In this episode of Ruled by Reason, AAI Vice President and Director of Legal Advocacy Kathleen Bradish talks with Ron Schnell, a computer scientist, startup entrepreneur, and former general manager of the Technical Committee created to monitor Microsoft's compliance with the U.S. v. Microsoft consent decrees. Their conversation explores what the antitrust bar still hasn't fully absorbed from one of the most consequential post-remedy enforcement undertakings in U.S. antitrust history. Three themes run through the conversation: the need for early and deep technical engagement in remedy implementation; the informational asymmetry between enforcer and defendant that monitors must work to overcome; and the predictable incentive problems that shape how companies respond to conduct obligations.

In this episode of Ruled by Reason, AAI VP and Director of Legal Advocacy Kathleen Bradish speaks with Professor Jennifer Sturiale about how her recent work attempts to address the persistent gap between public concern over monopolies and the limits of current Section 2 enforcement. Sturiale notes at the outset that her work originates in a fundament, ongoing issue: while antitrust law is, by its nature, deliberately narrow—designed not to punish firms that acquire monopoly power through "superior business acumen" or historic accident—this leaves significant harms unaddressed. In her view, monopoly power is harmful regardless of how it is acquired, not only because of price, output, or quality effects, but also because monopolists amass outsized resources that can distort politics, media, litigation, and democratic processes more broadly. (2:37)

Sturiale then describes how her recent scholarship explores an unconventional alternative: using federal or state eminent domain powers—what she calls an "extra-antitrust" approach—to address market concentration. (5:49) Drawing on Supreme Court takings jurisprudence, particularly Hawaii Housing Authority v. Midkiff, she explains that the Court has interpreted "public use" broadly to include correcting economic distortions such as oligopoly. (9:12) She argues that this precedent suggests governments could, in principle, condemn property to break up monopolized or highly concentrated markets, provided just compensation is paid. Her illustrative example involves the highly concentrated dialysis market, where states could use eminent domain to enable new entry and competition without proving exclusionary conduct under traditional antitrust standards. (13:45)

A central advantage of this approach, Sturiale argues, is that it bypasses many of the evidentiary burdens that make Section 2 cases slow, costly, and uncertain—such as market definition and proof of anticompetitive conduct. (29:35) Legislatures, rather than courts alone, could determine that a market is excessively concentrated based on hearings, expert testimony, and consumer experience. Compensation requirements would serve as an important limiting principle, both restraining overuse of eminent domain and preserving incentives to innovate, since firms could be compensated for lost profits rather than punished through treble damages. (23:55)

At the same time, Sturiale is clear that her proposal is both a serious thought experiment and a critique. Political will, lobbying by powerful firms, valuation difficulties, and constitutional constraints—especially in national or IP-driven markets—pose real obstacles. (32:66) Still, she suggests that state-level experimentation in local markets could demonstrate feasibility and help democratize responses to market power. (46:35) Ultimately, the discussion reframes monopolization remedies not as solely an antitrust problem, but as part of a broader set of tools available to democratic governments confronting durable concentration in modern markets.

In this episode of Ruled by Reason, AAI President Randy Stutz talks with antitrust thought leader Michael Kades about the latest developments at the intersection of federal, state and private antitrust enforcement.

The conversation begins with a discussion of the strengths and weaknesses of federal, state and private enforcers in the current enforcement climate (5:11). It then moves to the promise of "public entity litigation," in which private counsel represent federal, state or local government entities in bringing enforcement actions they lack the resources to bring on their own (8:45).

Stutz and Kades then discuss strategic complexities and possible "force multipliers" when private counsel represent a governmental agency (11:31), including with respect to bringing cases where the agency's main priority is to develop antitrust doctrine or to shift risk when high-reward cases require large upfront resource commitments (13:33). They also discuss federal claims under Section 4A of the Clayton Act, which allows the government to recover treble damages in its capacity as an injured purchaser, and why such claims may be under-utilized (16:10).

The conversation then shifts to merger enforcement, with a focus on the role of states and private plaintiffs (20:22). Among other things, Kades identifies categories of mergers where states may have an added advantage in merger enforcement (25:14). He also discusses how policy preferences and subject-matter emphases at the federal level can spur state and private enforcers to fill gaps in federal attention, though he cautions against trying to deduce policy preferences and attention levels solely from counting statistics (29:48).

The conversation concludes with a discussion of allegations that federal enforcement has become "politicized" during the Biden and Trump administrations, and the role of the states in diffusing certain criticisms (33:13).

On this episode of Ruled by Reason, AAI Senior Counsel David O. Fisher talks with leading economist Ioana Marinescu about the theoretical frameworks underpinning labor monopsony and how they apply in various antitrust law and policy contexts.

The conversation centers on Marinescu's recent paper with coauthor José Azar, Monopsony Power in the Labor Market: From Theory to Policy, which lays out the theoretical frameworks underlying monopsony power in labor markets and develops a theory-informed discussion of antitrust law and policy. The conversation begins with an examination of Marinescu's background and her research on labor markets and monopsony power (3:15). She then explains the three main theoretical frameworks underpinning labor monopsony as reflected in the literature: oligopsony, differentiated jobs, and search-and-matching frictions (10:04).

The conversation then moves to a discussion of how economists determine which models to apply in which context (18:47). In the enforcement context, Marinescu examines the usefulness of each framework in the context of enforcing against no-poach and wage fixing agreements (21:24), and underscores the significance of a 2023 study by Tania Babina and co-authors which finds that antitrust enforcement against anti-competitive conduct tends to increase overall employment and business formation (26:48). Marinescu also discusses merger enforcement, and how each of the three theoretical frameworks apply in the merger context as reflected in the 2023 Merger Guidelines (30:53). Finally, she examines the theoretical work supporting the FTC's Noncompete Rule, and whether it supports the agency's current approach of addressing noncompete clauses on a case-by-case basis (35:24).

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 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.