Ruled by Reason

In this episode of Ruled by Reason, guest host John B. “Jack” Kirkwood, Professor of Law and the William C. Oltman Professor of Teaching Excellence at Seattle University School of Law, sits down with Daniel Francis, Assistant Professor of Law at NYU Law School. The two discuss Francis’s award-winning article, Monopolizing by Conditioning, 124 Colum. L. Rev. 1917 (2024). Professor Francis’s article won the 23rd Annual Jerry S. Cohen Memorial Fund Writing Award, presented on May 29 at AAI’s 2025 Annual Policy Conference, The State of the Antitrust Technocracy. The article demonstrates that conditional dealing should be recognized as its own, separate form of monopolistic conduct rather than squeezed into ill-fitting categories in existing monopolization law. It provides a new analytical framework for evaluating conditional dealing, including a definition of conditioning and standards for gauging its exclusionary impact, contribution to power, and procompetitive justifications. It also explains why courts’ current criteria for evaluating claims based on conditional dealing should be jettisoned.

On this episode of Ruled by Reason, AAI Senior Counsel David O. Fisher chats with legal scholar Giovanna Massarotto about what antitrust law can learn from computer science, and particularly how understanding agreement algorithms can help courts and enforcers police algorithmic price-fixing and other illegal agreements under Section 1 of the Sherman Act. The conversation centers on Massarotto’s recent paper, Detecting Algorithmic Collusion, which examines the characteristics of agreement algorithms and how they can inform the “plus factor” analysis courts use to determine the likelihood of an illegal agreement. It begins with an introduction to the concept of a "distributed system," which is any network of computers that works together to perform a common task, the Bitcoin blockchain being one notable example (5:25). It then examines the Byzantine Generals Problem, a classic story illustrating how the nodes in a distributed network can reach an agreement despite the existence of one or more unreliable nodes, which has parallels to the formation of stable cartel agreements (9:09). Massarotto explains how agreement algorithms create stability, and what they can teach courts and enforcers about how algorithmic cartels function. Specifically, she describes how agreement algorithms use digital signatures, cryptography, broadcasting, leader election, and private channels to allow stable decision-making in distributed systems (21:50). Massarotto concludes that, while broadcasting and leader election are accounted for in the existing plus-factor analysis, courts and enforcers should add the use of digital signatures, cryptography, and private channels to the list of plus factors which may indicate the existence of an illegal agreement (30:40).

On this episode of Ruled by Reason, AAI Senior Counsel David O. Fisher chats with economist Edoardo Peruzzi and antitrust scholar Christine Bartholomew about the role of Daubert challenges in antitrust suits, focusing on the increasing role of Daubert as a gatekeeping device that may be hindering private antitrust enforcement. The conversation begins with an examination of Peruzzi’s recent working paper, which finds that Daubert challenges have become more frequent in antitrust cases and that, although plaintiffs’ experts are challenged more frequently, defendants’ experts are more often excluded (6:30). Bartholomew places Peruzzi’s findings within a context of increased procedural gatekeeping in antitrust cases, including the conflation of Daubert issues with the requirements of class certification, which she argues has wrongly turned Daubert into an outcome-determinative mechanism that is hindering private antitrust enforcement (22:20). The group then discusses potential solutions to this problem—including a different admissibility standard for economic testimony, increasing the use of court-appointed experts, and delaying the consideration of admissibility until the eve of trial—but finds none of them to be feasible. (30:15). Instead, they conclude that the solution lies in a return to the language of the Daubert trilogy and its goal of liberalizing the admissibility of expert testimony, which means keeping Daubert questions separate from the standards of class certification and rejecting efforts to treat the “fit” inquiry into a strict requirement of admissibility (40:05).

