2024 Freedom of Thought Conference: Luncheon Fireside Chat with Hon. Andrew Ferguson and Hon. Paul B. Matey

Featuring:

Hon. Andrew Ferguson, Commissioner, Federal Trade Commission
Moderator: Hon. Paul B. Matey, U.S. Court of Appeals, Third Circuit

Episode Transcript

(00:08):
All right, well, welcome toour lunchtime program. I'm Alita Cast,
Vice President Strategic Initiatives at the FederalSociety and director of the Freedom of Thought
Project. This program really needs notitle. It really is just kind of
It just completely rises on the namesof the people who are going to be

(00:29):
having this conversation. Is Judge PaulMade interviewing recently confirmed Federal Trade Commissioner Andrew
Ferguson. That's pretty much all youneed to know. I will say just
a couple words about Judge Madie,who of course serves on the Third Circuit
Court of Appeals and is a greatfriend to the Freedom of Thought Project,

(00:51):
and in his capacity on the ThirdCircuit, has had the opportunity to write
some really thoughtful, compelling opinions anda sense a dressing many of the Freedom
of Thought themes. On the otherhand, this is a gig that comes
with living in New Jersey, soyou know, you can't have everything.
But I will just turn this overto Judge Mayde and Andrew Ferguson. Flora's

(01:15):
yours. Well, thanks Alita forthat kind and welcome introduction to delay to
be here with everyone today. Normally, when I am asked to suffer through

(01:37):
five hours of delay to Sello toarrive in Washington for nearly one hundred degree
heat at the end of a weekin June, the answer would be no.
Oh. But being able to bepart of the Freedom of Thought Initiative
today and on so many other occasionsis an absolute privilege. So I want

(01:57):
to thank Alita and the Federal Societyfor this continued commitment to innovative and diverse
programming that allows us to debate topicsof consequence and significance. It's also a
pleasure to be with my friend,Commissioner Ferguson. It's a pleasure to sit
with you again. The last timewe sat together was in your office in

(02:20):
the United States Senate after the UnitedStates Senate had just finished saying nasty things
about me. So this is muchmuch more enjoyable. Thank you for taking
the time to speak with us today. So let's start a little bit with
your biography. How did you windup being in the seat that you are
today? Is this something you plannedor did it just sort of happen?

(02:44):
Thanks Judge made before answering just acouple of things first. I'm also just
really honored to be here and alite, I'm super grateful for the invitation.
For most lawyers, Conservative lawyers myage, FEDSC has been sort of a
north star in our development as lawyersand in our ideological development. And I

(03:06):
think that the Freedom of Thought projectis one of the most exciting things FEDSC
has going for it right now,and one of the most exciting things that's
had going for it in a while. So I'm just really pleased to be
part of this. And then,of course the customary government caveat. I'm
here in my individual capacity. Ido not speak for the commission. I
do not speak for my fellow commissioners. Okay that aside. Uh No,

(03:30):
I didn't plan this. Uh So. I went to law school, took
h Anti trust with Tom Knockbar.Actually I learned a couple of weeks ago.
I was in the same class asone of my the lawyers that works
works for like the exact like,you know, a couple of seats apart
from one of the lawyers that worksfor me. Now, I really liked
it was super interesting. Anti trustlaw is is sort of you know,

(03:52):
within its own silo. It's veryinteresting. Went and clerked on the d
C circuit, which has had somevery interesting anti trust cases in its day,
although we didn't have any then.And then I went to the private
sector where I practiced anti trust law, representing or as my mother used to
explain to people when she told himwhat I did, I was a pro
trust lawyer representing large commercial interests asthey attempted to comply with the anti trust

(04:19):
laws. Uh. And from thereI went to Bancroft and was the only
you know, I was at Covingtonpractice anti trust law for about a year
and a half, and then wentto Bancroft Paul Clements, a Pellet firm
where I went not to do anyanti trust law, but I was the

