is Associate Research Professor of Health Economics and Policy at the University of California at Berkeley and Associate Director of the Petris Center on Health Care Markets and Consumer Welfare. They take up an increasingly troubling issue in healthcare competition: growing private equity ownership of physician practices. The conversation previews major takeaways from a soon to be released study between AAI, UC Berkeley, and WCEG, funded by a grant from the Arnold Foundation. Moss, Alexander, and Fulton discuss the penetration of private equity ownership in the U.S. across a variety of physician practice areas, growth in market share and concentration, and effects on prices. This episode is a must-listen for those following consolidation in critical healthcare markets and its implications for prices, healthcare costs, antitrust enforcement and healthcare policy.
/episode/index/show/ruledbyreason/id/27223755
info_outline
Powerful Buyers and the Grocery Supply Chain: What Does it Mean for the Independent Grocer?
04/24/2023
Powerful Buyers and the Grocery Supply Chain: What Does it Mean for the Independent Grocer?
On this episode of Ruled by Reason, AAI President Diana Moss hosts David Smith, CEO of Associated Wholesale Grocers, and Chris Jones, SVP of Government Relations and Counsel for the National Grocers Association. They take up a front-line issue: consolidation in the retail grocery supply chain and the threat it poses to smaller independent grocers. The accumulation of market power has spurred an ongoing cycle of bulking up to gain bargaining leverage over suppliers and customers, with significant effects on smaller players in the supply chain, including farmers and ranchers, small food brands, regional dairy and protein processors, food wholesalers, and independent grocers. The conversation focuses on how powerful retail grocers engage in various methods to exercise their buyer power, often at the expense of independent grocers; what enforcement and policy tools are available to combat it; and what further consolidation in retail grocery means for competition and security of the food supply chain.
/episode/index/show/ruledbyreason/id/26637117
info_outline
Airline Consolidation and Labor A View From the Cockpit
04/03/2023
Airline Consolidation and Labor A View From the Cockpit
In this podcast episode, AAI President Diana Moss sits down with two airline pilots, Kelly Ison and Eric McEldowney, to talk about the effect of airline consolidation on labor workforces. There have been almost 20 airline mergers involving U.S. carriers in the last two decades, six of which have involved mergers of major legacy and low-cost carriers. Today, the sector is dominated by a tight oligopoly of carriers. But consolidation continues, with merger proposals such as JetBlue and Spirit, joint ventures like the Northeast Alliance codeshare, and increasing complexity in the international immunized airline alliances. While the effect of consolidation on consumers remains important, not enough has been said about effects on labor. Today’s episode fills this gap. Moss, Ison, and McEldowney do a deep dive into airline consolidation and how it affects pilots. Their discussion ranges from changes in the industry since airline deregulation in the late 1970s, to consolidation and loss of competition, to policy proposals for promoting competition in airlines for the benefit of airline labor forces.
/episode/index/show/ruledbyreason/id/26424693
info_outline
Taking Stock of Merger Enforcement Under the Biden Agencies: A Conversation With Steven Salop
03/06/2023
Taking Stock of Merger Enforcement Under the Biden Agencies: A Conversation With Steven Salop
In this podcast episode, AAI President Diana Moss and Steven Salop, Professor Emeritus at Georgetown Law, take stock of the Biden antitrust agencies’ merger enforcement record. The antitrust chiefs at the Federal Trade Commission and U.S. Department of Justice Antitrust Division were chosen specifically for their commitment to invigorating antitrust enforcement. As we head into the third year of the Biden administration, now is a good time to assess how the agencies are doing on merger control. Vigorous merger enforcement under Clayton Act Section 7 acts to prevent the emergence of oligopolies and dominant firms, serving as a first line of defense against the accumulation of market power that harms consumers and workers. Moss and Salop cover the ground on two major topics. They first unpack the recently released 2021 merger statistics. While one year of data does not reveal much about longer-term trends in merger enforcement under the Biden agencies, it does shed light on what to watch for moving forward. Their conversation then turns to issue spotting, or what is likely to unfold for merger control at the agencies based on what we have seen under the Biden enforcers thus far.