On this episode of Ruled by Reason, Emily Bridges of the Food and Agriculture Impact Project has a wide-ranging discussion with antitrust scholar Peter Carstensen about the role of information exchange in restricting competition in agricultural markets, focusing on how the DOJ’s case against Agri-Stats addresses that threat. After covering the oligopolistic nature of many agricultural markets (2:45), the two do a deep dive on why information exchange can be so harmful to competition (11:04). Professor Carstensen explains how the law on information exchange has evolved and how that history has led to unfortunate ambiguity about the applicable standard (17:10). Professor Carstensen then explains why information exchange has been a particular problem in agricultural markets. He describes how recent cases in this area, including both private actions and the DOJ’s case against the information aggregator, Agri-Stats, can play an important role in clarifying and strengthening enforcement against unjustified information exchanges (27:20). The discussion concludes with some thoughts about what we can expect from current trends in litigation over illegal information exchanges (48:50). Emily Bridges is a Research Attorney for the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law, working with the Food and Agriculture Impact Project. Emily received a JD and an LL.M. in Agricultural and Food Law from the University of Arkansas School of Law. The Food and Agriculture Impact Project works with faculty, students, organizations and other educational institutions to provide policy and legal research, analysis and education, supporting the farm and food community with educational resources. Peter Carstensen is Professor Emeritus at the University of Wisconsin Law School and a Senior Fellow and Advisory Board Member at AAI. He previously served in the Antitrust Division at the Department of Justice. Professor Carstensen received the 2024 Alfred E. Kahn Award for Antitrust Achievement, presented by AAI in recognition of his outstanding contributions to the field.

In this episode of Ruled by Reason, AAI President Randy Stutz sits down with Andy Green, the Senior Advisor for Fair and Competitive Markets at the U.S. Department of Agriculture. The two discuss how Green found his way to the USDA after beginning his career as a corporate securities lawyer and developing policy expertise in the financial sector (2:46), the new role created for a competition advisor at USDA (9:25), USDA’s tools for implementing President Biden’s Executive Order on Promoting Competition (11:02), USDA’s coordination with the USPTO to strengthen patent quality and promote competition in seeds markets (29:25), USDA’s coordination with the Antitrust Division of the DOJ to enforce the unique standards of the Packers & Stockyards Act (35:57), the interplay between Sherman Act claims involving collusive price setting through intermediaries and the USDA’s pricing transparency rulemakings (41:48), and issues in food and agriculture that the next president of the United States will inherit (44:28).

In this episode of Ruled by Reason, guest host Leslie Marx, the Robert A. Bandeen Distinguished Professor of Economics at Duke University’s Fuqua School of Business, sits down with Professor Florian Ederer to discuss his award-winning article, Common Ownership, Competition, and Top Management Incentives, 131 J. Pol. Econ 1294 (2023). Professor Ederer is the Allen and Kelli Questrom Professor in Markets, Public Policy & Law at Boston University’s Questrom School of Business. His article, co-authored with Professors Miguel Antón and Mireia Giné of the IESE Business School and Martin Schmalz of the University of Oxford Saïd Business School, won the 22nd Annual Jerry S. Cohen Memorial Fund Writing Award, presented on May 22 at AAI’s 2024 Annual Policy Conference, New Thinking on the Antitrust Treatment of Collective Action: Organized Labor, Countervailing Power, and Algorithmic Price Setting. The article helps explain the existing empirical evidence on the anticompetitive effects of common ownership and meaningfully advances our understanding of the underlying theory behind the effects. Among other things, Professor Marx and Professor Ederer discuss the theoretical and empirical background behind the theory of anticompetitive effects from common ownership (5:06), the mechanism by which common ownership actually leads to anticompetitive effects, notwithstanding that top managers and their delegees (rather than investors) control firms (12:13), and the implications of these findings for enforcers, policymakers, and future research (26:09). Antitrust scholarship that is considered and selected for the Jerry S. Cohen Award reflects a concern for principles of economic justice, the dispersal of economic power, the maintenance of effective limitations upon economic power or the federal statutes designed to protect society from various forms of anticompetitive activity. Scholarship reflects an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society–values and concerns Jerry S. Cohen dedicated his life and work to fostering.