(04:40):
only lawyer who had ever had ontheir resume having practiced anti trust law.
So I was often introduced by oneof our bosses to clients as the firm's
anti trust expert and did some likeyou know, state bar malpractice research to
make sure that I wasn't gonna getin trouble for being presented that way.
And then clerk for Justice Thomas andthat was sort of the like first sort

(05:03):
of post law school major ideological formationexperience for me. I clerked for Justice
Thomas in ot twenty sixteen, whichwas an election year, which was I
think a formative ideological year for alot of us, even if you weren't
clerking on the court. It wasthe term Justice Gorsich arrived. We had

(05:24):
a big any trust case, butit was dismissed as improvidently granted when arguments
raised in the brief are very differentthan arguments raised in the certain petition.
But that was my first sort ofexperience with politics in the very general sense,
because you know, people who getto the court get there, you
know, in very large part becauseof their own abilities and their experiences,

(05:46):
but it's the product of a politicalsystem. All of us have been around
to know that politics produces the justicesbecause they have to go through the political
branch to get there. And ithappened while I was clerking, uh And
so that was sort of my firsttaste of politics, was being on an
a justice court and then a ninejustice court, which felt very different by

(06:09):
the time the ninth justice got there. And then I went to Sidley and
practiced anty trust law again. Iwent to Sidley in order to practice anti
trust law and was on the giantlitigation team for the at and T time
Warner merger, which in my view, the lawyers executed very well, and
then the business is not so well. The merged firm collapsed almost immediately after

(06:31):
the merger. But that was youknow that I spent like seven uninterrupted months
just working on that, and itwas to date, it was the biggest
vertical merger challenge to that date,was the biggest vertical merger challenge in US
history. And so I spent alot of time with any trust. But

(06:53):
you know, I had been raisedin a family that wasn't very political except
for life issues and guns, uhin the Shenandoah Valley. And by the
time I'd I'd finished clerking on thecourt, had come of the view that
the two things in politics that Isort of cared about the most were,

(07:15):
you know, bringing an end toabortion and protecting the right to keep in
bare arms. And both of thosehad become uniquely judicial questions. Uh,
the former because of a judicial decision, the latter because of other jugitous judicial
you know, decisions trying to protecta written right. And so, uh,
long story short, when Justice Kennedyretired, I took a job with

(07:39):
now famous Twitter personality Mike Davis,uh, helping run Judge Kavanaugh's confirmation,
and that was on the Senate JudiciaryCommittee, and I just I thought I
was going back to Sidley. Ithought I was going to pick up being
an anti trust litigator and deal lawyeragain, and and and just didn't leave
for several years. And in thosecouple of years, we had two impeachments,

(08:01):
the confirmation of Bill Barr, theconfirmation of Justice Barrett and Covid and
George Floyd. And that was sortof the like crucible. It formed a
lot of my sort of big,big views about politics and uh. And
then was Solicitener General of Virginia fortwo and a half years, and this
stacancy opened up, and it seemedexciting for reasons I think we're going to

(08:24):
get into a little bit. Andthen went through the same or not the
same, but a similar, longdrawn out confirmation process like the one that
you and others went through, althoughmine much less acrimonious, which is also
an interesting thing about anti trust today. But no, this wasn't this wasn't
planned at all. And if youhad asked me when I was, you

(08:46):
know, leaving law school, ifI would a have ever you know,
been up for something like this orbe taken it. If offered, I
almost certain would have said, Now, you represented clients before the Commission,
right, So how what was thatlike and what what lessons did you did
you bring from that when you startedmoving towards this position. Good question.
So you know, for any ofyou all who have practiced in front of

(09:09):
the Commission, or frankly, anyof you all who have practiced in front
of any federal enforcer in the privatesector defending clients, you end up,
I think, sort of naturally andunavoidably at least adopting in some sense the
attitudes of your clients toward the enforcers, which are you know, staff is
making us come in, It's makingus turn over the you know, the
crown jewels of the company to tryto get them not to enforce the law.