/episode/index/show/ruledbyreason/id/26140398
info_outline
Antitrust Reform from Within the Federal Antitrust Agencies: Navigating Institutional Dynamics in Implementing Policy Shifts
01/03/2023
Antitrust Reform from Within the Federal Antitrust Agencies: Navigating Institutional Dynamics in Implementing Policy Shifts
In this podcast episode, AAI’s former Vice President of Legal Advocacy Randy Stutz talks with Howard Law Professor Andy Gavil and George Washington Law Professor Bill Kovacic about institutional dynamics that can affect efforts to shift policy and initiate reform from within the federal antitrust agencies. The three discuss lessons from previous efforts to implement significant policy reforms in the 1970s and 1980s (4:05), the challenges of effectively exercising prosecutorial discretion in the face of limited agency resources (13:35), leveraging the FTC’s recent policy statement on Section 5 Unfair Methods of Competition authority (23:35), practical considerations in revising merger guidelines that have been accepted by courts and enshrined in case law (38:55), and whether and under what circumstances agency leaders should be willing to run the risk of losing big cases (52:00).
/episode/index/show/ruledbyreason/id/25453458
info_outline
Antitrust and “Agnosticism”: How Enforcers Think About Cases in Markets With Outsize Impact on Society, Human Health, and Vulnerable Groups
10/18/2022
Antitrust and “Agnosticism”: How Enforcers Think About Cases in Markets With Outsize Impact on Society, Human Health, and Vulnerable Groups
On this 25th podcast episode, AAI President Diana Moss and enforcement experts, Stephen Calkins and Benjamin Elga, unpack antitrust enforcement in markets that raise issues around social well-being, human health, and vulnerable consumers and workers. Antitrust is designed to deter and remediate harmful, anticompetitive mergers and conduct while remaining “agnostic” to the markets in which competitive concerns arise. In applying the consumer welfare standard, antitrust enforcement addresses adverse price, quality, and innovation effects and, implicitly, the distribution of wealth between firms and consumers. However, there are some markets where higher prices might beneficially reduce demand for products or services that have adverse effects on society or human health, such as cigarettes, sugar, or violent video games. Similarly, antitrust could sometimes be more aggressive in order to protect vulnerable consumer groups, including lifeline wireless service, or prison inmate calling services. This episode unpacks this issue from both the public and private enforcement perspective, asking how enforcers think about cases involving such markets and what questions they raise.
/episode/index/show/ruledbyreason/id/24726507
info_outline
Countervailing Power: Why It Cannot Save Local Newspapers or Competition
09/27/2022
Countervailing Power: Why It Cannot Save Local Newspapers or Competition
In this episode, former AAI Vice President of Policy Laura Alexander discusses the concept of countervailing power and the controversial role in plays in antitrust and competition law with NYU Associate Professor Daniel Francis, one of the leading voices on this subject. The idea that otherwise unlawful cartels, mergers, and collaborations should be allowed between companies facing a monopolists or monopsonists across the bargaining table is a tantalizing perceived solution to counteract the very real problem of persistent market power. Deploying such countervailing power, however, is also fraught with serious risks for competition and consumers. As Francis explains, such collaborations rarely improve competition or minimize the impact of market power on consumers, but do often lock-in or increase existing market power and slow innovation. The conversation starts with an overview of the concept of countervailing power as an antitrust and competition tool, and then goes on to discuss the Journalism Competition and Preservation Act, a bill being considered by the Senate that would apply countervailing power principles to create an exception to the antitrust laws for news organizations bargaining with large tech companies. Finally, the episode concludes with a discussion of why countervailing power remains a persistent idea in antitrust circles, despite its tension with antitrust’s longstanding commitment to competition.
