Full Transcript for Antitrust Policy in a Populist Era

Approach 73 00:04:23.959 --> 00:04:29.680 to Competition policy, which listed seventy two specific things more 74 00:04:29.759 --> 00:04:33.600 or less specific things to be done, some of which 75 00:04:33.600 --> 00:04:36.959 involved direct and I trust policy, but others of which 76 00:04:36.959 --> 00:04:43.800 involved competition as handled by the various regulatory agencies, so 77 00:04:43.920 --> 00:04:48.920 for example, urging the Federal Maritime Commission to be more 78 00:04:49.439 --> 00:04:55.040 energetic in seeking competitive prices, and instructing for Food and 79 00:04:55.079 --> 00:04:59.759 Drug Administration to make hearing aids available without a doctor's prescription, 80 00:05:00.639 --> 00:05:05.040 which in fact they did. The President Biden's speech, together 81 00:05:05.160 --> 00:05:08.720 with his nomination of Lisa Khans, who chaired the Federal 82 00:05:08.759 --> 00:05:13.000 Trade Commission, and Jonathan Canter as Assistant Attorney General for 83 00:05:13.079 --> 00:05:17.560 anti trust, signaled about one hundred and eighty degree turn 84 00:05:17.720 --> 00:05:22.399 against the economic approach that he, the President, had criticized, 85 00:05:23.279 --> 00:05:25.920 and the new administrators set out to. 86 00:05:28.120 --> 00:05:29.519 Alter policy in. 87 00:05:32.439 --> 00:05:36.279 I wouldn't say hasty, but as quickly as possible, by 88 00:05:37.360 --> 00:05:41.519 rescinding at least a dozen policy statements, some of which 89 00:05:41.560 --> 00:05:44.000 were fairly recent, others of which dated. 90 00:05:43.720 --> 00:05:46.279 Back more than twenty five, almost thirty years. 91 00:05:46.920 --> 00:05:52.000 And issuing several substitute policy statements of their own, the 92 00:05:52.040 --> 00:05:56.720 most prominent perhaps being the new interpretation of Section five 93 00:05:56.839 --> 00:06:01.360 of the Federal Trade Commission Act, making in an unfair 94 00:06:01.519 --> 00:06:05.439 method of competition to do anything that seemed in any 95 00:06:05.480 --> 00:06:11.040 way unsavory. They issued new merger guidelines, the most interesting 96 00:06:11.120 --> 00:06:16.519 hallmark of which is that they involved seventy case citations. 97 00:06:17.079 --> 00:06:19.759 There's nothing wrong with citing cases, but most of the 98 00:06:20.120 --> 00:06:24.120 preceding merger guidelines didn't really do that. They were explaining 99 00:06:24.160 --> 00:06:32.360 how the agency analyzed mergers. The new guidelines cite cases 100 00:06:32.399 --> 00:06:35.600 from the nineteen sixties. Supreme Court has not had a 101 00:06:35.639 --> 00:06:39.759 merger case substance of merger case since nineteen seventy four, 102 00:06:41.279 --> 00:06:44.519 and so these are all cases that in the nineteen 103 00:06:44.560 --> 00:06:47.480 sixties in which a market share of as little as 104 00:06:47.519 --> 00:06:50.920 five percent could bring down the wrath of the United 105 00:06:50.920 --> 00:06:57.639

States on a merger. The guidelines to retained some economic principles, 106 00:06:57.639 --> 00:07:01.360 but they're basically back away from any thorough commitment to 107 00:07:02.439 --> 00:07:08.920 economic analysis. The agency, if FTC engaged in rule making 108 00:07:09.000 --> 00:07:12.399 substance of competition rule making for the first time since 109 00:07:12.480 --> 00:07:18.560 nineteen seventy three, issuing a rule that would make unlawful, 110 00:07:19.000 --> 00:07:25.160 unenforceable all non competition agreements and employment contracts except those 111 00:07:25.240 --> 00:07:29.000 for high level executives that were already in place. No 112 00:07:29.120 --> 00:07:35.079 new contracts of any sort could be validly enforced going forward. 113 00:07:35.639 --> 00:07:39.319 The current commission now has just about a week ago, 114 00:07:40.600 --> 00:07:45.360 decided that after two district courts and joined the effectiveness 115 00:07:45.360 --> 00:07:49.120 of the non competition rule, that they would not defend 116 00:07:49.160 --> 00:07:56.319 the rule any further. Commissioner Slaughter, who was Commissioner that day, 117 00:07:58.879 --> 00:08:04.000 pointed out that APA proceeding in order to rescind that 118 00:08:04.160 --> 00:08:10.600 rule that has not yet been proposed. Despite the rhetorical 119 00:08:10.680 --> 00:08:16.759 excesses or at least flourishes of the Biden administration and 120 00:08:16.800 --> 00:08:22.199 I trust enforcers, they did not show any greater willingness 121 00:08:22.199 --> 00:08:26.160 to bring challenges than had the Trump administration. They did 122 00:08:26.199 --> 00:08:29.600 pursue the cases that wereing investigated in the big tech 123 00:08:29.639 --> 00:08:33.559 cases that they were being investigated before they came in 124 00:08:34.200 --> 00:08:41.559 and added some additional ones. They doubled down on vertical mergers, 125 00:08:41.600 --> 00:08:45.639 even though that didn't seem like a very promising avenue, 126 00:08:46.279 --> 00:08:52.720 and basically lost those cases. They brought eight cases under 127 00:08:52.840 --> 00:09:00.480 Section two and an opposition provisions, seven of which are 128 00:09:00.480 --> 00:09:04.879 premised on familiar theories of harm, only one of which 129 00:09:04.960 --> 00:09:09.120 was really in any way groundbreaking, and so and most 130 00:09:09.159 --> 00:09:12.120 of those, by the way, are still not fully litigated. 131 00:09:12.480 --> 00:09:12.840 And so. 132 00:09:14.279 --> 00:09:15.840 At the end of the day, I think we can 133 00:09:15.879 --> 00:09:19.799 say that the Trump administration took steps towards a more 134 00:09:19.919 --> 00:09:24.679 vigorous enforcement approach. That the Biden administration came in with 135 00:09:24.720 --> 00:09:30.320 a considerably more aggressive, maybe even extreme reform agenda, which 136 00:09:30.360 --> 00:09:35.879 it pursued by rewriting guidelines, promulgating rules, bringing

some more 137 00:09:35.919 --> 00:09:40.799 novel merger cases and Section two cases. 138 00:09:40.840 --> 00:09:43.519 But the residue. 139 00:09:43.039 --> 00:09:47.279 Let's say, when the litigation is all over, is somewhat modest. Now, 140 00:09:47.279 --> 00:09:49.960 if that's not a fair statement, Matt, you first corrects 141 00:09:49.960 --> 00:09:51.840 me on that if you want to add anything otherwise, 142 00:09:51.840 --> 00:09:54.080 we'll turn to the larger subject. 143 00:09:55.919 --> 00:09:57.879 Well, I guess I would disagree. 144 00:09:57.879 --> 00:10:00.799 I would take issue with a lot of the the framing. 145 00:10:00.960 --> 00:10:07.519 But my general observation is that we're talking about anti 146 00:10:07.519 --> 00:10:11.000 trust in a populist era. And the last panel was 147 00:10:11.039 --> 00:10:15.320 about the independence of the Federal Reserve, which is very dear. 148 00:10:15.159 --> 00:10:15.679 To my heart. 149 00:10:15.799 --> 00:10:19.679 Because it is a very populist question, and I don't 150 00:10:19.720 --> 00:10:24.159 think you can disentangle the tremendous lack of faith that 151 00:10:24.240 --> 00:10:27.919 Americans feel in their society on both sides of the aisle, 152 00:10:28.559 --> 00:10:32.559 from the enormous concentrations of power in the hands of 153 00:10:32.600 --> 00:10:36.919 Wall Street, in the hands of dominant firms, in the 154 00:10:36.960 --> 00:10:41.200 hands of often regulators who fuse the interests of the 155 00:10:41.240 --> 00:10:46.720 state with dominant private, coercive actors bork, which is, he 156 00:10:46.799 --> 00:10:49.960 created sort of the basis for what I would consider 157 00:10:50.120 --> 00:10:55.759 a relatively lawless form of antitrust, hated populism. 158 00:10:56.080 --> 00:10:58.120 It's all over the anti trust paradox. 159 00:10:58.120 --> 00:11:01.159 He talked about populism being terrible, and he talked about 160 00:11:01.320 --> 00:11:04.679 anti trust needing to be done scientifically. If you look 161 00:11:04.840 --> 00:11:07.759 at what Donald Trump talked about in twenty sixteen, and 162 00:11:07.840 --> 00:11:10.720 I'm a Democrat, so this made me very jealous. He 163 00:11:10.759 --> 00:11:14.039 talked about the AT and T Time Warner merger on 164 00:11:14.159 --> 00:11:17.000 the trail as a threat to democracy. It is a 165 00:11:17.120 --> 00:11:19.360 very political statement, and I don't think you can get 166 00:11:19.399 --> 00:11:22.919 away from the fact that antitrust and corporate power is 167 00:11:22.960 --> 00:11:26.159 now a political issue in a way that it hasn't been, 168 00:11:26.559 --> 00:11:28.919 maybe since the nineteen thirties, maybe the fifties. 169 00:11:28.960 --> 00:11:31.000 However, we want to talk about it. 170 00:11:31.200 --> 00:11:34.919 Just okay, So sixty five percent of Americans play video games. Yesterday, 171 00:11:34.960 --> 00:11:38.080 Microsoft just increased the price of I see you nodding, right, 172

00:11:38.320 --> 00:11:40.879 It's like annoying. There is the price of game Pass, 173 00:11:40.919 --> 00:11:42.840 which is essentially the Netflix for video games. 174 00:11:43.080 --> 00:11:44.000 Really dramatically. 175 00:11:44.759 --> 00:11:46.639 Two years ago, there was an attempt to stop a 176 00:11:46.639 --> 00:11:50.000 merger between Microsoft and Activision which enabled them to do 177 00:11:50.080 --> 00:11:54.039 this price hike, and the judge said, no, there's no 178 00:11:54.120 --> 00:11:56.679 case here. And you see that over and over and over. 179 00:11:56.799 --> 00:11:59.279 I deal with people who are in consolidated industries and 180 00:11:59.320 --> 00:12:03.679 they are terrified and they're getting ripped off. That system 181 00:12:03.720 --> 00:12:07.000 of private coercion is the system that we're dealing with today. 182 00:12:07.399 --> 00:12:10.320 And Trump, in his first time, I would argue, did 183 00:12:10.519 --> 00:12:13.799 had sort of different I think both parties have multiple 184 00:12:13.919 --> 00:12:19.399 have disagree on internally, and Trump certainly brought important vertical 185 00:12:19.399 --> 00:12:22.320 merger challenges. He brought two important Section two cases. He 186 00:12:22.440 --> 00:12:27.480 started on labor enforcement. He definitely adhered to the Board 187 00:12:27.519 --> 00:12:30.279 framework in some areas, but broke with it dramatically in others. 188 00:12:30.320 --> 00:12:34.080 And I would say the Biden administration antitrust broke with 189 00:12:34.159 --> 00:12:36.679 it even more dramatically. But in other areas of the 190 00:12:36.679 --> 00:12:40.279 Biden administration you did see tremendous attempts to consolidate power. 191 00:12:40.600 --> 00:12:44.720 What is about bringing those monopoly cases that breaks. 192 00:12:44.399 --> 00:12:45.320 With the tradition? 193 00:12:46.000 --> 00:12:48.559 Well, I think what if you look at what they 194 00:12:48.600 --> 00:12:49.840 did with you're talking. 195 00:12:49.639 --> 00:12:52.120 About the well Try and tech cases you just manchined. 196 00:12:52.159 --> 00:12:54.600 Well, I think just getting around Trinco would be the big, 197 00:12:54.720 --> 00:12:57.639 you know, a really significant change. But just bringing them 198 00:12:57.639 --> 00:13:01.159 anopolization case after twenty five years of not bringing any 199 00:13:01.759 --> 00:13:04.879 has a tremendous effect on business behavior. 200 00:13:04.919 --> 00:13:06.399 If you look at the number of. 201 00:13:08.039 --> 00:13:11.080 Private anti trust cases, it jumped from something like four 202 00:13:11.159 --> 00:13:13.960 hundred to seven hundred from twenty twenty three to twenty 203 00:13:14.000 --> 00:13:17.559 twenty four, and it's jumping again this year because business 204 00:13:17.559 --> 00:13:21.360 people are saying, oh, that kind of syst that structure 205 00:13:21.480 --> 00:13:25.039 of Google or Apple or Ticketmaster, that kind of looks 206 00:13:25.080 --> 00:13:27.919 like my industry, and they're starting to call lawyers and 207 00:13:28.559 --> 00:13:29.080 anti trust. 208 00:13:29.080 --> 00:13:30.080 I mean, you would probably know this. 209 00:13:30.120 --> 00:13:33.200 There's a lot more interest in well, you probably add 210 00:13:33.240 --> 00:13:36.440 another zero to your salary. There's a lot more interest 211 00:13:36.759 --> 00:13:41.039 in anti trust because of the just actually using the law. 212 00:13:41.120 --> 00:13:43.679 So just using the law was pretty meaningful. But I 213 00:13:43.720 --> 00:13:47.440 also think trying to address tech platforms after a series 214 00:13:47.480 --> 00:13:49.480 of cases that made it much much harder to do 215 00:13:49.519 --> 00:13:52.360 so and getting around them is very significant move on 216 00:13:52.440 --> 00:13:57.600 both both the first Trump administration, the Biden administration, and 217 00:13:57.639 --> 00:13:59.840 then the second Trump administration. I do think there are 218 00:13:59.919 --> 00:14:02.840 very very significant differences between the second Trump administration and 219 00:14:02.879 --> 00:14:03.639 the Biden administration. 220 00:14:03.759 --> 00:14:04.799 But I'll leave it there. 221 00:14:05.200 --> 00:14:09.759 Oh, we've had only a few months of it, so okay, Noah, 222 00:14:09.960 --> 00:14:10.279 would you? 223 00:14:11.120 --> 00:14:14.480 So there's a lot to unpack in those comments. 224 00:14:15.039 --> 00:14:17.639 Let me say a few things starts, and I just 225 00:14:17.679 --> 00:14:19.679 have to do this because I'm a former FDC person. 226 00:14:21.440 --> 00:14:24.200 Those were not the only Section two cases brought from 227 00:14:24.200 --> 00:14:27.399 the Trump administration. There were other Section two cases as well. 228 00:14:27.679 --> 00:14:29.799 There was a conduct case and there was a merger case, 229 00:14:30.039 --> 00:14:34.000 both from the FTC. To the extent we have some 230 00:14:34.120 --> 00:14:38.840 qualifier on this, like significant or whatever. The big Tech 231 00:14:38.840 --> 00:14:42.080 case is definitely dealt with brands that are much more recognizable. 232 00:14:42.120 --> 00:14:44.559 But it's actually not true to say that there wasn't 233 00:14:45.159 --> 00:14:48.679 other Section two enforcement, and I think had importance to recognize, 234 00:14:48.960 --> 00:14:52.360 just as there was quite vigorous merger enforcement in the 235 00:14:52.360 --> 00:14:54.799 first Trump administration. But I want to come back to 236 00:14:54.840 --> 00:14:56.679 sort of the framing of the panel, which is about 237 00:14:56.720 --> 00:15:01.919 populism and antitrust. At least to me, populism is a 238 00:15:02.080 --> 00:15:05.759 form of politics. It's sort of a political instinct, and 239 00:15:05.879 --> 00:15:09.320 it can be very very effective in, you know, bringing 240 00:15:09.440 --> 00:15:14.080 attention to and popularity to a kind of law