(09:31):
This is very aggravating. And ifyou're at the level that I was,
I'm in my office at three o'clockat night reading hot dogs before we
send them over to FTC staff.I can't believe they're doing us, doing
this us. This is this istyranny, unbounded. You know, my
views on that have changed substantially,But my experience was going in basically pitching

(09:54):
staff not to enforce or to stopinvestigating. And I always sort of thought
that this was like a weird dynamicwhere, especially because the agency has what
I will i'll call for shorthand itsown internal judicial system where it both decides
whether to enforce the law and thendecides whether the enforcement decision was proper because

(10:15):
it sits as the judge as well. But I always thought this was very
strange, where you go in andbasically pitch staff not to enforce it.
And I always felt a lot morecomfortable doing it in front of judges because
the judges are at least ostensibly neutralas to the parties. They're bounded by
rules, whereas the staffs often seemedlike they weren't bounded by anything, and
it always seemed like, you know, it was sort of just kind of

(10:37):
shouting into the void. I understandthat's not true. I now really understand
that's not true. The staff.The staff take their jobs incredibly seriously and
don't They don't like losing enforcement actions, and they tend to be more circumspect
about their recommendations than I would havethought from the outside. But then again,
I was representing clients who thought theFTC was always out to get them,
and you know, you sort ofadopt those attitudes over time. So

(11:00):
you're an accidental anti trust lawyer whosort of wanders into politics through chance,
and you don't have the you know, you have skepticism regarding the commission's mission
because of the client you're representing.So then why why answer this call?
So I would I would say thatI was an anti trust lawyer that accidentally
wandered into politics. I mean whenI left law school, I sort of

(11:22):
had envisioned like a you know,a career doing anti trust mostly litigation,
because you know, the clerkships andstuff had sort of trained me for that.
But anti trust interested as far asbig law practice goes, anti trust
sort of interests me, interested memore than than others. And I kind
of wandered into politics. And youknow, I, like a lot of

(11:43):
I think young conservatively inclined lawyers comingout of law school sort of had the
you know, a deep natural suspicionof government power, which I still have,
but as I think is especially true, you know, with a lot
of of like young lawyers full ofvim and vigor, my you know,

(12:03):
my suspicion of government power I sortof wanted to carry to its logical extent,
which was like presumptive suspicion not justof the government exercising power, but
even having institutions for its exercise.The Commission was one of them, of
course, you know, coming upwithin the FEDSOC world. You know,
one of the first cases I learnedabout as a as a for sure law
student was Humphrey's Executor and why itwas wrong before I learned the doctrine.

(12:28):
Uh and you know, that wasthe FTC. And so you know that
my basically my introduction as a younglaw student the FTC was was Humphrey's Executor
and uh and so you know,with that in mind, it would be
a little odd that that I wouldhave taken a job on the Commission.

(12:50):
I think a couple of things.And also with you know, with all
respects of the anti trust lawyers inthe room, Interruest is kind of boring.
It's very very thick and involves lotsof like graphs. Its litigation is
unbelievably document heavy. I mean itwas tens and tens of millions of pages

(13:11):
in eighte and t time Warner.You know, all of the features that
young lawyers. You know, youngup and coming lawyers hate about big litigation,
and he trust just kind of hasit in spades, almost worse than
any other except for maybe insurance litigation. And so combine sort of a natural
suspicion of government power with you know, anti trust not being the most interesting

(13:31):
thing in the world, it's weirdto wind up here. A couple of
things happened, I think out inthe world and in my own life.
The first was I'm just gonna callit twenty twenty. A lot happened in
twenty twenty. Sort of, Ithink more happened to the United States in
twenty twenty. It's at least inthe running is the top five most eventful

(13:52):
years in American history. And Iworking on the Hill. It was the
first job I'd ever had where Iinteracted with sort of big business interests on
the other side of the ledger.All my interactions with sort of like giant
businesses had been as their lawyer.And you know, you sort of approach

(14:18):
that Barry Workman like, like,this person is paying me, they have
these interests, They're paying me tovindicate these interests. I'm not going to
think about this sort of as ageneral or systemic question. But I get
a paycheck, and I do thisthing, and as long as it's not
violating sort of my conscience, offI go. And then working on the
Hill the whole point, and workingfor Leader McConnell in particular, because leadership

