Why Trust in Antitrust? with Sanjukta Paul & Marshall Steinbaum

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On the 15th of last month, President Biden’s choice to chair the Federal Trade Commission was confirmed by the Senate in a surprisingly bipartisan vote, with 21 GOP Senators joining Biden’s Democrats. Lina Khan is a noted antitrust reformer, who was a member of the somewhat controversial Open Markets think tank, which led lobbying efforts again “Big Tech” until it was shuttered by Google in 2017. Khan’s 2017 article, “Amazon’s Antitrust Paradox,” is arguably the founding document of the New Brandeis Movement, which aims to return antitrust enforcement to its antimonopoly roots through tenets Khan laid out in 2018.

A week after Khan’s confirmation, the Supreme Court handed down a rare unanimous decision in NCAA v. Alston which threatens the NCAA’s monopoly, long treated by the courts as protected under the consumer welfare standard of antitrust which New Brandeisians dispute. Though antitrust and antimonopoly have conventionally be associated with progressive movements, the concurring NCAA majority opinions were authored by two of the Court’s most conservative justices, both Trump appointees.

On the same day the NCAA decision was handed down, the House Judiciary Committee finalized a raft of legislation presumed to be targeting the breakup of “Big Tech” companies, particularly Amazon, Facebook, and Google. These bills – among them, the Ending Platform Monopolies Act – have bipartisan co-sponsors and thus are presumed to have a strong chance of passage, though there will still be heated debate.

In short, antitrust is positioning itself as one of the most important issues of 2021 and likely beyond, which makes it a good time to talk about the history of the antitrust movement, which began during Mark Twain’s life and with which he had a complicated relationship, as he was, at various times in his career, both an advocate for and an advocate against monopolies. The host of The American Vandal Podcast, Matt Seybold, has written about Twain’s ambivalent position on antitrust. In this episode he engages with two interdisciplinary interlocutors who are experts in both the history and contemporary circumstances.

Sanjukta Paul is an Assistant Professor of Law & Romano Stancroff Research Scholar at Wayne State University. She has also been a Coker Fellow at Yale Law School, a visiting professor at University of Minnesota Law School, and a research & clinical teaching fellow at UCLA Law School. Her book, Solidarity in The Shadow of Antitrust, is forthcoming from Cambridge University Press, and you can find links to many of her publications, including those discussed during this episode, in the bibliography below.

Marshall Steinbaum is an Assistant Professor of Economics at University of Utah and Senior Fellow in Higher Education Finance at the Jain Family Institute. He was previously a Research Director & Fellow at the Roosevelt Institute and a Research Economist at the Washington Center for Equitable Growth. He has published on antitrust and numerous other subjects. For some representative samples, see the bibliography below.

Episode Bibliography:

Robert F. Burk, The Corporate State & The Broker State (Harvard UP, 1990)

Brian Callaci, “Control Without Responsibility: The Legal Creation of Franchising, 1960-1980” (Enterprise & Society, 2021)

Ronald Coase, “The Nature of the Firm” (Economica, November 1937)

William E. Forbath, “The Ambiguities of Free Labor: Labor & The Law in The Gilded Age” (Wisconsin Law Review, 1985)

Josh Hawley, The Tyranny of Big Tech (Regnery, 2021)

Michael Jensen & William Meckling, “Theory of The Firm: Managerial Behavior, Agency Costs, & Ownership Structure” (Journal of Financial Economics, 1976)

Lina Khan, “Amazon’s Antitrust Paradox” (Yale Law Journal, 2017)

Amy Klobuchar, Antitrust: Taking Monopoly Power From The Gilded Age To The Digital Age (Penguin, 2021)

Naomi Lamoreaux, “The Problem of Bigness: From Standard Oil to Google” (Journal of Economic Perspectives, 2019)

Naomi Lamoreaux, “Industrial Organization & Market Behavior: The Great Merger Movement in American Industry” (Journal of Economic History, March 1980)

Dana Mattioli, “Congress’s Case To Break Up Amazon” (The Journal, June 2021)

Sanjukta Paul, “Reconsidering Judicial Supremacy in Antitrust” (Yale Law Journal, 2021)

Sanjukta Paul, “Antitrust as Allocator of Coordination Rights” (UCLA Law Review, 2020)

Sanjukta Paul, “Fissuring & The Firm Exemption” (Law & Contemporary Problems, 2019)

Sanjukta Paul, “The Double Standard of Antitrust Law” (The American Prospect, June 2019)

Sanjukta Paul, “The Enduring Ambiguities of Antitrust Liability for Worker Collective Action” (Loyola University Chicago Law Journal, 2016)

Matt Seybold, “Robinhood, r/WallStreetBets, Who’s Yellen Now, & The GameStop-ification of Finance with Michelle Chihara, Anna Kornbluh, & Leigh Claire La Berge” (American Vandal Podcast, February 2021)

Matt Seybold, “Mark Twain’s Portfolio: Hell-Hound Rogers, Anaconda Copper, & The Spider Aristocracy of Finance” (MarkTwainStudies.org, June 2019)

Matt Seybold, “Barnum Presidents & Benevolent Monopolists: Mark Twain, Amazon, & The Futility of Antitrust” (Los Angeles Review of Books, August 2017)

Matt Seybold, “The Neoclassical Twain: The Zombie Economics of Col. Sellers” (Mark Twain Annual, 2015)

Marshall Steinbaum, “Common Ownership & The Corporate Governance Channel for Employer Power in Labor Markets” (Antitrust Bulletin, January 2021)

Marshall Steinbaum, “The Effective Competition Standard: A New Standard For Antitrust” (University of Chicago Law Review, 2020)

Marshall Steinbaum, “Antitrust, The Gig Economy, & Labor Market Power” (Law & Contemporary Problems, 2019)

Marshall Steinbaum, “Uber’s Antitrust Problem” (The American Prospect, May 2016)

E. P. Thompson, “The Moral Economy of the English Crowd in the 18th Century” (Past & Present, February 1971)

Oliver Williamson, “The Economics of Organization: The Transaction Cost Approach” (American Journal of Sociology, November 1981)

Charles M. Yablon, “The Historical Race Competition for Corporate Charters & the Rise & Decline of New Jersey: 1880-1910” (Journal of Corporation Law, 2007)