enforcement. Right, 241 00:15:14.639 --> 00:15:17.159 It's certainly true people are signing up for anti trust 242 00:15:17.200 --> 00:15:20.600 classes intros. I don't know that it impacts what I make, 243 00:15:20.799 --> 00:15:23.080 but it certainly impacts like law students who are interested 244 00:15:23.080 --> 00:15:24.000 in the practice. 245 00:15:23.639 --> 00:15:25.720 Of law better try harder than help you out. 246 00:15:29.000 --> 00:15:33.799 It can also, right sometimes be a means by which 247 00:15:35.519 --> 00:15:39.519 enforcers are encouraged to do more of something. It can 248 00:15:39.559 --> 00:15:43.240 be a means by which legislation is adopted. Right, popular 249 00:15:43.320 --> 00:15:47.240 movements can lead politicians to adopt laws. There is some 250 00:15:47.320 --> 00:15:50.120 truth in that with respect to in particular, I think 251 00:15:50.159 --> 00:15:53.039 the Sherman anti trust of eighteen ninety, right, there was 252 00:15:53.399 --> 00:15:57.639 popular concern with the trusts, right, and they were dealt 253 00:15:57.679 --> 00:15:59.360 with to some extent at the state level, But there 254 00:15:59.399 --> 00:16:01.600 was felt a need for federal law, and that's what 255 00:16:01.720 --> 00:16:06.279 Congress adopted. What populism, though, is not good at and 256 00:16:06.320 --> 00:16:08.919 I think this is important to recognize is it's not 257 00:16:09.039 --> 00:16:14.120 a particularly good guide for how you do the day 258 00:16:14.159 --> 00:16:17.639 to day that constitutes antitrust. It's not a good guide 259 00:16:18.039 --> 00:16:22.279 for deciding whether someone is liable if you're really trying 260 00:16:22.320 --> 00:16:24.960 to apply the rule of law. Right, if all I 261 00:16:25.039 --> 00:16:27.600 know is who's doing it, and that's the answer to 262 00:16:27.639 --> 00:16:30.320 my question, it's probably not a rule of law that's 263 00:16:30.360 --> 00:16:35.600 being applied. It's also not a particularly helpful guide for 264 00:16:36.240 --> 00:16:37.440 advising companies. 265 00:16:37.840 --> 00:16:38.159 Right. 266 00:16:38.279 --> 00:16:41.519 So, like the business that I'm in now is helping 267 00:16:41.559 --> 00:16:45.679 people understand is that deal doable? Can I engage in 268 00:16:45.720 --> 00:16:50.200 this course of conduct? And simply saying something like you know, 269 00:16:50.799 --> 00:16:54.759 there's too much consolidation or corporate power is bad doesn't 270 00:16:54.799 --> 00:16:55.240 give me. 271 00:16:55.240 --> 00:16:56.360 A rule to apply. 272 00:16:56.919 --> 00:16:58.919 And when we're dealing with the rule of law, those 273 00:16:58.960 --> 00:17:02.679 are critical things, right, answers to those more difficult questions. 274 00:17:02.960 --> 00:17:06.359 I would also add this in particular with respect to legislation. 275 00:17:07.640 --> 00:17:11.200 We saw like a lot of political unity around the 276 00:17:11.240 --> 00:17:13.400 premise that

we should hold big tech accountable. 277 00:17:13.480 --> 00:17:13.599 Right. 278 00:17:13.640 --> 00:17:16.079 That was a phrase that we heard constantly from the hill. 279 00:17:16.119 --> 00:17:19.119 We heard it from Democrats, from Republicans. But when you 280 00:17:19.440 --> 00:17:22.400 peeled the onion just a bit, what you learned is 281 00:17:22.400 --> 00:17:26.279 that different people wanted to hold different companies accountable for 282 00:17:26.319 --> 00:17:29.680 different things, and the different like the different big tech 283 00:17:29.720 --> 00:17:33.599 companies were doing different things right that were upsetting to 284 00:17:33.680 --> 00:17:39.279 different groups of people. And when we're just drafting legislation, right, 285 00:17:39.440 --> 00:17:41.200 one of the things we have to grapple with is 286 00:17:41.240 --> 00:17:42.119 the effect. 287 00:17:41.720 --> 00:17:43.279 That that legislation is going to have. 288 00:17:43.640 --> 00:17:46.279 And what you saw in the legislative process, I think 289 00:17:47.000 --> 00:17:52.319 we disagree with this characterization was legislators dealing with the 290 00:17:52.359 --> 00:17:56.200 fact that maybe the thing that they were interested in 291 00:17:56.279 --> 00:17:59.599 remedying wasn't really the thing that the legislation was going 292 00:17:59.640 --> 00:18:03.559 to or maybe even they had a thing they had 293 00:18:03.559 --> 00:18:07.400 a concern that was like zero, and their partner on 294 00:18:07.440 --> 00:18:09.079 the other side of the aisle had a concern that 295 00:18:09.200 --> 00:18:11.319 was like one, and there was no way we were 296 00:18:11.319 --> 00:18:12.559 going to resolve these together. 297 00:18:12.759 --> 00:18:14.039 So I'll give an example of this. 298 00:18:15.519 --> 00:18:17.359 You wrote a piece about when I testified about this, 299 00:18:17.400 --> 00:18:18.559 so we can have this conversation. 300 00:18:19.000 --> 00:18:19.640 When I was in. 301 00:18:19.599 --> 00:18:24.200 Office at the FTC, Democrats would say that because of 302 00:18:24.240 --> 00:18:28.480 the absence of competition in social media, we have too 303 00:18:28.599 --> 00:18:32.680 much bad stuff on social media, and Republicans would say, 304 00:18:33.079 --> 00:18:35.920 because of the absence of competition on social media, we 305 00:18:36.000 --> 00:18:38.759 have too much censorship, meaning they're keeping too much stuff 306 00:18:38.880 --> 00:18:42.319 out of social media. Both people see a problem, and 307 00:18:42.359 --> 00:18:45.920 they're both invoking principles of competition, but they think that 308 00:18:46.000 --> 00:18:49.079 competition is going to yield opposite results, and the two 309 00:18:49.079 --> 00:18:52.240 are unlikely to be true at the same time. And 310 00:18:52.319 --> 00:18:56.559 certainly the legislation that they were considering wouldn't address both 311 00:18:56.599 --> 00:19:00.119 together because they had the

opposite goal in mind. And 312 00:19:00.160 --> 00:19:02.559 I think that's a critical thing when we think about 313 00:19:02.559 --> 00:19:06.440 populism and anti trust that often anti trust or generally 314 00:19:06.480 --> 00:19:09.160 anti trust is actually dealing in specifics that are a 315 00:19:09.200 --> 00:19:12.319 lot more granular. So now I've been talking too much. 316 00:19:13.359 --> 00:19:16.319 I have not seen peasants with pitchforks around the Ft 317 00:19:16.519 --> 00:19:21.240 shape building. So tell me about this widespread disaffection you've described. 318 00:19:21.960 --> 00:19:24.279 Well, so you know, it's easy to focus on the 319 00:19:24.640 --> 00:19:28.720 tech firms, I am, but that isn't the main I mean, 320 00:19:28.759 --> 00:19:31.880 there were a number of you know that anti trust 321 00:19:31.960 --> 00:19:37.119 was more significant across the economy. I will I will 322 00:19:37.119 --> 00:19:40.759 say there's a little bit of Wall Street was freaking 323 00:19:40.799 --> 00:19:42.960 out for four years of the Biden administration. 324 00:19:43.200 --> 00:19:44.519 At Lee Nukhan and Jonathan Canter. 325 00:19:44.799 --> 00:19:47.400 You turned on CNBC every single day they were mad 326 00:19:47.920 --> 00:19:51.519 that they were stopping mergers and or that they were 327 00:19:51.680 --> 00:19:55.920 trying to bring cases, and there was a you know, 328 00:19:56.119 --> 00:19:58.759 I often hear from the defense bar that, oh, well 329 00:19:58.759 --> 00:20:00.519 they didn't really bring that many cases. Is they didn't 330 00:20:00.519 --> 00:20:02.880 actually do anything very different, and they weren't very successful. 331 00:20:02.920 --> 00:20:05.000 There's a little bit of that old Woody Allen joke 332 00:20:05.079 --> 00:20:07.559 where he says, you know, the food is terrible and 333 00:20:07.599 --> 00:20:11.119 the portions are so small. Right, it's not that funny 334 00:20:11.240 --> 00:20:14.400 joke because considering the reaction in this audience, it's a 335 00:20:14.400 --> 00:20:14.880 good joke. 336 00:20:15.240 --> 00:20:16.039 I like that joke. 337 00:20:17.079 --> 00:20:19.519 Thank you for the it's always better if you sell 338 00:20:19.680 --> 00:20:20.759 you No, it's bad. 339 00:20:20.839 --> 00:20:22.359 Jokes are better if you have to explain them. Just 340 00:20:22.400 --> 00:20:23.119 an fyi. 341 00:20:24.319 --> 00:20:28.880 They come on laugh people there, But there isn't there's 342 00:20:28.920 --> 00:20:31.319 an element here of there was a significant change and 343 00:20:31.359 --> 00:20:32.519 the capital markets felt it. 344 00:20:32.839 --> 00:20:35.400 You can't just say, oh, it didn't happen. But they didn't. 345 00:20:35.440 --> 00:20:37.559 They didn't really succeed, They didn't really do anything. Like 346 00:20:37.839 --> 00:20:39.799 Walshet was very mad, and they were mad for a reason. 347 00:20:39.839 --> 00:20:41.759 But I want to get to something that you