(14:39):
staffs are sort of you know,kind of see the whole picture in so
far as anyone on the Hill does, was the first time I spent sort
of meaningfully thinking about questions of governmentpower and private power, apart from having,
you know, worked for large aggregationsof private power. And I started
really thinking about this in like twentyeighteen, twenty nineteen, and then this

(15:00):
sort of crashes into twenty twenty,and I think one of my formative experiences
that sort of began both to changemy views on aggregations of private power and
the sort of like their moral positionand on government in relation to that private

(15:22):
power were the George Floyd riots.I gave presentations and took calls with CEOs
and general counsels from giant firms whowere calling to pitch me on getting rid
of qualified immunity or defunding police departments. And I would take these calls and
hang up and go, what inthe world does this have to do with

(15:46):
widget making? I thought that thewhole system under which we operated was we
grant corporations, you know, bigbusiness interests, tremendous latitude, big liability
shields, in order to maximize theefficiency with which they produced the thing we've
asked them to produce, or whichthey've told us they're good at producing widgets?
For sure, Why am I gettingcalls about qualified immunity from the Chamber

(16:08):
of Commerce? What do they A? What do they know about it?
And B? How on earth doesthis have anything to do with what we've
sort of asked the business community todo. And then you know, I
gave presentations on why businesses shouldn't destroythe economy of Georgia because of its voting

(16:30):
laws, and I would end thesepresentations and go, something is either broken
or I have been wrong about thedeal that the American system was supposed to
have struck with businesses, which Ihad always understood to be private. People
will do their private things. They'lldo them sometimes in groups. We'll call

(16:52):
those groups corporations, and we'll letthem get together and give them all sorts
of basically privileges because we need themto do the thing we set them up
to do. We need them tomake widgets, we need them to service
the widgets. And then I startedgetting these calls where these big companies are
exercising tremendous or using economic power toachieve social and political objectives totally unrelated to

(17:15):
the widget making, and I went, something is either broken and it needs
to be fixed, or the systemmay never have worked this way, and
I just had it wrong the wholetime. And this was sort of my
first experience where I began to wonderif the sort of cosmology I had developed
where government power and its exercise wasalmost always bad or at least entitled to

(17:38):
substantial suspicion, and the use ofprivate power aggregated private power was at worst
morally neutral and probably morally praiseworthy,might not be correct, and that there
might be some circumstances in which societyshould want to deploy the government to address
abusive uses of private power. Andthen when I became SG this became like

(18:03):
a very real thing because I startedto realize the political reality which I think
is healthy, good, appropriate,and normal, which is Americans are as
suspicious of big business as they areof big government. I mean, I'm
an Appalachian, I'm a fighting Scott'sIrish. You know, we sort of
have this preternaturally. But I thinkmost Americans share this instinct, which is,

(18:26):
I don't want to be told whatto do by Pennsylvania Avenue or by
Wall Street or by K Street.And at the end of the day,
in so far as any of themare able to sort of coerce me,
I don't like it. Now.That is not to say that I think,
you know, private aggregated power isthe same as government power. It's

(18:47):
not because government Google can't drive atank to my house and the government can,
and that is totally that makes itmeaningfully different. But the way that
I had always understood the world waswe have two categories of power, government
power, which we should always besuspicious of at least or condemn it,
and private power, which is justthe result of market forces and wish.

(19:07):
As long as the markets are operatingthe results they produce, we should just
sort of accept. A. That'snot how most Americans think. B It's
not how Americans have ever thought.The sort of anti monopoly impulse goes back
to the founding and see I thinkas a conservative focuses more on like pragmatism
than dogmatism. I think the experienceof the last couple of decades have taught

(19:30):
that treating the world that way doesn'tjust doesn't work. I saw an article
titled terrifyingly recently, the coming Conservativeassault on Capitalism. Assuming you don't agree
that that's the work of the Commission, which what is the work of the