In this episode of Ruled by Reason, AAI goes international! Enforcers from the U.S., New Zealand, UK and Chile talk with Kathleen Bradish, Vice President and Director of Legal Advocacy, about their agencies’ cross-border work to stop price-fixing cartels. Leah McCoy, Juan Correa, Louise Baner, and Grant Chamberlain, whose agencies are heading up the International Competition Network’s Cartel Working Group, tell us about the important role of the CWG in advancing cross-border enforcement and give us a preview of some of CWG’s exciting new projects. These include initiatives that reflect on-going, long-term concerns of international enforcers, like improving international cooperation and addressing obstruction. Other projects address emerging challenges like the specter of algorithmic collusion and the effect of complex networks of privacy laws on evidence collection. Our conversation concludes with Chile’s and New Zealand’s perspective on how ICN, and the Cartel Working Group in particular, can aid newer and smaller agencies.

On this episode of Ruled by Reason, we explore the ramifications of the Google search case from a unique perspective—the rival search engines that have been directly affected by Google’s alleged monopolistic conduct. As the antitrust world eagerly awaits a decision this spring, AAI’s Kathleen Bradish interviews DuckDuckGo's Kamyl Bazbaz, VP of Communications and Public Affairs, about his impressions of the recently argued case. This episode unpacks how Google’s conduct, including “marathon” sized payments to OEMs to ensure default status, cuts rivals off from major access points and stymies customer choice. Bazbaz weighs in on the potential remedies that could help restore competition to search and improve customer’s online experience.

On this episode of Ruled by Reason, AAI’s Kathleen Bradish talks with Open Market’s Sandeep Vaheesan and the American Economic Liberties Project’s Erik Peinert about the pro-enforcement community’s views on the draft Merger Guidelines recently released by the FTC and DOJ. This is a wide-ranging and in-depth discussion about how the proposed changes succeed in advancing better merger enforcement, where they fall short, and what beneficial modifications could be made to the final version. Using each organization’s comments to the draft Guidelines as the jumping off point, Bradish talks with Vaheesan and Peinert about the proper role of guidelines, the importance of structural presumptions, the differences between treatment of vertical and horizontal mergers, and the viability of the efficiencies defense. The discussion concludes with thoughts about how to maximize the practical impact and the long-term viability of the Guidelines.

In this episode of Ruled by Reason, guest host Roger Noll, Professor of Economics, Emeritus, at Stanford University and AAI Advisor sits down with Erik Hovenkamp to chat about his award-winning article The Antitrust Duty to Deal in the Age of Big Tech” (131 Yale L.J. 1483 (2022)). Professor Hovenkamp is Assistant Professor at the USC Gould School of Law. His article argues that the law on exclusive dealing has failed to distinguish between “primary” and “secondary” refusals to deal. The article explains that the suffocating evidentiary requirements imposed on refusal to deal claims should not be applied to secondary refusals to deal because they do not implicate the same innovation concerns that motivate suspicion of “primary” refusal to deal claims. Instead, Hovenkamp argues that secondary refusal to deal claims should be evaluated analogously to tying or related vertical restraints. Antitrust scholarship that is considered and selected for the Jerry S. Cohen Award reflects a concern for principles of economic justice, the dispersal of economic power, the maintenance of effective limitations upon economic power or the federal statutes designed to protect society from various forms of anticompetitive activity. Scholarship reflects an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society–values and concerns Jerry S. Cohen dedicated his life and work to fostering.

On this episode of Ruled by Reason, AAI President, Diana Moss, and AAI Vice President for Legal Advocacy, Kathleen Bradish talk with leadership at the U.S. Department of Justice, Antitrust Division about the newly released merger guidelines. Moss and Bradish are joined by Susan Athey, Chief Economist for the Antitrust Division and Michael Kades, Deputy Assistant Attorney General for the Antitrust Division. This is the 7th revision of the merger guidelines since they were first released by the antitrust agencies in 1968. The revisions are notable for many reasons, not the least of which is their timing, which comes at an inflection point in antitrust enforcement and competition policy. The draft guidelines address a number of growing concerns around consolidation, including high and rising concentration, high barriers to entry, and the emergence of dominant firms and tight oligopolies in key markets. The revised guidelines also take on issues not addressed head on by previous agency guidance, such as the effect of mergers on the loss of worker bargaining power, firm growth through “serial acquisitions,” the complexities of partial ownership and control, elimination of potential entrants, and the emergence of business models, such as digital ecosystems with multisided platforms. Today’s episode unpacks these and other key takeaways from the draft merger guidelines.