talked 348 00:20:41.799 --> 00:20:44.400 about in terms of populism, because you're saying, like pop 349 00:20:44.440 --> 00:20:46.559 populism is not a very good guide for what to 350 00:20:46.599 --> 00:20:51.200 do or for how to organize, you know, legal cases, 351 00:20:51.480 --> 00:20:53.920 and I would I would make two observations about that. 352 00:20:53.960 --> 00:20:55.559 So first, I would bring an area where I think 353 00:20:55.559 --> 00:21:01.039 it's legitimate to use political guideposts to talk about enforcement priority. 354 00:21:01.079 --> 00:21:04.200 So last week you'll notice there was this Argentina bailout 355 00:21:04.400 --> 00:21:07.759 and US soybean farmers are really angry about it because 356 00:21:08.480 --> 00:21:11.119 Argentina has a lot of soybean producers too, and so 357 00:21:11.200 --> 00:21:13.039 the US is effectively bailing. 358 00:21:12.720 --> 00:21:14.880 Out their competitors. 359 00:21:15.000 --> 00:21:17.640 And so the Trump administration has promised a number of things. 360 00:21:17.640 --> 00:21:20.880 One of them is their own bailout. But another thing 361 00:21:20.920 --> 00:21:23.480 that they promised, and this was Brooke Rolins and Gale Slater, 362 00:21:23.599 --> 00:21:27.359 was they were going to look into agricultural input costs 363 00:21:27.440 --> 00:21:29.759 because as the price of soybeans and other row crops 364 00:21:29.759 --> 00:21:33.119 have gone down, the input costs have not, and this 365 00:21:33.279 --> 00:21:35.079 is well understood in the industry. 366 00:21:35.119 --> 00:21:36.279 Farmers really mad about it. 367 00:21:36.400 --> 00:21:38.839 Now, I don't think that there is anything wrong with 368 00:21:39.039 --> 00:21:42.519 a president or an administration saying, look, we see a problem, 369 00:21:42.599 --> 00:21:44.880 a policy problem in the sector, and we are going 370 00:21:44.920 --> 00:21:47.920 to put these tools in this particular area because we 371 00:21:47.960 --> 00:21:50.960 think it is important for the national interest. So that 372 00:21:51.240 --> 00:21:53.880 would be an area where I think the frustration from 373 00:21:53.920 --> 00:21:56.240 farmers and yes they I mean they weren't holding pitchforks, 374 00:21:56.240 --> 00:21:58.880 but you know, it's the age of AI, so they 375 00:21:58.960 --> 00:22:02.000 automate that or something. So that would be a legitimate 376 00:22:02.039 --> 00:22:06.160 area where you see public frustration turning into political action. 377 00:22:06.240 --> 00:22:08.640 This didn't really happen in the Biden administration. Biden wouldn't 378 00:22:08.640 --> 00:22:10.160 talk about anti trust. None of the people in the 379 00:22:10.160 --> 00:22:12.640 White House would talk about it. It really was much 380 00:22:12.680 --> 00:22:16.519 more oddly enough, there were structuralists. They were taking a 381 00:22:16.559 --> 00:22:20.000 much more populist approach. They but the political people in. 382 00:22:20.000 --> 00:22:21.640 The White House weren't using it. 383 00:22:21.759 --> 00:22:24.160 The other part of where I think we're seeing this is, 384 00:22:24.960 --> 00:22:27.720 you know, Andrew Feruson, who's the chair of the FTC, 385 00:22:28.519 --> 00:22:33.920 is you know, using lots of talking about DEI and wokeness. 386 00:22:34.160 --> 00:22:39.039 And he allowed a merger which was probably unlawful, between 387 00:22:39.480 --> 00:22:43.920 Omnicom and ipp which is two of the four big 388 00:22:43.960 --> 00:22:47.160 advertising agencies, and he did it as long as they 389 00:22:47.240 --> 00:22:50.799 agreed to spend more money, essentially on conservative advertising. And 390 00:22:50.839 --> 00:22:54.200 we know this because Twitter executives were saying, and this 391 00:22:54.240 --> 00:22:56.759 was quoted in the Wall Street Journal, you better advertise 392 00:22:56.799 --> 00:22:59.680 on us or else you're going to have anti trust problems. Now, 393 00:22:59.759 --> 00:23:02.440 that form of that's very political. 394 00:23:02.920 --> 00:23:04.240 I would argue. 395 00:23:04.599 --> 00:23:09.160 It is just explicitly benefiting conservative interest troops and engaging 396 00:23:09.160 --> 00:23:11.599 in forms of speech control, and that is coming from 397 00:23:11.599 --> 00:23:14.279 the Trump administration. You've seen this with Jimmy Kimmel, You've 398 00:23:14.279 --> 00:23:16.160 seen it in a number of other areas. And I 399 00:23:16.200 --> 00:23:20.559 think that form of arbitrary coercion is one that Democrats 400 00:23:20.559 --> 00:23:23.119 are very attuned to right now, but it's also one 401 00:23:23.160 --> 00:23:25.640 that I think Republicans. You go back a few years ago, 402 00:23:26.079 --> 00:23:29.599 and Republicans would be deeply attuned to. I think they 403 00:23:29.599 --> 00:23:33.000 would argue similar forms of arbitrary coercion. And I don't 404 00:23:33.000 --> 00:23:35.400 think you can get away from this problem that there 405 00:23:35.480 --> 00:23:38.640 is just arbitrary coercion going on in the economy writ large, 406 00:23:38.880 --> 00:23:41.079 and that there's a perception that the other side of 407 00:23:41.119 --> 00:23:45.599 the aisle is fusing the state with arbitrary coercive private 408 00:23:45.680 --> 00:23:48.599 entities to enact their own policy agenda. And that's why 409 00:23:48.640 --> 00:23:51.759 we're kind of beyond the era of bork and technocracy. 410 00:23:51.920 --> 00:23:53.799 You might want to bring it back, but it's gone. 411 00:23:54.200 --> 00:23:56.519 It's over, and we just see that that both parties 412 00:23:56.599 --> 00:23:58.640 have kind of abandoned it, so there really needs to 413 00:23:58.680 --> 00:24:04.920 be some more theoretical or I guess the conservative anti 414 00:24:04.920 --> 00:24:09.119 trust is under theorized because conservatives have not chosen whether 415 00:24:09.440 --> 00:24:13.960 they want to create liberty from

arbitrary coersion for everyone 416 00:24:14.400 --> 00:24:17.960 or fuse that arbitrary coersion with their own political leaders 417 00:24:18.000 --> 00:24:20.240 and enact a policy. Again, I don't think Democrats have 418 00:24:20.279 --> 00:24:23.160 necessarily made that choice either, But that is those are 419 00:24:23.200 --> 00:24:25.720 the stakes, and they're very important stakes. 420 00:24:26.799 --> 00:24:31.119 Yeah, a lot to unpack there, I think I note 421 00:24:31.119 --> 00:24:31.759 a few things. 422 00:24:31.799 --> 00:24:33.960 First of all, it's not clear to me is your 423 00:24:34.079 --> 00:24:38.079 position that that's good or bad? 424 00:24:38.960 --> 00:24:42.359 Like you seem to be like in favor. 425 00:24:42.039 --> 00:24:44.839 Of populism, but then you're criticizing the way that Trump 426 00:24:44.920 --> 00:24:49.400 administration is whether the second Trump administration is approaching it. 427 00:24:49.440 --> 00:24:52.000 And I guess one of the things that I noted 428 00:24:52.240 --> 00:24:54.400 or tried to note before is that one of the 429 00:24:54.440 --> 00:24:58.039 difficulties with populism is that sometimes we're at a level 430 00:24:58.039 --> 00:25:01.839 of sloveneering that it doesn't really give you a helpful guidepost. 431 00:25:02.000 --> 00:25:06.880 So it's not clear, like you're opposed to arbitrary coercion. Okay, 432 00:25:07.400 --> 00:25:10.119 and let's unpack what that means. So I guess I 433 00:25:10.160 --> 00:25:12.319 don't know kind of the direction that you want to 434 00:25:12.359 --> 00:25:12.559 go in. 435 00:25:12.680 --> 00:25:13.359 I know that you. 436 00:25:13.359 --> 00:25:19.359 Want less corporate power, however you define that, And I 437 00:25:19.400 --> 00:25:21.799 know you want more government power, and I guess be 438 00:25:21.920 --> 00:25:23.480 unnecessarily true, but I'll go. 439 00:25:24.799 --> 00:25:25.240 I can I go? 440 00:25:25.319 --> 00:25:29.079 Can I give an example two moderators for sorry. 441 00:25:30.079 --> 00:25:33.920 So, FTC in the Biden administration did two things that 442 00:25:33.960 --> 00:25:37.720 were very interesting, both of which were alluded to by 443 00:25:37.759 --> 00:25:44.079 Judge Ginsburg. One is, they introduced a redefinition of Section 444 00:25:44.200 --> 00:25:45.920 five of the FTC Act. So the way to think 445 00:25:45.920 --> 00:25:49.039 about this is like the FTC Act covers everything in 446 00:25:49.079 --> 00:25:52.359 the Sherman Act and then a margin outside it, and 447 00:25:52.599 --> 00:25:56.799 the scope of that margin has been debated for more 448 00:25:56.839 --> 00:25:58.880 than one hundred years, like one hundred and ten years 449 00:25:58.880 --> 00:26:03.960 since the FTC meant to being in nineteen fifteen. What 450 00:26:04.000 --> 00:26:07.440 the FTC effectively wrote in that document was that they 451 00:26:07.480 --> 00:26:11.200 could condemn whatever they want. At the same time, they 452 00:26:11.240 --> 00:26:13.519 were pushing the notion so that's the Section five state, 453 00:26:13.559 --> 00:26:17.519 that's the section plausive, And at the same time they 454 00:26:17.519 --> 00:26:21.079 were pushing the notion that they could fashion regulations around 455 00:26:21.160 --> 00:26:24.880 Section five. This arose in the context of noncompete agreements. 456 00:26:25.039 --> 00:26:28.720 There is something at least to me, terrifically concerning about 457 00:26:28.759 --> 00:26:31.279 making the statement that you can condemn what you want 458 00:26:31.279 --> 00:26:32.880 and I'm not going to let you know what it is, 459 00:26:33.240 --> 00:26:36.759 and also I can establish regulations around it. Like that's 460 00:26:36.799 --> 00:26:39.640 an awesome amount of power. And that was very much 461 00:26:39.759 --> 00:26:43.559 core to at least as I understood the anti trust 462 00:26:43.559 --> 00:26:44.440 reform project. 463 00:26:45.119 --> 00:26:48.960 So notably, the section five says that unfair methods of 464 00:26:49.920 --> 00:26:52.559 competition are barred, and one of the things that you 465 00:26:52.640 --> 00:26:55.839 will sort of see. And I've been thinking a lot 466 00:26:55.839 --> 00:26:59.440 about the moral economy, right, and it is weird in 467 00:26:59.480 --> 00:27:01.160 a sort of a found me weird moment, and I 468 00:27:01.160 --> 00:27:03.359 find the Conservative project. I really like this because you 469 00:27:03.359 --> 00:27:05.480 guys always go to first principles, and I'm a Democrat. 470 00:27:05.519 --> 00:27:06.960 We're not allowed to do that. All we get to 471 00:27:07.000 --> 00:27:09.039 do is worship the institution. So I like coming here. 472 00:27:09.240 --> 00:27:11.559 But it is really weird that we have a society 473 00:27:11.599 --> 00:27:15.119 that's full of sports, gambling and pornography and all of 474 00:27:15.160 --> 00:27:17.640 these things that you know, and they're considered parts of 475 00:27:17.680 --> 00:27:20.240 our speech or freedom, and like that was never like 476 00:27:20.319 --> 00:27:23.400 that's crazy if you go back to any other part 477 00:27:23.400 --> 00:27:27.599 of American history and yet to talk about yourselves as originalists, 478 00:27:27.640 --> 00:27:30.720 like that doesn't that just doesn't make any sense. So, 479 00:27:31.640 --> 00:27:34.720 you know, there were there were moral questions about you 480 00:27:34.759 --> 00:27:38.839 could never you could not patent things that helped gambling, 481 00:27:38.920 --> 00:27:39.200 Like that. 482 00:27:39.240 --> 00:27:41.359 Was something that existed until the nineteen sixties. 483 00:27:42.000 --> 00:27:44.200 From the early eighteen hundreds, there was an all set 484 00:27:44.240 --> 00:27:47.920 of moral implications in our economic order. And one of 485 00:27:47.960 --> 00:27:52.480 them is the concept of unfairness right, which which you 486 00:27:52.480 --> 00:27:56.279 know is all over