(19:55):
Commission in the twenty first century?That's a good question. So sometimes I
do think that the Commission, likeall organs of government. I mean,
look, the public choice folks areright. All institutions want to maximize their
power within whatever domain they operate.That's true of businesses, it's true of

(20:17):
the government, and so you know, I do think that government often does,
you know, spill the banks ofthe authority it should exercise, and
can be very dangerous to markets.Although again I say markets, what I
mean is, I think the wholepoint of society is to promote human flourishing.
I think markets assist in that.But I do not think markets are

(20:40):
kind of an end and sort ofthe like Shibballeth chant of markets markets,
markets, I think sort of conflatesmeans and ends. But you know,
that's a different question, and Ithink that the FTC has, even since
I've been on the Commission, donethings quite unlawfully. I mean, the
noncompete rule, in my view,is an example. There are lots of

(21:00):
good arguments for regulating non competes.Every state in the country regulates them extensively.
But you know, as I saidin my dissent, I think that
the Commission doing this is just agross arrogation of power. So it definitely
happens government infringes on individual liberty allthe time. That's inconsistent human flurishing.
But I do think the Commission hasa role in the twenty first century,

(21:23):
an important role, and I don'tthink it's dissimilar to what it the role
it has played before, as longas it sort of remains within the channels
of authority that we the people havegiven to it through our elective representatives,
which is protecting Americans and the marketsin which we all have to participate from
private aggregations of power that abuse thosemarket channels and deny us of the opportunity

(21:48):
to flourish. I'll give an examplethat's really meaningful to me and is sort
of in the Commissions Baileywick, andI think the Commission is generally pretty good
at it. I don't know howmany folks here are rural. I imagine
a lot more rural raised folks herethan at ACS, for example. But
you know, I grew up ina small town that had only one hospital

(22:10):
anywhere near around and not that manyphysician practices. There is overwhelming evidence that
when rural hospitals get bought up byconglomerates, prices go up, and it
is very difficult for rural price ofhealth care goes up, and it's very
difficult for rural people to sort ofparticipate in a market where you have to
drive a long way to find competitors, and if you're sick, that can

(22:33):
be that can be very difficult.The Commission has been safeguarding the healthcare markets
by enforcing the anti trust laws withregard to hospital mergers for decades and is
really good at it. It's oneof the best things the Commission does.
And it was really good at itfor decades, then it got bad at
it, and then Republican Commissioners basicallytold the FTC revisit our strategy, revisit

(22:55):
strategy, and they got really goodat it. Again, but this is
this is an example. It's amarket we all have to participate in,
like you don't have a choice.All of us are going to go to
the hospital. All of us aregoing to go to physicians practices at some
point in our lives. You know, it's overstated, obviously, but you
know one of the refrains as statesin the federal government have tried to sort
of confront the challenge the big techis, you know, build your own
internet, You can't build your ownhospital. We all have to engage in

(23:18):
this. And if private aggregations ofpower can combine to extract monopoly rents from
grandmothers who have to go in fordialysis treatments or when you have to take
your five year old child in foremergency surgery, that isn't a system any
of us should want to live in, even if it's the result of a

(23:40):
series of private choices. And soI think that the Commission's chief job is
to protect Americans from the from theeffects of over concentration, and not because
of their market effects, but becausethe whole goal of society is human flourishing.
And if we allow over concentration,we're basic saying we are going to

(24:00):
allow these aggregations of power to flourishat the expense of the individual and of
families. And I think that that'sthe Commission's chief job is, basically to
say, is to sort of fulfillthe American promise of no the unit that
we care about in America, ourfamilies and individuals and promoting their flourishing.
And we are not going to evenif it's the result of a series of

(24:22):
private choices. We aren't going toallow private choices to deprive Americans of the
flourishing, which was the whole pointof the Constitutional Compact, and the criticisms
of the Mission of the Commission acertainly nothing new. Coolidge talked about this
back in nineteen twenty five that beingthe business policeman is never going to be
particularly popular. So let's talk alittle bit about the mechanisms that the Commission