On this episode of Ruled by Reason, AAI President, Diana Moss, and AAI Vice President for Legal Advocacy, Kathleen Bradish talk about competition and cloud technology markets. AAI recently issued the report: The Cloud Technology Market: Storm of Innovation or Rainy Days for Competition? Moss and Bradish unpack AAI’s analysis of a vitally important market in the digital economy, beginning with the explosive growth in cloud computing over the last two and a half decades. The report identifies the major cloud players and asks: What is the state of competition in the market? For example, is technological dynamism driving new entry? Are players jockeying for position by stealing share from each other? What does this all mean for how cloud providers compete with one another and are they any warning signs that competition may be flagging? Most important, how should antitrust enforcers and competition policymakers be thinking about promoting competition in cloud?

On this episode of Ruled by Reason, AAI Vice President for Legal Advocacy Kathleen Bradish hosts J. Wyatt Fore and David Golden of Constantine Canon to discuss their work in private antitrust enforcement under the Shipping Act. They explain how consolidation in the shipping industry has led to a serious competition problem, one that came into full view when COVID-19 exposed a dangerous lack of resilience in the supply chain. The conversation covers the role of the Federal Maritime Commission in antitrust enforcement and the role for private enforcement in working alongside the FMC to encourage greater competition in shipping. Wyatt and David discuss their own experience litigating in front of the FMC and improvements that can be made to the process to make it easier for private plaintiffs to bring meritorious claims. This episode is for anyone interested in finding out more about competition in an industry that touches on nearly every aspect of our lives. After listening, head over to the AAI website to read Wyatt and Kathleen’s white paper “Competition Enforcement, Private Actions and the Shipping Act” for a deeper dive on the issues raised here.

On this episode of Ruled by Reason, AAI President Diana Moss hosts two leading healthcare competition experts. Laura Alexander is Director of Markets and Competition Policy at the Washington Center for Equitable Growth and Brent Fulton is Associate Research Professor of Health Economics and Policy at the University of California at Berkeley and Associate Director of the Petris Center on Health Care Markets and Consumer Welfare. They take up an increasingly troubling issue in healthcare competition: growing private equity ownership of physician practices. The conversation previews major takeaways from a soon to be released study between AAI, UC Berkeley, and WCEG, funded by a grant from the Arnold Foundation. Moss, Alexander, and Fulton discuss the penetration of private equity ownership in the U.S. across a variety of physician practice areas, growth in market share and concentration, and effects on prices. This episode is a must-listen for those following consolidation in critical healthcare markets and its implications for prices, healthcare costs, antitrust enforcement and healthcare policy.

On this episode of Ruled by Reason, AAI President Diana Moss hosts two leading healthcare competition experts. Laura Alexander is Director of Markets and Competition Policy at the Washington Center for Equitable Growth and Brent Fulton is Associate Research Professor of Health Economics and Policy at the University of California at Berkeley and Associate Director of the Petris Center on Health Care Markets and Consumer Welfare. They take up an increasingly troubling issue in healthcare competition: growing private equity ownership of physician practices. The conversation previews major takeaways from a soon to be released study between AAI, UC Berkeley, and WCEG, funded by a grant from the Arnold Foundation. Moss, Alexander, and Fulton discuss the penetration of private equity ownership in the U.S. across a variety of physician practice areas, growth in market share and concentration, and effects on prices. This episode is a must-listen for those following consolidation in critical healthcare markets and its implications for prices, healthcare costs, antitrust enforcement and healthcare policy.