our statutes. And economists and defense 487 00:27:56.359 --> 00:27:58.880 lawyers just hate the concept of unfairness. They're like, oh, 488 00:27:58.920 --> 00:28:01.119 I can't define it. Oh my god, I don't know, 489 00:28:01.359 --> 00:28:03.519 Like how do I even know what's unfair and what's not? 490 00:28:04.000 --> 00:28:06.240 And then you talk to normal people and they're just 491 00:28:06.240 --> 00:28:09.720 getting screwed and harmed, and we've all been cheated, like 492 00:28:09.920 --> 00:28:11.720 every single one of us has been cheated, and we 493 00:28:11.759 --> 00:28:15.000 all know what unfairness is. Now there are definitions in 494 00:28:15.039 --> 00:28:17.920 section five. The section five statement. You know may just 495 00:28:18.079 --> 00:28:21.119 cited Supreme Court case after Supreme Court case saying this 496 00:28:21.200 --> 00:28:22.960 is what's unfair, this is what's not unfair. You know, 497 00:28:23.000 --> 00:28:24.640 it has to be a business method, it has to 498 00:28:24.640 --> 00:28:27.880 address competition. There are some market definition question there are 499 00:28:28.079 --> 00:28:31.119 Indishia here. It's not just whatever you want, but it 500 00:28:31.200 --> 00:28:33.960 is a moral statement, and it is saying that the 501 00:28:34.079 --> 00:28:38.400 idea that we need to just listen to what theoretical 502 00:28:38.480 --> 00:28:42.359 and speculative and unwieldy economic models say in terms of output, 503 00:28:42.359 --> 00:28:44.480 that that is not what the law means, and if 504 00:28:44.519 --> 00:28:46.519 you want it to mean that, then you should change 505 00:28:46.519 --> 00:28:47.559 the law to mean that. 506 00:28:48.079 --> 00:28:51.079 So, in a sense, I think a better. 507 00:28:50.839 --> 00:28:52.799 Example would be to look at what happened in twenty 508 00:28:52.880 --> 00:28:57.519 fifteen when Josh Wright, who who is somebody who was 509 00:28:57.519 --> 00:29:00.880 at George Mason, you know, was on the the FTC 510 00:29:00.960 --> 00:29:04.240 and he got and he was very influential, and he 511 00:29:04.319 --> 00:29:10.119 got the FTC to unanimously under Obama say that section five, 512 00:29:10.240 --> 00:29:14.359 which was explicitly written not in reaction to the Sherman Acts, 513 00:29:14.359 --> 00:29:16.920 because Congress said, no, no, this is the Sherman Act doesn't 514 00:29:16.920 --> 00:29:19.720 cover enough. He said no, no, Actually, what we need 515 00:29:19.759 --> 00:29:22.640 to do is we need to cabin our own authority 516 00:29:22.920 --> 00:29:26.920 to consumer welfare. The Sherman Act, Clayton Ax KNOCKO out 517 00:29:27.039 --> 00:29:30.240 of those bounds. And to me, that is just lawless. 518 00:29:30.400 --> 00:29:33.680 Those are just enforcers saying we're going to ignore what 519 00:29:33.880 --> 00:29:37.039 Congress said, and that is I think characteristic of the 520 00:29:37.079 --> 00:29:40.759 old technocratic model, which you saw again

with Robinson Patman 521 00:29:40.960 --> 00:29:42.880 was another example where they just said, yeah, we don't 522 00:29:42.920 --> 00:29:44.759 like the law, we're not going to enforce it. And 523 00:29:44.799 --> 00:29:47.480 I don't understand how you can think about the rule 524 00:29:47.480 --> 00:29:51.559 of law as a meaningful, binding set of constraints on 525 00:29:51.640 --> 00:29:53.440 society if you can just sort of pick and. 526 00:29:53.480 --> 00:29:56.119 Choose what you enforce and what you don't enforce. 527 00:29:56.200 --> 00:29:58.559 That's sort of what I saw with this old model 528 00:29:58.599 --> 00:30:02.680 of you know, of technocratic anti trust. I think we 529 00:30:02.759 --> 00:30:06.119 have serious problems with the new models of thinking about 530 00:30:06.839 --> 00:30:09.519 corporate power as well. But I just wanted to say 531 00:30:09.519 --> 00:30:12.000 we're beyond that old model for a lot of reasons, 532 00:30:12.400 --> 00:30:15.240 and we have to theorize new ways of thinking about 533 00:30:15.240 --> 00:30:15.960 this body of law. 534 00:30:16.640 --> 00:30:18.720 Can I speak to this. 535 00:30:18.680 --> 00:30:21.799 Moral economy as chief that you've phraised. It's really interesting. 536 00:30:22.119 --> 00:30:25.640 We used to have a joke at the FTC that, 537 00:30:25.799 --> 00:30:34.960 like gambling and liquor, we were sometimes protecting competition in 538 00:30:35.039 --> 00:30:38.400 things that were bad. Right, there's consumer demand for a product, 539 00:30:38.960 --> 00:30:45.960 maybe there's regulation, maybe there isn't. Nonetheless, there can be 540 00:30:46.039 --> 00:30:48.359 competition in that thing. There are people who think that 541 00:30:48.440 --> 00:30:53.400 video games are bad. I have a profoundly different perspective 542 00:30:53.440 --> 00:30:54.599 on this as a parent. 543 00:30:54.400 --> 00:30:55.359 Than I did as a child. 544 00:30:56.160 --> 00:30:59.400 I mean, in fact, I will hear myself like sounding 545 00:30:59.440 --> 00:31:01.440 like my dad when I talk to my son about it. 546 00:31:02.279 --> 00:31:09.839 Competition isn't necessarily going to yield only things that we esthetically, morally, 547 00:31:09.960 --> 00:31:14.279 or otherwise think is good. That's not necessarily what competition does. 548 00:31:14.319 --> 00:31:17.799 And I don't know why we would believe that so, Right, Competition, 549 00:31:17.920 --> 00:31:22.839 for example, may yield to or may yield like effects 550 00:31:22.880 --> 00:31:24.480 of business that. 551 00:31:24.519 --> 00:31:25.880 Are socially negative. 552 00:31:25.960 --> 00:31:28.599 Right, And so that's why we have regulations to deal 553 00:31:28.640 --> 00:31:32.519 with these things. Part of what competition enforcers should do 554 00:31:33.559 --> 00:31:36.759 is think about the competition part and so like, even 555 00:31:36.920 --> 00:31:43.119 if a deal were bad for Actually, i'll give you 556 00:31:43.119

--> 00:31:48.039 an example of this. We had a case involving the 557 00:31:48.200 --> 00:31:52.119 merger of two coal mines in the Southern Powder River 558 00:31:52.240 --> 00:31:55.839 basin in Wyoming. It's kind of a special kind of coal. 559 00:31:56.480 --> 00:31:59.720 One of the arguments against liability, which all the commissioners 560 00:31:59.720 --> 00:32:03.880 agreed upon, Democratic and Republican alike, was the notion that 561 00:32:04.039 --> 00:32:08.960 it doesn't really matter what happens in coal, because over 562 00:32:09.039 --> 00:32:12.680 time we're still moving to natural gas fired plants. 563 00:32:12.759 --> 00:32:12.880 Right. 564 00:32:12.920 --> 00:32:15.279 That's how we're going to produce more energy, and coal 565 00:32:15.359 --> 00:32:18.759 is sort of on the way. But another argument is that, like, 566 00:32:19.799 --> 00:32:22.440 maybe we don't want more coal production, and the benefit 567 00:32:22.480 --> 00:32:25.440 of a monopoly would be the reduction and output. But 568 00:32:25.480 --> 00:32:29.319 as a competition enforcer, that's not your job. And I 569 00:32:29.359 --> 00:32:32.839 do think like, nowhere in the history of the FTC Act, 570 00:32:33.519 --> 00:32:37.359 nowhere in the text, nowhere in the legislative history is 571 00:32:37.400 --> 00:32:40.519 this notion that the FTC commissioners are supposed to be 572 00:32:41.000 --> 00:32:45.000 moral determinants. Like I think that business is bad. I 573 00:32:45.039 --> 00:32:47.759 think that business is good. And I think that distinction 574 00:32:48.359 --> 00:32:51.880 right between what a competitive economy yields and what our 575 00:32:51.960 --> 00:32:54.759 vision of a moral economy might yield is important to understand. 576 00:32:54.799 --> 00:32:57.039 I'm not disagreeing you on the substance of what you're saying. 577 00:32:58.039 --> 00:33:02.200 You know, the competition isn't isn't necessarily a moral morally 578 00:33:02.240 --> 00:33:06.519 virtuous or you know, and and the FTC can. 579 00:33:07.200 --> 00:33:07.720 That it is. 580 00:33:07.759 --> 00:33:10.519 But yeah, it depends how you define it. 581 00:33:10.559 --> 00:33:12.079 I think that's a really core point. 582 00:33:12.119 --> 00:33:15.720 But Bork defined corpetition competition in a very different way 583 00:33:15.839 --> 00:33:16.160 than I. 584 00:33:16.079 --> 00:33:17.079 Think Brandeis would have. 585 00:33:17.599 --> 00:33:19.240 But I guess, you know, you just said that there's 586 00:33:19.279 --> 00:33:21.799 no moral there's nothing in the statutes of the FTC 587 00:33:22.000 --> 00:33:25.079 that has any moral valance, that has any that has any. 588 00:33:24.920 --> 00:33:26.039 Sort of moral statement. 589 00:33:27.160 --> 00:33:29.440 I mean, I don't know. We're talking about Section five. 590 00:33:29.519 --> 00:33:33.799 You know, unfair methods of competition. Unfair is a very clear, 591 00:33:34.640 --> 00:33:38.119 morally freighted word, and you also have unfair methods or 592 00:33:38.240 --> 00:33:41.200 unfair and deceptive practices another so. 593 00:33:41.559 --> 00:33:43.160 Very moral term. I mean you can't. 594 00:33:43.200 --> 00:33:45.400 I mean, like, obviously, you know liquor needs to be 595 00:33:45.440 --> 00:33:47.720 regulated in different there's a lots of different parts of communists. 596 00:33:47.720 --> 00:33:50.440 There's a reason, there's a lot of different bodies of law. 597 00:33:50.480 --> 00:33:53.920 But to say that there's no moral element to the FTC, 598 00:33:54.039 --> 00:33:56.079 it's just it's like, where why is the set you've 599 00:33:56.119 --> 00:33:57.039 written to say unfair? 600 00:33:57.440 --> 00:33:59.839 What I'm saying is that it doesn't give the commission 601 00:34:00.240 --> 00:34:04.160 license or law enforcement license to decide which things in 602 00:34:04.200 --> 00:34:07.039 the economy that's But that's not That's not what you 603 00:34:07.119 --> 00:34:07.599 said though. 604 00:34:08.159 --> 00:34:10.400 That what you said is there's nothing in the in 605 00:34:10.440 --> 00:34:13.519 the statue that says the FTC commissioners are general moral 606 00:34:13.639 --> 00:34:15.199 arbiters for the economy. 607 00:34:14.599 --> 00:34:17.840 Well, I yes, unfair methods of competition, that's what the 608 00:34:17.880 --> 00:34:20.119 statute says. But let me ask you this Matt, do 609 00:34:20.159 --> 00:34:24.519 you think right unfair methods of competition would enable the 610 00:34:24.599 --> 00:34:28.719 FTC to bless price fixing in like alcohol or gambling. No, 611 00:34:28.760 --> 00:34:31.840 of course, and reduce reduce the output of something that 612 00:34:31.920 --> 00:34:33.719 was morally of course not. 613 00:34:33.840 --> 00:34:36.960 Well, I'm not I'm not saying that the FTC is 614 00:34:36.960 --> 00:34:39.920 the moral arbiter of our society, and I don't think 615 00:34:39.960 --> 00:34:44.280 anybody would claim that. But we have a whole set 616 00:34:44.320 --> 00:34:48.199 of governing institutions. We have a whole set of civil institutions, 617 00:34:48.440 --> 00:34:51.079 we have a whole set of religious institutions, and all 618 00:34:51.119 --> 00:34:53.440 of these have a place in governing the. 619 00:34:53.360 --> 00:34:54.719 Morals of our society. 620 00:34:55.440 --> 00:34:58.840 The FTC doesn't have doesn't shouldn't tell you who to worship, 621 00:34:58.840 --> 00:35:02.039 and shouldn't tell you also you know whether an industry 622 00:35:02.119 --> 00:35:06.639 is good or bad. However, there is very clearly a 623 00:35:06.800 --> 00:35:10.599 moral lens that the FTC has to look at competition policy, 624 00:35:10.639 --> 00:35:15.320 which is why they wrote unfairness into the statute in 625 00:35:15.440 --> 00:35:18.559 multiple ways, and why there's such debate over unfairness, and 626 00:35:18.599 --> 00:35:22.719 why Josh Wright in twenty fifteen and Edith Ramirez tried 627