(24:48):
uses to fulfill that police function.You know, you're an antitrust lawyer recovering,
right, so you might know thatpetitions of the Clayton Act sit somewhat
uncomfortably with the doctrine of textualism.Herbert hoffin Camp had recently noted the tendency

(25:10):
of courts to ignore the statutory textaltogether, or to use the language as
stating no more than a general principleof free enterprise rather than a set of
rules governing distinct practices. What doyou make of that? So I said
this in a different interview recently,but I'm gonna I think it'll land even
better here. But I'm going tokeep beating the strom, which is I

(25:33):
am not a policy maker, andthe commissioners are not and should not think
of themselves as policy makers. I'ma law enforcer, which means my ultimate
job is interpreting texts. I havean added It's different than being a judge
because I have an added layer ofI have to decide how to allocate resources
in a way you all decide thecases as they come. You issue your
decisions out the door they go.We have stuff come in and we have,

(25:56):
you know, finite resources, andwe have to decide how to spend.
But I see my principal job isbasically taking the FTC Act, the
Sherman Act, the Clayton Act,and the dozens of other sort of industry
specific statutes that the Commission enforces anddoing what I would do as a law
clerk, or what you would doas a judge, which is opening them
up, looking at text and figuringout what that text was understood to me

(26:18):
and when the words were adopted,divining what the principle of that text or
the principle that original public meaning laysdown, and applying it to the facts.
Now, that sounds very easy.The anti trust laws are very difficult
to do this in because they arestated at sort of comical levels of generality.
I mean, I will give youan example. Section one of the

(26:40):
Sherman Act purports to ban all combinationsand contracts in restraint of trade. You
guys have probably all heard this ofVada any stress law. That's every contract
that ever existed, because anytime twopeople agree about something, they're removing the
thing they agreed about from competition.You can't, you know, if John
Barry and I sell a house,we have removed that house from the market
and restrained trade about it. Andso the court has developed over the years

(27:03):
a series of doctrines in order tosort of like confine that. But it's
not obvious that that confining has anythingto do with the text. It needs
to be confined because the text isnot trying to ban every contract in America,
door could it, but the wayit was constrained was not obviously text
driven. It seems to be largelypolicy driven. And then the FTC Act
prohibits unfair methods of competition. TheCourt in Scheckter said that's okay because it

(27:30):
understood the agency's power to be mostlyabout sort of common law style, case
by case adjudication. But when you'redoing rule making and setting, you know,
ex anti rules of conduct of privateconduct, I don't know what unfair
methods of competition are. I bet. I mean, as Judge hand very
famously said, unfair is is anevasive term and its meaning is normally dependent

(27:56):
on the eye of the beholder.Uh. And you know, my job
at the end of the day isto try to take the methods with which
we are all familiar and apply itto those statutes. But it's difficult.
I don't think the difficulty is areason not to do it. And I
think, for example, Judge Bork'sfamous book in the nineteen seventies, the

(28:17):
anti trust paradox is sort of kindof doing something like that, or at
least it's aimed in that in thatgeneral direction. But I agree that you
know, I don't think. Idon't think it's my job, and I
think it would actually be inconsistent withthe oath that I took the day that
I was sworn in to just sitwith the laws, consult the economists,

(28:38):
read the you know, the blogs, and be like, well, here's
the efficient or you know, probusiness outcome. I'm a Republican. I'm
going to achieve the you know,the efficient or pro business outcome. I
think the question is what was Congressprohibiting? What was the mandate that it
laid down when it adopted these threelaws? How does it apply to the
you know, the weird markets withwhich we now do and try to do

(29:02):
it that way? And you know, I think I think there's a real
possibility that going forward, especially asscholars begin to sort of apply our rigid
is the wrong word, but ourvery intentional method of originalism that we have
today, which was different than whatwe had in the seventies and eighties,
that there's a real there's a realchance that our understanding of the Sherman and

(29:23):
Clayton X will evolve in ways thatwill not sit perfectly comfortably with precedent.
But I think that's the job,is what do these words mean? How
do they apply? And you know, take the Justice Thomas approach, which
is like get the right answer andthe rest is for the birds. So
you mentioned Judge Bork's seminal work.I don't think any could question his enormous