/episode/index/show/ruledbyreason/id/24503691
info_outline
Toxic Cocktail or Essential Device for Protecting Competition: Recent Developments in the Empirical Study of Antitrust Class Actions
08/01/2022
Toxic Cocktail or Essential Device for Protecting Competition: Recent Developments in the Empirical Study of Antitrust Class Actions
In this podcast episode, AAI Vice President of Legal Advocacy Randy Stutz talks with two experts who have led pioneering empirical research into antitrust class actions, Rose Kohles and Josh Davis. Stutz talks with Kohles and Davis about the Huntington Bank and UC Hastings “2021 Antitrust Annual Report: Class Action Filings in Federal Court,” and how empirical research into antitrust class actions might challenge the entrenched views of both tort-reform advocates and class-action proponents. The three discuss previous efforts at empirical study of antitrust class actions prior to the Annual Report, which is now in its fourth edition (5:00), the type and nature of empirical data that is available and collected in the Annual Report and the role of class-action policy debate in shaping empirical study more generally (10:10), how empirical data may inform new arguments that support or refute various arguments on different sides of class-action debates (17:43), whether empirical data could inform legal arguments or judicial decision-making in court, including in the issuance of fee awards (25:37), whether empirical data might suggest legislative or other class-action reform proposals (32:32), and interesting developments reflected in the most recent edition of the Annual Report, covering data from 2009-2021 (36:54).
/episode/index/show/ruledbyreason/id/23924085
info_outline
From Medical Licensing to Health Insurance: Major Policy Issues That Will Shape the Future of Telehealth
06/10/2022
From Medical Licensing to Health Insurance: Major Policy Issues That Will Shape the Future of Telehealth
In this podcast, AAI President Diana Moss talks with two experts about Telehealth and the many issues that it raises for the healthcare system, providers, and patients. These include policy questions around medical licensing, impact and equity, and competition. Telehealth is the distribution of health-related services and information via electronic and telecommunication technology. As a distinct modality, It allows for long-distance patient and clinician contact and the many elements, from patient care to remote admissions. The impact of the COVID-19 pandemic on Telehealth has been notable and health systems, payers, employers, and new entrants have worked to expand Telehealth services. AAI’s guests on this episode of Ruled by Reason will discuss the many questions surrounding Telehealth today. For example, how will health systems deliver complex healthcare services via Telehealth? Which population segments and practice areas are likely to drive future utilization? How will medical licensing policies affect Telehealth moving forward? And how does competition in the healthcare supply chain, especially in health insurance, impact the provision of Telehealth services?
/episode/index/show/ruledbyreason/id/23388704
info_outline
The High Costs of Growing Corn: How Growers are Squeezed by High Input Prices That Are Set by the Fertilizer Oligopoly
05/24/2022
The High Costs of Growing Corn: How Growers are Squeezed by High Input Prices That Are Set by the Fertilizer Oligopoly
In this podcast, AAI President Diana Moss talks with two experts in the agriculture sector about corn, a leading U.S. crop. Many farmers bow face serious margin “squeezes.” They pay higher and higher prices to oligopolies and cartels for inputs that are necessary to grow their commodities. But growers then sell into markets where commodity prices are often controlled by only a few firms, such as in proteins, or are subject to the significant vagaries of price fluctuations. This episode of Ruled by Reason will focus on how corn growers are paying high input costs, especially for fertilizer. Economic studies, including a recent one authored by a guest on this podcast, reveal serious concerns about high fertilizer prices. These prices have been set for years by a small group of global fertilizer producers that likely coordinate, rather than compete. Anticompetitive fertilizer prices hurt corn growers and consumers, and imperil the stability and integrity of a vital agricultural supply chain.
/episode/index/show/ruledbyreason/id/23216501
info_outline
Litigation Funding Is Changing the Contours of Antitrust Class Actions in the U.S. and Abroad
05/04/2022
Litigation Funding Is Changing the Contours of Antitrust Class Actions in the U.S. and Abroad
In this episode, AAI Vice President of Policy Laura Alexander discusses third-party litigation funding and its impact on private antitrust class actions with two experts in the field, one of the country’s foremost litigators of antitrust class actions and a representative from a leading litigation funder with deep experience in antitrust. Antitrust class actions are expensive to bring and prosecute. Historically, plaintiffs’ lawyers have used their own assets and traditional bank loans to finance them, in a high-risk/high-reward business model. In the last decade, however, an alternative funding model has emerged: litigation funding firms have begun financing plaintiff-side antitrust litigation for profit using non-recourse debt, shifting risk and reward from the lawyers to the funders and, in the process, changing the landscape of private antitrust litigation and class actions. The conversation starts with a primer on litigation funding, and goes on to discuss how funding decisions factor into leadership and settlement dynamics, how litigation funding impacts which cases are brought and who brings them, and how monetization of claims is changing incentives for opt outs and what that might portend for class actions. Finally, the episode concludes with an analysis of the different role that litigation funding plays in collective actions abroad, and what lessons we might draw from foreign jurisdictions for funding class actions in the U.S.