00:35:22.760 --> 00:35:26.639 to get rid of it through administrative FIA. You can't 628 00:35:26.719 --> 00:35:30.400 avoid the fact that morality is part of commerce. That's 629 00:35:30.440 --> 00:35:33.239 why people are so angry at being nickel and dimed 630 00:35:33.280 --> 00:35:35.280 even when they can afford it, because we don't like 631 00:35:35.320 --> 00:35:35.880 being cheated. 632 00:35:36.599 --> 00:35:39.519 So I want to speak to that. Even deception is 633 00:35:39.519 --> 00:35:42.559 a moral term. One of the things that the policy 634 00:35:42.679 --> 00:35:50.000 statement did right was take out of antitrust for purposes 635 00:35:50.000 --> 00:35:52.840 of section five, what we call the rule of reason. 636 00:35:53.360 --> 00:35:53.519 Right. 637 00:35:54.000 --> 00:35:56.519 It enabled the agency to create Sorry, this is like 638 00:35:56.559 --> 00:35:59.960 anti trust chargon. There's like two big buckets. There's person 639 00:36:00.639 --> 00:36:04.719 price fixing, market division. These things are obviously and clearly bad, 640 00:36:04.719 --> 00:36:06.360 and we don't need to ask a lot of questions 641 00:36:06.400 --> 00:36:09.880 about them. Sometimes even criminal liability can be assigned to them. 642 00:36:10.199 --> 00:36:12.599 And then there's the rest. And that's the rule of reason. 643 00:36:12.880 --> 00:36:15.360 And the general trend of the case law over many 644 00:36:15.400 --> 00:36:19.440 many decades has been toward the rule of reason. The premise, 645 00:36:19.760 --> 00:36:23.559 the idea behind the Section five policy statement is that 646 00:36:23.639 --> 00:36:28.679 the FTC can condemn things even though they would pass 647 00:36:28.800 --> 00:36:31.039 muster under the rule of reason. And the theory of 648 00:36:31.079 --> 00:36:34.480 the thing is that Congress in nineteen fourteen, when it 649 00:36:34.599 --> 00:36:38.159 passed the FTC Act, looked at the Standard Oil decision 650 00:36:38.159 --> 00:36:42.280 from nineteen eleven, which articulated a version of the rule 651 00:36:42.280 --> 00:36:46.280 of reason and rejected it. And so the FTC in 652 00:36:46.840 --> 00:36:50.440 what was it twenty twenty three, twenty twenty four, twenty 653 00:36:50.480 --> 00:36:53.719 twenty two, said to itself, great, I don't need to 654 00:36:53.760 --> 00:36:55.599 do all the things that the rule of reason requires. 655 00:36:55.639 --> 00:36:57.519 So what the rule of reason in some and substance 656 00:36:57.559 --> 00:37:00.480 requires is that you do a careful examination of the 657 00:37:00.519 --> 00:37:03.199 markets at issue and the conducted issue and what effect 658 00:37:03.559 --> 00:37:08.440 in those markets that conduct hask. It is not true 659 00:37:09.039 --> 00:37:12.440 that the FTC Act categorically rejected the rules of reason. 660 00:37:12.800 --> 00:37:15.400 It's answer to what the courts were doing and the 661 00:37:15.519 --> 00:37:18.440 legislators were annoyed that the courts seemed to be taking 662 00:37:18.480 --> 00:37:22.480 power over things was a structural Sorry, that's the wrong word. 663 00:37:22.519 --> 00:37:27.079 It was an institutional response instead of doing just court 664 00:37:27.360 --> 00:37:31.199 mediated antitrust. We're going to have two other selves. One 665 00:37:31.239 --> 00:37:34.400 is congressional and one is through an expert agency. The 666 00:37:34.400 --> 00:37:39.639 congressional response was the Clayton Act that actually came just 667 00:37:39.719 --> 00:37:42.519 before and the Clayton Act is a series of more 668 00:37:42.920 --> 00:37:47.519 specific things that are condemnable under the antitrust laws as 669 00:37:47.559 --> 00:37:49.880 opposed to the Sherman Act, which is written in very 670 00:37:50.039 --> 00:37:54.280 very broad terms. And the second response is institutional. They 671 00:37:54.280 --> 00:37:57.199 create an agency in theory and expert agency, and that's 672 00:37:57.239 --> 00:38:00.880 the FTC. And so the difference is less like the 673 00:38:01.000 --> 00:38:04.719 substantive liability. It's more in the process for getting out 674 00:38:04.719 --> 00:38:06.960 of it. One is a congressional response and one is 675 00:38:07.000 --> 00:38:10.440 having an agency to do it. And yes, like the 676 00:38:10.519 --> 00:38:12.960 wordfare is a little bit different, and we recognize it 677 00:38:13.000 --> 00:38:15.960 to be a little different than we do restraints of 678 00:38:16.000 --> 00:38:20.800 trade under the Sherman Act, but it's also not true 679 00:38:20.800 --> 00:38:23.039 that we've ever viewed it, I mean, other than this 680 00:38:23.079 --> 00:38:26.639 one policy statement as a general rip for that agency 681 00:38:26.840 --> 00:38:28.079 to condemn whatever it wants. 682 00:38:29.119 --> 00:38:33.679 Okay, So I guess I want to get pull out 683 00:38:33.719 --> 00:38:37.239 of the sort of details of the law because I 684 00:38:37.280 --> 00:38:40.320 think it's missing, the conversation is missing a sort of 685 00:38:40.360 --> 00:38:46.000 perspective of just ordinary people's experience of the economy, why 686 00:38:46.039 --> 00:38:50.199 they're so angry about what's happening right now. So I'll 687 00:38:50.280 --> 00:38:52.440 just note there's this quote that always sticks with me, 688 00:38:53.039 --> 00:38:55.719 which is a small business person who sold auto parts, 689 00:38:56.039 --> 00:39:00.119 and it was in twenty nineteen, and he said, the 690 00:39:00.440 --> 00:39:04.719 government can harass me and find me, but Google can 691 00:39:04.719 --> 00:39:07.920 make me homeless because Google, could you know, with its 692 00:39:07.920 --> 00:39:11.320 algorithm not intentional, just took him out of Google Maps, 693 00:39:12.159 --> 00:39:14.880 and I think, what, I hear this all the time 694 00:39:15.199 --> 00:39:17.320 across lots of different areas of our economy. 695 00:39:17.360 --> 00:39:18.800 It's not just big

tech. Today. 696 00:39:18.800 --> 00:39:20.239 I got an email or yesterday I got an email 697 00:39:20.280 --> 00:39:22.320 from somebody who does his state sales. There's like an 698 00:39:22.440 --> 00:39:26.280 estate sale portal monopoly. I hear it from people who buy. 699 00:39:27.599 --> 00:39:29.079 What's it called the. 700 00:39:28.760 --> 00:39:31.159 Office for coolers of water, Like there's just been a 701 00:39:31.239 --> 00:39:32.320 roll up into a monopoly. 702 00:39:32.400 --> 00:39:32.679 There. 703 00:39:33.000 --> 00:39:35.719 Hear it just kind of in all parts of the economy. 704 00:39:35.880 --> 00:39:40.840 There is fear. There is fear, and you saw it 705 00:39:40.880 --> 00:39:43.320 in the conservative space a few years ago when these 706 00:39:43.320 --> 00:39:46.880 companies were banning conservative speakers. 707 00:39:47.880 --> 00:39:48.440 That fear. 708 00:39:48.639 --> 00:39:52.519 You felt that that is what every American feels about 709 00:39:52.559 --> 00:39:56.400 the private coercive entities that have been allowed to emerge 710 00:39:56.800 --> 00:39:58.239 because of the Bork Framework. 711 00:39:59.079 --> 00:40:01.639 And there is a choice here about what to do 712 00:40:01.719 --> 00:40:02.199 about that. 713 00:40:02.599 --> 00:40:06.960 Are we going to have a country where life, liberty, 714 00:40:07.000 --> 00:40:10.079 and the pursuit of happiness are available to all of us, 715 00:40:10.440 --> 00:40:13.599 or are we going to continue down this road to 716 00:40:13.679 --> 00:40:16.280 surf them. And that is the choice, and that is 717 00:40:16.280 --> 00:40:18.519 the choice that we have to make as a society, 718 00:40:18.880 --> 00:40:21.599 as political actors as well. And that's the fight that 719 00:40:21.679 --> 00:40:24.360 I think is happening within the Trump administration. It's happening 720 00:40:24.360 --> 00:40:26.119 on the democratic side of the aisle, it's happening in 721 00:40:26.199 --> 00:40:28.840 rooms like this, and it's also happening in conversations over 722 00:40:28.840 --> 00:40:29.719 things like the Federal Reserve. 723 00:40:29.920 --> 00:40:32.039 And I just want to want to center this. 724 00:40:32.239 --> 00:40:35.559 In this really fundamental moral and political question that does 725 00:40:35.599 --> 00:40:37.960 go back to the English Civil. 726 00:40:37.679 --> 00:40:41.840 War and Levelers and all the rest of that. So anyway, 727 00:40:42.119 --> 00:40:42.639 all right. 728 00:40:42.559 --> 00:40:47.199 I want to take a slight turn up direction here. 729 00:40:47.800 --> 00:40:51.519 Can the two of you agree that weaponization of ani 730 00:40:51.599 --> 00:40:58.599 trust is and should be a concern and a bipartisan concern. Yeah, yeah, okay, 731 00:40:59.079 --> 00:41:03.360 So engining the consumer welfare standard, the Bork approach with 732 00:41:03.480 --> 00:41:07.840 you as you've broadly described it, for some more subjective 733 00:41:08.679 --> 00:41:13.400 criteria such as fairness, just increase the potential to weaponize 734 00:41:13.519 --> 00:41:14.719 kind of trust enforcement. 735 00:41:15.239 --> 00:41:17.519 So there's no such thing as the consumer welfare standard, 736 00:41:17.639 --> 00:41:18.079 you can. 737 00:41:18.360 --> 00:41:23.239 You know, when I first started looking at antitrust in well, 738 00:41:23.280 --> 00:41:27.360 I was a young man. Then the consumer welfare standard 739 00:41:27.440 --> 00:41:30.199 was about short term price effects. Bork wrote about it 740 00:41:30.239 --> 00:41:35.440 as as price theory, and then people started saying, well, 741 00:41:35.719 --> 00:41:38.840 but how did you allow Google to get so big? 742 00:41:38.880 --> 00:41:41.960 How why are their monopolies everywhere. This seems like it's 743 00:41:42.000 --> 00:41:45.079 not really helping. And also consumers aren't doing so well, 744 00:41:45.599 --> 00:41:48.320 and oh, we can change the consumer. 745 00:41:48.360 --> 00:41:48.559 We can. 746 00:41:48.599 --> 00:41:51.239 We can incorporate innovation, we can incorporate quality. Oh, we 747 00:41:51.280 --> 00:41:54.280 can incorporate labor. We can totally you know, change the 748 00:41:54.320 --> 00:41:58.159 standard to match every you know, to match like new 749 00:41:58.199 --> 00:41:58.760 needs and stuff. 750 00:41:58.760 --> 00:42:00.760 And then you're just not good about standard. 751 00:42:00.760 --> 00:42:04.800 You're just like, it's just you just substituted on fairness 752 00:42:04.920 --> 00:42:08.239 or you know, the monopolization attempt to anoplish all these 753 00:42:08.280 --> 00:42:10.639 laws that are words that are in statute with a 754 00:42:10.639 --> 00:42:13.400 different set of words that are not in statute and 755 00:42:13.639 --> 00:42:15.519 are just tweaking, you know, just changing. 756 00:42:15.280 --> 00:42:17.199 Fairness is your word if we use fair enough. 757 00:42:17.440 --> 00:42:19.760 Fairness is not my word on fairness is in Section 758 00:42:19.800 --> 00:42:21.079 five fair. 759 00:42:20.960 --> 00:42:23.159 Enough, but the one you would like to say emphasized 760 00:42:23.239 --> 00:42:23.960 more than it is. 761 00:42:24.039 --> 00:42:26.119 I'm not saying it needs to be emphasized more than 762 00:42:26.159 --> 00:42:28.119 it is. What I'm saying is it's there. I'm saying 763 00:42:28.119 --> 00:42:31.599 it's there. My issue is simply that I don't think 764 00:42:31.599 --> 00:42:34.719 that the conservative that the I mean, the conservative legal 765 00:42:34.719 --> 00:42:37.239 movement is heteronoxi as many different ports. But I think 766 00:42:37.280 --> 00:42:42.599 that the technocratic frame that came out of Stigler and 767 00:42:42.679 --> 00:42:47.320 Borg and Friedman just wholesale rejected the American tradition. And 768 00:42:47.360 --> 00:42:50.119 the American tradition is in a whole series of words 769 00:42:50.119 --> 00:42:53.199 that are put there in