(29:49):
influence an impact on competition theory.Right, But this place was his salon,
and he was not want to shopfrom a fight. So what would
you say to him today? Shouldbe in the sequel to the anti trucks
paradox? What did he get wrong? What should still remain? That's a

(30:11):
good question. So on the firstpoint, it is arguably within its field,
the most single most influential monograph inAmerican legal history. I mean he
basically on his own. Actually,that's actually overstating it. Some work has
been done recently, actually by someonein this room, showing that Judge Borg
sort of did not produce this workon his own, and it was part
of a like intellectual movement. Butat least as far as lawyers go,

(30:34):
he sort of rewrote the theory ofAmerican anti trust law, at least as
judges see it, kind of onhis own. It's sort of sort of
unbelievable, But I think one ofthe things with which Judge Bork was most
focused, and all of his writingwas constraining judicial discretion. And it makes
really good sense given what was happeningin all of American law at the time

(30:56):
by the nineteen seventies. I mean, I'm preaching the choir. I know
it's feedsop, But by the nineteenseventies we were in some ways kind of
just ruled by judges. I mean, especially in the South, there were
whole cities basically ruled by single districtjudges enforcing a series of either consent decrees
or decrees obtained in the course ofinsistent litigation that governed huge swaths of daily

(31:18):
activity of local governments and of thepeople who lived there. And you know,
we were in the midst of thesort of constitutional revolution that the Warren
and Burger courts had wrought, andan anti trust. You know, say
what you will about it if oneis a neo Brandisian, but the law
had become at least difficult. Itwas difficult to predict in advance how a

(31:41):
case might come out, and itseemed to turn a lot on the identities
and preferences of judges, and JudgeBork sort of saw this across the whole
landscape, and this is not selfgovernment at all. You know, a
robe to tyranny is about as dangerousthe tyranny as you can have, because
we have no chance of voting thesepeople out. And so his life's work
was a form of originalism that focusedprimarily on constraining judicial discretion. I mean,

(32:07):
you know, you remember what hevery famously said about the Ninth Amendment.
He was very worried about that everbecoming a rule of decision for judges
because it would be such an openingof judicial discretion. And I think that
the chief focus of the antitrust paradox, with which I'm pretty sympathetic, is
we need some sort of objective measurementagainst which we can test enforcement decisions by

(32:29):
the government and judicial decisions by judges. And the best way to do that
is a very economic focused analysis aboutprice and output. And you know,
I think when a lot of peopleuse the phrase consumer welfare standard today,
they basically need it in sort ofa like price and output essentialist way.

(32:50):
That's a it's not what judge Borgadvocated in his book. B It's definitely
not what he was advocating. Bythe end of his career and see it's
not actually what the cases say,but a lot of the consumer welfare standards
kind of most fervent advocates say,the way this should go is you consult
the economists, have them predict priceand output effects of the merger or the
combination or the restraint, and thenmake a decision on that basis. Again,

(33:15):
I don't think that's what Judge Borkwas calling for, but he definitely
wanted to move the law in adirection where we could measure objectively if courts
and enforcers were getting it right,because it'd become such a subjective, personality
driven enterprise. I think, youknow, if one were to write a
sequel, and I hope that originalistscholars are really thinking about this now,

(33:37):
I think some of them are,would be Okay, let's take what we
have from Judge Bork and then layeron top of it in insistence on getting
original public meaning, Like, let'sdig into what the common law understood about
restraints of trade and monopoly. Let'sdig into sort of the historical and intellectual
milieu into which these laws emerged andfigure out what are the concerns about restraints

(34:00):
and trade and monopoly that were animatingthese laws. What principles can we divine
from the historical environment in which thesewere adopted, And are those historical concerns
limited primarily to price and output.I think there's some good evidence that although
price and output were chief concerns,they were not exclusive concerns, and so

(34:22):
we shouldn't discard the intrant paradox setaside its monumentality. I think much of
it. First of all, hewas focusing on the right thing, which
was trying to figure out what Congressmeant. But I think if one is
writing a secul we try to figureout what the words were understood to mean
and set aside concerns about sort ofjudicial restraint as a theory of interpreting the

(34:45):
law. If Congress understood that itwas creating a sort of open ended standard
and it was drawing on lots ofdifferent legal sources and encouraging enforcers to think
about more than one thing in asort of way, sometimes seemingly income ins
values, that's that's Congress's call,and it'll be difficult, But I think
that at the end of the day, the question is what did what?