/episode/index/show/ruledbyreason/id/23004230
info_outline
Invigorating Antitrust Enforcement: A Conversation With Carl Shapiro
03/29/2022
Invigorating Antitrust Enforcement: A Conversation With Carl Shapiro
In this episode Diana Moss sits down with Carl Shapiro, Distinguished Professor of the Graduate School at the University of California at Berkeley, to unpack the debate over the role of antitrust and how to invigorate enforcement of the antitrust laws in the United States. In framing the dialog over where antitrust should go, they create a multi-faceted conversation that reveals why competition is a broader and important public policy issue problem for a market-based economy and democratic society. Major themes include the controversy over indicators of declining competition, recent changes to the antitrust ideological spectrum, proposed legislative reforms to the antitrust laws, revisions to the Horizontal Merger Guidelines, and the challenges that face the Biden antitrust chiefs at the U.S. Department of Justice Antitrust Division and Federal Trade Commission. These threshold questions have critical implications for the effectiveness of antitrust enforcement moving forward in promoting competition and for protecting consumers and workers.
/episode/index/show/ruledbyreason/id/22608071
info_outline
The State of State Antitrust Enforcement Amid a Federal Enforcement Surge
03/08/2022
The State of State Antitrust Enforcement Amid a Federal Enforcement Surge
In this episode, AAI Vice President of Competition Laura Alexander and Gwendolyn Cooley, Wisconsin’s Assistant Attorney General for Antitrust and Chair of the Multistate Antitrust Task Force for the National Association of Attorneys General discuss the state of state antitrust enforcement. The conversation covers “antitrust federalism” and the current relationship between state and federal antitrust enforcers, unique hurdles faced by state antitrust enforcers, the special expertise state enforcers bring to antitrust enforcement, and the priorities of states in enforcing state and federal antitrust laws. State antitrust enforcers have been leading the charge on everything from non-compete clauses to privacy, and with a reinvigoration of antitrust enforcement at the federal level, new avenues for cooperation and coordination are opening up for states to take on an even bigger role.
/episode/index/show/ruledbyreason/id/22374617
info_outline
How Should Antitrust Tackle Acquisitions of Nascent Competitors? A Conversation With 2020 Jerry S. Cohen Award Winner for Antitrust Scholarship, Scott Hemphill
02/14/2022
How Should Antitrust Tackle Acquisitions of Nascent Competitors? A Conversation With 2020 Jerry S. Cohen Award Winner for Antitrust Scholarship, Scott Hemphill
In this episode, Diana Moss sits down with Scott Hemphill, the Moses H. Grossman Professor of Law at the New York University School of Law, to chat about his award-winning article: . Hemphill co-authored the article with Timothy Wu, currently serving as Special Assistant to President Biden for Technology and Competition Policy at the National Economic Council. The article highlights major issues and debate around how antitrust enforcers and the courts go about evaluating acquisitions of nascent competitors that could violate Section 7 of the Clayton Act. Nascent competitors are firms whose prospective innovation is a “threat” to firms in a market. This threat is neutralized if a nascent rival is acquired, sometimes with serious implications for competition and consumers. Attention to acquisitions of nascent competitors has exploded across a number of sectors, including digital technology, fintech, healthcare, digital farming, and others. For business models that are driven by “growth by acquisition,” revisiting antitrust enforcement and competition policy around nascent rivals is particularly timely and important. Antitrust scholarship that is considered and selected for the reflects a concern for principles of economic justice, the dispersal of economic power, the maintenance of effective limitations upon economic power or the federal statutes designed to protect society from various forms of anticompetitive activity. Scholarship reflects an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society–values and concerns Jerry S. Cohen dedicated his life and work to fostering.
/episode/index/show/ruledbyreason/id/22129070