statute by Congress that have 770 00:42:53.280 --> 00:42:56.679 common law meetings, meanings that go back to the Middle Ages. 771 00:42:56.800 --> 00:42:59.239 And they just said, nah, that's not there. And I 772 00:42:59.840 --> 00:43:03.000 think that's not a legitimate way to analyze law. And 773 00:43:03.039 --> 00:43:05.679 I think it has put us into a system of 774 00:43:05.840 --> 00:43:09.000 deep arbitrary coercion. And if we don't deal with it, 775 00:43:09.280 --> 00:43:11.599 they're going to come for you. That's the thing, is like, 776 00:43:11.679 --> 00:43:15.320 if we don't deal with this problem, you're in the crosshairs. 777 00:43:15.599 --> 00:43:19.679 So a system of arbitrary coercion where that is legal, 778 00:43:20.039 --> 00:43:22.480 is terrifying. And that is what Americans are experiencing in 779 00:43:22.480 --> 00:43:26.679 the commercial sector. It's what they've been experiencing for probably 780 00:43:26.719 --> 00:43:29.320 twenty thirty years, and that's coming for all of us 781 00:43:29.320 --> 00:43:30.440 if we don't put a stop to it. 782 00:43:31.039 --> 00:43:34.800 Okay, a few points. I think the first thing is. 783 00:43:36.280 --> 00:43:38.480 When you talk about putting a stop to it, I 784 00:43:38.519 --> 00:43:41.159 think what you mean is government power. 785 00:43:42.559 --> 00:43:43.920 No, I don't what is the. 786 00:43:45.559 --> 00:43:48.039 I think a lot well, we can hold. I want 787 00:43:48.039 --> 00:43:51.960 to hit a point here. You Mann specifically mentioned the 788 00:43:52.000 --> 00:43:56.599 concerns that conservatives had about being deep platform and being censored. 789 00:43:56.840 --> 00:44:00.280 You also criticized, right, the case that the FTC the 790 00:44:00.280 --> 00:44:05.239 merger enforcement action in ipg Omnicon, and there's an interesting 791 00:44:05.320 --> 00:44:08.320 tension there. But I think the thing I want to 792 00:44:08.360 --> 00:44:10.239 say one thing for the audience to understand. Because we 793 00:44:10.280 --> 00:44:14.480 throw around these terms like consumer welfare, throw around other 794 00:44:14.559 --> 00:44:18.880 terms as well. One of the big differences right that 795 00:44:18.880 --> 00:44:21.639 that kind of frame of thinking makes is the following. 796 00:44:22.320 --> 00:44:25.400 There are things you can do in commerce that will 797 00:44:25.440 --> 00:44:31.480 disadvantage smaller competitors but also benefit consumers. And the classic 798 00:44:31.519 --> 00:44:35.159 example of this is you take advantage of economy of scale, 799 00:44:35.559 --> 00:44:39.480 meaning you're a bigger company and so you can do 800 00:44:39.559 --> 00:44:42.119 things more cheeky. You have fewer lawyers that you need 801 00:44:42.159 --> 00:44:45.760 to advise you maybe you can secure better contracts with 802 00:44:45.880 --> 00:44:48.960 suppliers because you're willing to buy more of what they're 803 00:44:49.000 --> 00:44:54.280 selling and thus

turn those price decreases for yourself into 804 00:44:54.360 --> 00:44:58.280 lower prices for consumers. That has been the predominant framing. 805 00:44:58.400 --> 00:45:01.639 Understanding that that is consistent with competition has been the 806 00:45:01.679 --> 00:45:05.400 predominant training for decades it's something you object to. It's 807 00:45:05.440 --> 00:45:08.960 fair to have a debate. I think about the costs 808 00:45:08.960 --> 00:45:10.800 and the benefits of this conduct. But one of the 809 00:45:10.800 --> 00:45:12.719 things that needs to be part of that debate is 810 00:45:12.760 --> 00:45:15.719 part of what we're talking about are lower prices. And 811 00:45:15.840 --> 00:45:19.000 lower prices are something that people care very very much about. 812 00:45:19.159 --> 00:45:22.719 When we began to see inflation tick up just a bit, 813 00:45:23.280 --> 00:45:26.760 people really really got upset, and it had political ramifications, 814 00:45:26.920 --> 00:45:28.519 and that is totally understandable. 815 00:45:29.000 --> 00:45:29.559 It is not. 816 00:45:29.719 --> 00:45:33.239 Simply a question of whether a firm is large. The 817 00:45:33.360 --> 00:45:36.239 question and this is also true under the case law right, 818 00:45:36.320 --> 00:45:41.119 this is true under many many Supreme Court precedents. The 819 00:45:41.199 --> 00:45:43.960 question is not just your size, but what you are 820 00:45:44.039 --> 00:45:46.679 doing with that size. And if you have a rule 821 00:45:47.079 --> 00:45:50.719 that says it is illegal to succeed, if you have 822 00:45:50.760 --> 00:45:54.440 a rule that says it is illegal legitimately to attain monopoly, 823 00:45:54.480 --> 00:45:57.239 which is not the rule, sorry, which is not the rule, 824 00:45:57.920 --> 00:45:59.960 then what you will do is you will discourage things 825 00:46:00.079 --> 00:46:02.840 that are popular with consumers. You will discourage low prices. 826 00:46:02.920 --> 00:46:06.079 And your Robinson patent case is interesting, but the following reason. 827 00:46:07.079 --> 00:46:08.800 One of the things that the FTC did in this 828 00:46:08.880 --> 00:46:11.599 policy statement that I keep talking about is they said 829 00:46:11.599 --> 00:46:16.199 they could color a margin not only around the Sherman Act, 830 00:46:16.599 --> 00:46:19.480 which was the antecedent law when the FTC Act was passed, 831 00:46:19.920 --> 00:46:23.079 but also around the Robinson Patent acting. What Robinson Patent 832 00:46:23.119 --> 00:46:27.639 does is it bars certain kinds of discrimination and pricing 833 00:46:27.960 --> 00:46:31.679 that ultimately translate into certain kinds of discounting. 834 00:46:32.000 --> 00:46:33.840 So what the FTC was doing was they were. 835 00:46:33.719 --> 00:46:37.480 Saying, not only do you have to follow the statute 836 00:46:37.480 --> 00:46:40.480 and the case law on Robinson Patent, but also there 837 00:46:40.519 --> 00:46:43.280 are other discounts that we can condemn, but we're not 838 00:46:43.360 --> 00:46:45.440 going to tell you what those are. And what that 839 00:46:45.480 --> 00:46:48.639 means as a practical matter is that companies have to 840 00:46:48.679 --> 00:46:51.559 think twice before lowering their prices, and that is not 841 00:46:51.719 --> 00:46:54.559 good for consumers. And that is important. 842 00:46:54.840 --> 00:46:59.039 And I don't think Americans are happier with higher prices. Okay, 843 00:46:59.599 --> 00:47:01.000 I I think we can. 844 00:47:02.159 --> 00:47:05.519 I guess I started by talking about Microsoft Activision and 845 00:47:05.559 --> 00:47:08.719 the dramatic price hike that took place over a game pass. 846 00:47:09.280 --> 00:47:11.559 I mean there is a sort of speculative, an unwieldy, 847 00:47:11.840 --> 00:47:15.320 silly theoretical model in which you have to consolidate everything 848 00:47:15.320 --> 00:47:17.719 in order to lower prices. But I think people who 849 00:47:17.760 --> 00:47:20.639 live in the real world know that when companies get bigger, 850 00:47:20.719 --> 00:47:23.639 they don't get more efficient and they don't lower prices. 851 00:47:24.119 --> 00:47:27.920 And I think you can see that we have just 852 00:47:28.039 --> 00:47:32.599 macro economists. Look at the high persistent rate of profit 853 00:47:32.760 --> 00:47:35.079 in the US, which is relatively new. This is not 854 00:47:35.280 --> 00:47:37.760 something that America used to be a low profit, high 855 00:47:37.800 --> 00:47:41.960 productivity economy, and we're moving towards a high profit less 856 00:47:42.679 --> 00:47:47.039 sort of less productivity economy. Our companies are older, bigger, 857 00:47:47.360 --> 00:47:51.000 and more profitable than they've ever been. You just talk 858 00:47:51.039 --> 00:47:53.599 to any private equity guys, and they're looking for places 859 00:47:53.599 --> 00:47:55.519 that they can invest that have pricing power. Like, they're 860 00:47:55.559 --> 00:47:57.639 not trying to make things more efficient so they can 861 00:47:57.639 --> 00:48:00.199 deliver more to consumers. That's just like one of these 862 00:48:00.400 --> 00:48:02.360 silly models. And I think if you just talk, if 863 00:48:02.400 --> 00:48:04.400 you just do any polling, you'll find that most people 864 00:48:04.440 --> 00:48:07.639 are like, yeah, that's that's that's absurd. You've seen in 865 00:48:07.639 --> 00:48:10.559 a tremendous collapse of faith in big business and faith. 866 00:48:10.599 --> 00:48:13.079 One of the only institutions in America that it has 867 00:48:13.239 --> 00:48:15.360 the people like is small business. And there's a reason 868 00:48:15.400 --> 00:48:17.079 for that. And you can say, oh, that's fake. And 869 00:48:17.119 --> 00:48:20.320 my theoretical model of the world. That's actually what's going on, 870 00:48:20.400 --> 00:48:22.760 but the public is just not there anymore. 871 00:48:24.280 -->

00:48:27.400 People say that that's survey evidence. Let's say, okay, what 872 00:48:27.519 --> 00:48:30.000 did they do? They go to Walmart? They don't go 873 00:48:30.039 --> 00:48:33.760 to the local grocer of those small main street stores, right. 874 00:48:34.039 --> 00:48:35.920 Well, but that that I buy off of Amazon. 875 00:48:36.000 --> 00:48:39.199 I mean, the point of a monopoly is that they have, 876 00:48:40.000 --> 00:48:43.239 you know, is that that a monopoly makes it impossible 877 00:48:43.320 --> 00:48:46.000 not to do business with them. I mean, it's so 878 00:48:46.159 --> 00:48:48.239 one of so one of the the Amazon case of 879 00:48:48.239 --> 00:48:53.480 those no hey, when I'm talking time, so Amazon, for example, 880 00:48:53.559 --> 00:48:56.119 the anti trust case against Amazon from the FTC says 881 00:48:56.480 --> 00:49:01.039 that Amazon is artificially is tell companies that if they 882 00:49:01.159 --> 00:49:04.360 they're so big as an online seller, that if you 883 00:49:04.400 --> 00:49:07.719 want to sell through Amazon, you can't sell your products 884 00:49:07.840 --> 00:49:08.880 lower anywhere else. 885 00:49:09.199 --> 00:49:11.079 So Amazon looks like it has. 886 00:49:10.920 --> 00:49:13.320 The cheapest prices, but that's only because they're so powerful 887 00:49:13.360 --> 00:49:16.920 they can raise prices everywhere else in the economy. So 888 00:49:17.480 --> 00:49:20.440 I don't know, I think just this this notion that 889 00:49:20.840 --> 00:49:23.239 you know, these these companies are passing on lower prices, 890 00:49:23.239 --> 00:49:25.440 it just doesn't it's just not consistent. 891 00:49:25.000 --> 00:49:26.559 With with with what's happening. 892 00:49:27.039 --> 00:49:29.880 And if I'm not going to buy something it's more 893 00:49:29.880 --> 00:49:33.719 expensive on some thirty party site for some moral reason, 894 00:49:33.760 --> 00:49:35.920 I'm going to I'm going to buy it where it's cheapest. 895 00:49:36.280 --> 00:49:39.199 And if Amazon has the raw market power and the 896 00:49:39.239 --> 00:49:42.039 ability to coerce everyone else into raising their prices so 897 00:49:42.119 --> 00:49:46.239 that they can get massive fees, well that's a huge 898 00:49:46.239 --> 00:49:48.239 problem for the economy. But it's not something that you 899 00:49:48.280 --> 00:49:52.960 can solve with individual consumer behavior anymore that you can solve, 900 00:49:53.159 --> 00:49:56.760 you know, the any boycotts that have happened in our 901 00:49:56.840 --> 00:50:00.519 society without the follow on political action to address them. 902 00:50:00.960 --> 00:50:02.159 So I asked you about Walmart. 903 00:50:02.159 --> 00:50:06.360 You're answered with Amazon, Well about Walmart's larger. 904 00:50:06.199 --> 00:50:06.559 Isn't it? 905 00:50:07.079 --> 00:50:10.760 I think Amazon just passed. But they're similar, roughly similar. 906 00:50:10.840 --> 00:50:12.920 I mean Walmart is a good example. Like so the 907 00:50:13.239 --> 00:50:16.519 Walmart Pepsi case, well it was a Pepsi case, but 908 00:50:16.719 --> 00:50:19.960 you know it was redacted. They were like a company 909 00:50:19.960 --> 00:50:24.000 that rhymes with Smalmart, and so it was Pepsi sells 910 00:50:24.000 --> 00:50:24.800 its stuff to. 911 00:50:24.840 --> 00:50:27.360 Walmart for lower prices. And this is consistent. 912 00:50:27.480 --> 00:50:30.800 So you know, there was a private, you know, robson 913 00:50:30.840 --> 00:50:33.639 patent case where you know, a bag of Frito's or 914 00:50:33.639 --> 00:50:35.440 a bag of Drido something like that, which is owned 915 00:50:35.480 --> 00:50:38.039 by Pepsi. They sell it to a small grocer at 916 00:50:38.079 --> 00:50:40.719 five bucks, they sell it to, you know, a big 917 00:50:40.760 --> 00:50:43.119 grocer like a Kroger at two bucks. I'm just making 918 00:50:43.159 --> 00:50:44.960 up the numbers, but that's the gist of it. And 919 00:50:45.000 --> 00:50:47.480 it's like, that's not there's nothing more efficient about that. 920 00:50:47.480 --> 00:50:48.719 That's just raw bargaining power. 921 00:50:48.760 --> 00:50:49.880 And we have a law. We actually have. 922 00:50:49.880 --> 00:50:51.440 The Clayton Neck was passed to deal with that, but 923 00:50:51.480 --> 00:50:53.719 that didn't really work, and so Congress passed Robinson Pattan 924 00:50:53.800 --> 00:50:56.239 to deal with it, and for about forty years that 925 00:50:56.280 --> 00:50:58.079 worked until we stopped enforcing it. 926 00:50:58.119 --> 00:51:00.320 So the reason that you shop at Walmart is. 927 00:51:00.280 --> 00:51:04.400 Because Walmart has the bargaining power to tell all of 928 00:51:04.440 --> 00:51:06.920 these dominant firms that they need to get better prices, 929 00:51:06.960 --> 00:51:08.960 even though that's against the law. It's against the law 930 00:51:09.000 --> 00:51:11.239 that we haven't enforced for four years. You can't put 931 00:51:11.280 --> 00:51:12.079 that on the consumer. 932 00:51:12.199 --> 00:51:14.400 And then it turns out that Kroger and Albertson and 933 00:51:14.440 --> 00:51:16.199 all the others also have low prices. 934 00:51:16.320 --> 00:51:20.280 Well, Kroger and Albertson's not all the others. Those are 935 00:51:20.840 --> 00:51:23.559 the third biggest supermarket change in the country. 936 00:51:24.320 --> 00:51:25.920 And yeah, it's law. 937 00:51:25.960 --> 00:51:28.679 It's funny because when Albertson's executive went on the stand 938 00:51:29.119 --> 00:51:31.840 during the merger case between Kroger and Albertsons and said, look, 939 00:51:31.880 --> 00:51:34.400 we're getting killed by Walmart because we can't get good 940 00:51:34.480 --> 00:51:37.000 enough prices. And this is a twenty four billion dollar company. 941 00:51:37.039 --> 00:51:41.400 So look, if you want consolidation and arbitrary coercion, then 942 00:51:41.400 --> 00:51:44.400 you should allow for systemic