On this episode of Ruled by Reason, AAI President Diana Moss hosts David Smith, CEO of Associated Wholesale Grocers, and Chris Jones, SVP of Government Relations and Counsel for the National Grocers Association. They take up a front-line issue: consolidation in the retail grocery supply chain and the threat it poses to smaller independent grocers. The accumulation of market power has spurred an ongoing cycle of bulking up to gain bargaining leverage over suppliers and customers, with significant effects on smaller players in the supply chain, including farmers and ranchers, small food brands, regional dairy and protein processors, food wholesalers, and independent grocers. The conversation focuses on how powerful retail grocers engage in various methods to exercise their buyer power, often at the expense of independent grocers; what enforcement and policy tools are available to combat it; and what further consolidation in retail grocery means for competition and security of the food supply chain.

In this podcast episode, AAI President Diana Moss sits down with two airline pilots, Kelly Ison and Eric McEldowney, to talk about the effect of airline consolidation on labor workforces. There have been almost 20 airline mergers involving U.S. carriers in the last two decades, six of which have involved mergers of major legacy and low-cost carriers. Today, the sector is dominated by a tight oligopoly of carriers. But consolidation continues, with merger proposals such as JetBlue and Spirit, joint ventures like the Northeast Alliance codeshare, and increasing complexity in the international immunized airline alliances. While the effect of consolidation on consumers remains important, not enough has been said about effects on labor. Today’s episode fills this gap. Moss, Ison, and McEldowney do a deep dive into airline consolidation and how it affects pilots. Their discussion ranges from changes in the industry since airline deregulation in the late 1970s, to consolidation and loss of competition, to policy proposals for promoting competition in airlines for the benefit of airline labor forces.

In this podcast episode, AAI President Diana Moss and Steven Salop, Professor Emeritus at Georgetown Law, take stock of the Biden antitrust agencies’ merger enforcement record. The antitrust chiefs at the Federal Trade Commission and U.S. Department of Justice Antitrust Division were chosen specifically for their commitment to invigorating antitrust enforcement. As we head into the third year of the Biden administration, now is a good time to assess how the agencies are doing on merger control. Vigorous merger enforcement under Clayton Act Section 7 acts to prevent the emergence of oligopolies and dominant firms, serving as a first line of defense against the accumulation of market power that harms consumers and workers. Moss and Salop cover the ground on two major topics. They first unpack the recently released 2021 merger statistics. While one year of data does not reveal much about longer-term trends in merger enforcement under the Biden agencies, it does shed light on what to watch for moving forward. Their conversation then turns to issue spotting, or what is likely to unfold for merger control at the agencies based on what we have seen under the Biden enforcers thus far.

In this podcast episode, AAI’s former Vice President of Legal Advocacy Randy Stutz talks with Howard Law Professor Andy Gavil and George Washington Law Professor Bill Kovacic about institutional dynamics that can affect efforts to shift policy and initiate reform from within the federal antitrust agencies. The three discuss lessons from previous efforts to implement significant policy reforms in the 1970s and 1980s (4:05), the challenges of effectively exercising prosecutorial discretion in the face of limited agency resources (13:35), leveraging the FTC’s recent policy statement on Section 5 Unfair Methods of Competition authority (23:35), practical considerations in revising merger guidelines that have been accepted by courts and enshrined in case law (38:55), and whether and under what circumstances agency leaders should be willing to run the risk of losing big cases (52:00).

On this 25 podcast episode, AAI President Diana Moss and enforcement experts, Stephen Calkins and Benjamin Elga, unpack antitrust enforcement in markets that raise issues around social well-being, human health, and vulnerable consumers and workers. Antitrust is designed to deter and remediate harmful, anticompetitive mergers and conduct while remaining “agnostic” to the markets in which competitive concerns arise. In applying the consumer welfare standard, antitrust enforcement addresses adverse price, quality, and innovation effects and, implicitly, the distribution of wealth between firms and consumers. However, there are some markets where higher prices might beneficially reduce demand for products or services that have adverse effects on society or human health, such as cigarettes, sugar, or violent video games. Similarly, antitrust could sometimes be more aggressive in order to protect vulnerable consumer groups, including lifeline wireless service, or prison inmate calling services. This episode unpacks this issue from both the public and private enforcement perspective, asking how enforcers think about cases involving such markets and what questions they raise.