price discrimination. But if you 943 00:51:44.440 --> 00:51:46.559 want to follow the law, then you should And you 944 00:51:46.599 --> 00:51:50.159 want a free economy and bear markets, reasonable markets, actually 945 00:51:50.199 --> 00:51:53.000 open markets, then you know, at lower prices, then you 946 00:51:53.039 --> 00:51:55.119 would actually enforce the laws. And it worked, and when 947 00:51:55.159 --> 00:51:57.519 we stopped enforcing the laws, we have this society that's 948 00:51:57.559 --> 00:51:58.280 just gone crazy. 949 00:51:58.559 --> 00:52:03.840 So Walmart's an interesting example here because I think the 950 00:52:03.840 --> 00:52:08.400 notion that Walmart is arbitrarily coercing consumers doesn't make a 951 00:52:08.400 --> 00:52:10.679 lot of sense. You have a claim that they are 952 00:52:11.079 --> 00:52:15.679 coercing low prices from their suppliers, right, what are they 953 00:52:15.679 --> 00:52:18.360 doing with those lower prices? They are definitely translating it 954 00:52:18.400 --> 00:52:21.760 into low price for consumers. That's why people shop at Walmart, 955 00:52:21.920 --> 00:52:24.840 and those people like the same people. I think we 956 00:52:24.880 --> 00:52:27.280 all want to protect. I think those interests need to 957 00:52:27.320 --> 00:52:30.360 be taken into account, people really don't like to pay 958 00:52:30.360 --> 00:52:32.559 more than they have to for the products that they 959 00:52:32.559 --> 00:52:33.280 want access to. 960 00:52:33.519 --> 00:52:36.639 The notion that you are arbitrarily coerced to go to Walmart, 961 00:52:36.719 --> 00:52:38.320 I just don't think that Land. 962 00:52:38.519 --> 00:52:41.000 I am not talking just about consumers, although there have 963 00:52:41.039 --> 00:52:43.880 been serious deception cases against Walmart in a number of 964 00:52:43.880 --> 00:52:44.599 different areas. 965 00:52:45.039 --> 00:52:46.360 But let's just accept. 966 00:52:46.559 --> 00:52:48.519 I'll just accept for the state of their argument that 967 00:52:48.559 --> 00:52:54.119 Walmart offers low prices, they are coercing suppliers. 968 00:52:54.000 --> 00:52:55.599 Right, And I'll give you I'll give you an examples. 969 00:52:55.639 --> 00:52:56.840 The pepsi in your example. 970 00:52:56.960 --> 00:53:00.280 The victim here is Pepsi is so big that there's 971 00:53:00.639 --> 00:53:03.360 essentially an economy of golias. The victim here, and this 972 00:53:03.440 --> 00:53:06.199 is an example, would be a Snoop Dogg. He wanted 973 00:53:06.239 --> 00:53:08.880 to launch a cereal because he was like, look, I 974 00:53:09.320 --> 00:53:10.559 can launch a wave that's awesome. 975 00:53:10.800 --> 00:53:11.280 Yeah. Yeah. 976 00:53:11.519 --> 00:53:14.280 It was a sugar cereal targeted the black community because 977 00:53:14.280 --> 00:53:15.719 he's like, I can make sugar cereal as well as 978 00:53:15.719 --> 00:53:17.719 anyone else. And I wanted to make this a family business. 979 00:53:17.719 --> 00:53:20.800 And he went to Post, which and Post wanted to 980 00:53:20.800 --> 00:53:22.280 buy him out. He said, no, I want to keep 981 00:53:22.320 --> 00:53:26.079 this company in my family. And Post said sure, okay, 982 00:53:26.079 --> 00:53:30.199 we'll help you distribute it with Walmart, and then Post 983 00:53:30.320 --> 00:53:35.960 ended up not distributing it and you know, putting it 984 00:53:36.000 --> 00:53:39.960 in the back charging crazy prices. And Walmart was part 985 00:53:39.960 --> 00:53:43.880 of this too, because they wanted to prevent differentiated products 986 00:53:44.039 --> 00:53:45.920 from coming into the market. And that's why when you 987 00:53:45.960 --> 00:53:48.639 go into you know, and it's not just Walmart, but 988 00:53:48.679 --> 00:53:51.880 when you go into every like rest stop in America, 989 00:53:51.960 --> 00:53:55.119 which are consolidator, you go into like lots of different 990 00:53:55.119 --> 00:53:56.920 you know, there's seven eleven or lots of different stores. 991 00:53:57.000 --> 00:53:59.360 You see the same products everywhere in America. 992 00:53:59.400 --> 00:54:01.119 And he used to be you would go to a 993 00:54:01.159 --> 00:54:02.760 place that sells a lot of cherries, there would be 994 00:54:02.760 --> 00:54:04.880 a lot more cherry stuff. And you go into a 995 00:54:04.920 --> 00:54:06.320 place that has a lot of apples, you'd be a 996 00:54:06.320 --> 00:54:10.079 lot more apple stuff. We were regionally differentiated because people 997 00:54:10.079 --> 00:54:13.440 had the freedom to ply their trade. And now it's 998 00:54:13.480 --> 00:54:17.800 all just you know, gummy bears and the same you know, 999 00:54:17.880 --> 00:54:18.880 the same chocolates. 1000 00:54:19.000 --> 00:54:21.199 You took mister Beast tried to introduce chocolate. He said 1001 00:54:21.239 --> 00:54:21.639 it was a. 1002 00:54:21.719 --> 00:54:24.079 Nightmare to get into onto Walmart shelves. I mean, this 1003 00:54:24.239 --> 00:54:27.079 is an economy. We don't look at this as tyranny 1004 00:54:27.199 --> 00:54:29.280 because we divide up the world into the economics and 1005 00:54:29.320 --> 00:54:33.360 the political. But like, these are people's livelihoods. And mister 1006 00:54:33.400 --> 00:54:36.800 beast had trouble, if soup dog have trouble, what about 1007 00:54:36.800 --> 00:54:38.639 all the people that are not super famous and not 1008 00:54:38.719 --> 00:54:41.320 super wealthy, Like that's who I'm thinking about. And yet 1009 00:54:41.360 --> 00:54:44.239 it hurts consumers because if you look at Walmart, Walmart 1010 00:54:44.239 --> 00:54:47.159 goes into an area, it kills most of the of 1011 00:54:47.199 --> 00:54:49.679 the other grocers in the area, and obesity goes up 1012 00:54:49.840 --> 00:54:52.639 because people now are not able to get as many 1013 00:54:52.960 --> 00:54:55.320 fresh ingredients. This is alt a true more true with 1014

00:54:55.400 --> 00:54:58.320 dollar stores. There are all sorts of consequences here are 1015 00:54:58.360 --> 00:55:01.280 competing with Walmart, no off, and they will the dollar 1016 00:55:01.320 --> 00:55:03.760 store will come in when a Walmart has left, right, 1017 00:55:04.199 --> 00:55:04.960 This is like. 1018 00:55:07.440 --> 00:55:10.519 People are like, you find this all over the country. 1019 00:55:10.599 --> 00:55:11.760 This is not a partisan thing. 1020 00:55:12.159 --> 00:55:14.880 People are very upset when these big box stores come 1021 00:55:14.920 --> 00:55:18.199 to their town and get tax concessions and get infrastructure 1022 00:55:18.199 --> 00:55:21.760 concessions and then out compete their local guy who's actually 1023 00:55:21.800 --> 00:55:24.360 putting out the fresher stuff. It's why Iowa, which is 1024 00:55:24.400 --> 00:55:27.679 the best soil in the world, doesn't sell its own food. 1025 00:55:27.719 --> 00:55:29.360 They they if they. 1026 00:55:29.280 --> 00:55:32.920 Out compete and they win, and they offer people whatever 1027 00:55:32.960 --> 00:55:33.920 it is they want convenience. 1028 00:55:34.079 --> 00:55:37.039 Stop, that's a company you give me. It might be 1029 00:55:37.079 --> 00:55:38.800 a problem, but that's not a companution. 1030 00:55:39.039 --> 00:55:42.960 Give me a billion dollar tax concession and better prices 1031 00:55:43.079 --> 00:55:47.039 on every good that I on a wholesale level, and 1032 00:55:47.159 --> 00:55:49.800 I will outcompete you every time. And you can't tell 1033 00:55:49.840 --> 00:55:51.599 me that that is because I'm better at it. 1034 00:55:51.840 --> 00:55:55.039 I don't disagree with you that the government intervention in 1035 00:55:55.119 --> 00:55:56.920 markets can distort coming. 1036 00:55:56.719 --> 00:56:01.320 Say, government intervention where you did? Oh yeah, tax and sessions. Yeah, 1037 00:56:01.440 --> 00:56:04.679 so municipal Okay, so you know tax and sessions. Yes, Well, 1038 00:56:04.719 --> 00:56:06.920 I mean I'm just saying that that so we're talking 1039 00:56:06.960 --> 00:56:08.400 about pop This is the avantage. 1040 00:56:08.079 --> 00:56:09.159 Of being a lawyer. I could be like, well, I'm 1041 00:56:09.159 --> 00:56:12.599 not a lawyer. Uh, don't prove me wrong. That's awkward. 1042 00:56:15.360 --> 00:56:18.400 But the point is is that you know, you can 1043 00:56:18.639 --> 00:56:21.239 Most people don't see the law as like a set 1044 00:56:21.280 --> 00:56:24.880 of discreet silos. They see the society that's around them, 1045 00:56:24.960 --> 00:56:28.199 and they see no opportunities and they and and that 1046 00:56:28.360 --> 00:56:31.440 is because the political power that Walmart had when they 1047 00:56:31.480 --> 00:56:33.480 lobbied to drop the Robinson patent case. 1048 00:56:33.679 --> 00:56:35.639 And that is what happened, and we know. 1049 00:56:35.639 --> 00:56:39.159 That Walmart and Pepsi did it is the same political 1050 00:56:39.199 --> 00:56:42.800 power that they use to get those tax concessions and 1051 00:56:43.000 --> 00:56:45.559 destroy all of the local people who used to be 1052 00:56:45.639 --> 00:56:48.239 able to make a little something of theirselves, build a 1053 00:56:48.280 --> 00:56:49.239 community institution. 1054 00:56:49.800 --> 00:56:51.920 And now it's just it's just not that way in 1055 00:56:51.960 --> 00:56:53.599 America anymore. And you want to live in. 1056 00:56:53.559 --> 00:56:56.079 A society like that, you know, it's it's a society 1057 00:56:56.079 --> 00:56:59.000 where people are killing themselves, society where people are very, 1058 00:56:59.119 --> 00:57:01.639 very angry. And I'm just saying it's not just the 1059 00:57:01.639 --> 00:57:04.000 anti trust that's doing it. But you can't ignore the 1060 00:57:04.039 --> 00:57:07.199 consolidation of power and the coersion that goes along with it. 1061 00:57:07.559 --> 00:57:10.480 Nor frankly, can you ignore the fact that Trump is 1062 00:57:10.519 --> 00:57:13.679 fusing the state with that private coercion in a very 1063 00:57:13.760 --> 00:57:16.079 dangerous way that I think is going to come for 1064 00:57:16.159 --> 00:57:17.639 all of us if we don't stop it. 1065 00:57:17.679 --> 00:57:20.480 And that was that's not just a Republican thing. 1066 00:57:20.920 --> 00:57:22.519 That is a that is something that I think you 1067 00:57:22.519 --> 00:57:24.599 could see on the Democratic side as well with a 1068 00:57:24.639 --> 00:57:26.559 lot of speech. Some of the speech stuff I didn't 1069 00:57:26.599 --> 00:57:28.519 like what some of the Democrats were saying there. But 1070 00:57:28.559 --> 00:57:32.360 this is a consolidated economy, is a loaded gun. You're 1071 00:57:32.440 --> 00:57:35.159 leaving around for anyone to pick up and point it 1072 00:57:35.199 --> 00:57:39.039 at whole regions, at our ability to speak. And people 1073 00:57:39.079 --> 00:57:41.280 may not use that gun, or they may use it, 1074 00:57:41.360 --> 00:57:43.960 but it is a loaded gun. That is just a weapon, 1075 00:57:44.119 --> 00:57:46.199 and we have to get rid of that or else 1076 00:57:46.239 --> 00:57:47.760 we won't live in a free country anymore. 1077 00:57:47.760 --> 00:57:49.679 And your vision of how we get rid of it is. 1078 00:57:50.800 --> 00:57:52.800 I think a lot of humbers down. No, the state 1079 00:57:52.880 --> 00:57:53.639 comes down. 1080 00:57:53.440 --> 00:57:55.679 And I think a lot of them right like, and 1081 00:57:55.800 --> 00:57:57.079 you don't gy. 1082 00:57:56.719 --> 00:57:59.880 We prevent people from winning in the market by actually look. 1083 00:58:00.119 --> 00:58:00.960 Per se rules. 1084 00:58:01.320 --> 00:58:04.360 Look, nobody says that a stop sign is arbitrary and 1085 00:58:04.400 --> 00:58:05.840 coercive in micromanagement. 1086 00:58:05.960 --> 00:58:07.679 Okay, a stop sign just on the stop sign and 1087 00:58:07.719 -->

00:58:08.599 we okay. 1088 00:58:08.480 --> 00:58:13.000 Fair enough, but you'll you'll you know, cravaft us. A 1089 00:58:13.000 --> 00:58:16.480 stop sign just says you got to stop every single time, right, 1090 00:58:16.760 --> 00:58:19.079 It doesn't matter if anyone's around, it doesn't matter if 1091 00:58:19.119 --> 00:58:20.679 it's dangerous, you stop. 1092 00:58:20.840 --> 00:58:21.199 Okay. 1093 00:58:21.760 --> 00:58:24.199 There's no there's no like rule of reason there, it's 1094 00:58:24.280 --> 00:58:26.719 just oh well, in his particular case, I didn't give 1095 00:58:26.760 --> 00:58:29.280 you a ticket because like, a stop sign is super 1096 00:58:29.280 --> 00:58:33.800 int is super easy to administer. I am in favor 1097 00:58:33.880 --> 00:58:35.960 of a whole set of rules like that per Se 1098 00:58:36.079 --> 00:58:37.559 rules that just you. 1099 00:58:37.519 --> 00:58:39.679 Know, number of companies in a market. 1100 00:58:39.719 --> 00:58:42.039 If it's fewer than five, no merger if there are 1101 00:58:42.079 --> 00:58:45.880 certain size caps. And I like the chain broadcasting rules 1102 00:58:45.920 --> 00:58:48.679 from the FCC in the nineteen forties, which just said, no, 1103 00:58:48.840 --> 00:58:50.159 we're just going to put straight up. Well, there's a 1104 00:58:50.159 --> 00:58:52.360 whole bunch of stop signs in the economy, so everybody 1105 00:58:52.480 --> 00:58:55.400 understands what is legal and what is not, versus this 1106 00:58:55.800 --> 00:58:58.079 totally arbitrary thing where you have to spend five million 1107 00:58:58.119 --> 00:59:00.320 dollars on an economist to find out whether the thing 1108 00:59:00.360 --> 00:59:01.000 is legal or not. 1109 00:59:01.199 --> 00:59:03.559 Like, that's crazy. The whole rule of reason idea is 1110 00:59:03.639 --> 00:59:04.360 totally nuts. 1111 00:59:04.360 --> 00:59:06.320 To say we have no idea whether this violates the 1112 00:59:06.400 --> 00:59:08.480 law until we bring it before a judge and that 1113 00:59:08.559 --> 00:59:11.440 judge pontificates for five years and then makes a decision 1114 00:59:11.440 --> 00:59:13.519 Like that is a crazy that's not the rule of law. 1115 00:59:13.760 --> 00:59:17.239 So I think you just actually write rules, write real 1116 00:59:17.320 --> 00:59:19.920 rules that just say that are that are simple and 1117 00:59:19.960 --> 00:59:22.679 easy to follow, And that's how we used to do 1118 00:59:22.760 --> 00:59:24.960 it and it worked. 1119 00:59:25.239 --> 00:59:27.000 Okay, So first of all, that's not actually how we 1120 00:59:27.119 --> 00:59:29.800 used to do it. The per Se rules arose largely 1121 00:59:29.920 --> 00:59:33.320 after the rule of reason right like is pretty long standing. 1122 00:59:33.559 --> 00:59:36.480 But let's leave us. For example, the rule of reason. 1123 00:59:36.239 --> 00:59:39.239 Applying to non compete laws Team Electic, the nineteen night 1124 00:59:39.400 --> 00:59:42.800 reason and its application to non compete rules in labor 1125 00:59:42.840 --> 00:59:45.320 contract goes back to the Middle Ages, right. 1126 00:59:45.199 --> 00:59:47.960 Because we didn't have labor contracts because we didn't have printers. 1127 00:59:48.079 --> 00:59:51.559 Yeah, I have labor con We did that while they 1128 00:59:51.599 --> 00:59:53.760 were litigating them in Old England, Almos, that's why we 1129 00:59:53.800 --> 00:59:54.039 know that. 1130 00:59:54.239 --> 00:59:56.239 Yes, when they sold the bakery or something like that. 1131 00:59:56.400 --> 00:59:59.760 I mean, come on, man, this is let's talk about rules. 1132 01:00:00.400 --> 01:00:03.719 I agree with you, it's good right when we have 1133 01:00:03.800 --> 01:00:04.840 clear rules to follow. 1134 01:00:06.039 --> 01:00:07.320 The problem with. 1135 01:00:07.480 --> 01:00:10.880 Just imposing rules on everything is that those rules have costs. 1136 01:00:11.199 --> 01:00:13.639 So we could make driving safer if no one could 1137 01:00:13.639 --> 01:00:17.480 ever drive above forty five. By the same token, there 1138 01:00:17.480 --> 01:00:20.079 are lots of other rules in the economy that govern 1139 01:00:20.199 --> 01:00:23.000 conduct that isn't inherently bad. And this is the problem 1140 01:00:23.000 --> 01:00:25.400 with the argument, is that you are taking things that 1141 01:00:25.519 --> 01:00:29.079 generate benefits and you want to ban them. Don't have 1142 01:00:29.119 --> 01:00:32.760 any more discounts, right, don't ever merge. These aren't things 1143 01:00:32.760 --> 01:00:36.599 that are inherently bad. Quite the contrary, they generate lots 1144 01:00:36.599 --> 01:00:40.199 of benefits for consumers, and that is it is again 1145 01:00:40.360 --> 01:00:41.880 fair to have these policy arguments. 1146 01:00:41.880 --> 01:00:43.760 But I think we actually need to weigh the costs. 1147 01:00:44.159 --> 01:00:47.159 The drive to do things that are better for small 1148 01:00:47.199 --> 01:00:50.679 businesses and bad for consumers, which has been the thrust 1149 01:00:50.719 --> 01:00:53.400 of a lot of the criticism over the last few years, 1150 01:00:53.599 --> 01:00:56.360 is a conversation worth having as long as we take 1151 01:00:56.360 --> 01:00:58.840 into account the cost that it imposes. And I think 1152 01:00:58.880 --> 01:01:01.320 that is a really important parts of the policy conversation. 1153 01:01:01.480 --> 01:01:04.000 All right, well, I appreciate the argument against stop signs. 1154 01:01:05.800 --> 01:01:08.440 Effectively, what is you said of writing a rule for 1155 01:01:08.519 --> 01:01:11.280 everyone has costs and therefore we shouldn't do it. 1156 01:01:11.400 --> 01:01:13.800 Well, I mean, okay, context. 1157 01:01:13.599 --> 01:01:15.679 Having rules right like, we have to waive a cost 1158 01:01:15.760 --> 01:01:18.079 and the benefits, and we obviously decided as a society, 1159 01:01:18.159 --> 01:01:21.639 look hold

on that we want stop signs on certain court. 1160 01:01:23.119 --> 01:01:26.679 Having more or less rules? Is this weird libertarian fetish 1161 01:01:26.800 --> 01:01:30.119 about what freedom is. It's ridiculous to say that more 1162 01:01:30.280 --> 01:01:33.239 or fewer rules creates more or less freedom. I could 1163 01:01:33.239 --> 01:01:35.920 see a society where you have a master, and your 1164 01:01:35.960 --> 01:01:38.280 master is really nice to you and says, go do 1165 01:01:38.559 --> 01:01:41.000 whatever you want, and you are super free. 1166 01:01:41.079 --> 01:01:43.079 I could also see a society where there are no. 1167 01:01:43.119 --> 01:01:47.280 Masters, but you know gambling is illegal, and are you saying, well, 1168 01:01:47.360 --> 01:01:49.639 you get to gamble, but you have a master. Therefore 1169 01:01:49.719 --> 01:01:52.159 you're more free than people who are who don't actually 1170 01:01:52.159 --> 01:01:55.079 have masters. And it's this really dumb way to understand 1171 01:01:55.079 --> 01:01:58.440 the world, which is why intuitively we all understand that 1172 01:01:58.480 --> 01:02:02.320 when someone coerces you it's wrong in a way that 1173 01:02:02.400 --> 01:02:04.760 it is not wrong when there are just rules against 1174 01:02:04.760 --> 01:02:07.920 gambling or rules against that bind us all on basic 1175 01:02:08.039 --> 01:02:11.800 moral assumptions like it just there's just two different visions 1176 01:02:11.840 --> 01:02:14.719 of freedom here. And my vision of freedom is the 1177 01:02:14.760 --> 01:02:17.360 one that's in the Declaration of Independence, It's the one 1178 01:02:17.440 --> 01:02:20.039 that's in the Sherman Act, it's the one that's in 1179 01:02:20.079 --> 01:02:24.079 the Gettysburg Address. And your your vision of freedom is 1180 01:02:24.119 --> 01:02:26.199 the one that I'm reading English. 1181 01:02:25.920 --> 01:02:27.920 Civil War books right now. But it's it's you know, 1182 01:02:27.960 --> 01:02:30.920 it's King James, right. It's this goes back. 1183 01:02:30.719 --> 01:02:33.400 To you just are into the divine right of kings, 1184 01:02:33.440 --> 01:02:36.239 and I just think we this country was founded to 1185 01:02:36.280 --> 01:02:36.800 oppose that. 1186 01:02:37.199 --> 01:02:39.320 Thirty seconds Noah and we're finished. 1187 01:02:41.639 --> 01:02:46.440 I guess I wanted to the divine right of kings. 1188 01:02:48.280 --> 01:02:49.760 I think let me say the far I want to 1189 01:02:49.800 --> 01:02:51.480 address the audience first of all, I want to think 1190 01:02:51.480 --> 01:02:54.559 the judge. This is what I hope was, in fact, 1191 01:02:54.599 --> 01:02:57.480 a fun conversation. I don't want to be to meet 1192 01:02:57.519 --> 01:03:00.800 my other conversations. This is a more fun conversation. 1193 01:03:00.280 --> 01:03:01.280 About and I trust. 1194 01:03:01.320 --> 01:03:01.519 Yeah. 1195 01:03:02.079 --> 01:03:05.440 Let's do it up and thank you all for being here. 1196 01:03:05.599 --> 01:03:06.360 That's all I. 1197 01:03:06.280 --> 01:03:06.679 Want to say. 1198 01:03:06.840 --> 01:03:09.880 Thank you, thanks so much, and to the audience. You 1199 01:03:09.960 --> 01:03:12.599 can still send us emails with questions or comments about 1200 01:03:12.639 --> 01:03:17.400 the show at CSAs at GMU dot edu. We read 1201 01:03:17.440 --> 01:03:19.320 all of them and work to make this the best 1202 01:03:19.360 --> 01:03:21.639 show it can be. If you like what you heard today, 1203 01:03:21.639 --> 01:03:24.239 please consider sharing the episode with a friend and leaving 1204 01:03:24.280 --> 01:03:26.719 us a five star review wherever you're listening so we 1205 01:03:26.760 --> 01:03:30.119 can keep bringing you more conversations like this one. And 1206 01:03:30.119 --> 01:03:32.679 if you'd like to stay on top of our latest research, papers, 1207 01:03:32.719 --> 01:03:35.480 and events, sign up for our email list by clicking 1208 01:03:35.480 --> 01:03:36.599 the link in our show notes. 1209 01:03:37.119 --> 01:03:41.440 Thanks