(35:07):
What was Congress after? What didthe receiving public understand the law to prohibit
and how does that apply in ourunique markets today. Yeah, we take
for granted often as I think you'vejust outlined that we stand on the shoulders
of Judge Borg's work. We areasking these questions now because of the insights
that he and his contemporaries brought sotoo with the originalist inquiry. And one

(35:29):
of the things that that seems tonaturally raise is is where does anti trust
begin and where do corporate rights start. There's this kind of obvious tension between
doctrines of state substance of corporate lawand federal competition law. And we heard
at one of the panels this morning, Professor Mahoney, you talked about the
founder's obsession with corruption, not thenot the kind of crass political sense we

(35:52):
might think of it now, butsystemic power monopolies. So, how does
the shifting role of the corporation inAmerica or even since the late twentieth century
affect how you think about restraints oncompetition. Yeah, that's a that's a
really good question. I'm sorry Imiss the first panel, so not an

(36:15):
expert, but obviously the corporations aswe talk about them today are like quite
different creatures from what they were atthe at the framing. I mean,
I'll defer to Professor Mahoney, butI think the general and corporation Revolution is
probably one of the most meaningful legalchanges in American history. And you know,

(36:37):
at the framing, corporations were moreor less monopolies conferred to achieve a
public good, like some sort ofpublic purpose, and today they're just the
like default system of business association andthe you know that, I think that
was largely a consequence of what likeyou know, legal history have called the

(37:00):
like regulatory race to the bottom,where states were competing for business and so
they kept loosening their their corporate regulations, were trying to get people to incorporate
in the state. But uh,you know, from my perspective, so
there is this tension you're right where, and it's a it's a healthy tension.
It's part of our system. Statesare the primary regulators of corporations.

(37:21):
They're all corporations or creatures of statelaw. We don't have federal incorporation,
but they are subject not just incompetition, but in all all sorts of
domains to all sorts of federal legislation, and the thing I think we often
forget, especially when we're doing stuffhere in Washington, they are subject to
like super intense state regulation. Youknow. President Coolidge very famously is of

(37:47):
the view that being the business policemanwould not be popular. It definitely isn't
popular with the police. It issuper popular with the American people. If
you ask an attorney general what excitesa state attorney general what excites constituents the
most about what they do, it'stwo things, and they are intimately related.

(38:08):
It is the enforcement of the criminallaws, and it is consumer protection
work. And consumer protection work meanssuing businesses are threatening to sue businesses because
of the way that they're treating consumers. That is what consistently polls among Americans
as the most important thing state governmentsare doing for them. Are throwing bad,
violent people into jail and bad corporationsinto corporation jail. And the impulses

(38:35):
are identical. It is the littleguy subject to the depredations of the strong,
and they expect the government to interposeitself between them. And I could
go off on a tangent on whyI think, you know, the criminal
justice reform as it calls itself isbarbarism because it flips that inquiry on its
head. But we'll set that aside. I think, you know, states

(38:55):
are, at least for the foreseefuture, going to tell tell us what
corporations are, what rights they haveunder state law, and what their purposes
are. And so the evolution ofthe corporation is interesting to me as an
intellectual matter, and I also thinkpotentially a cautionary tale about American law.

(39:17):
But as a federal competition as afederal competition enforcer, my general view is
I don't particularly care sort of whatstate law tells you about your purpose or
your composition or the extent of yourliability. I do care about whether you
are colluding with your fellow corporations acrossor up and down the supply chain in

(39:40):
order to deprive the American people ofthe promises of a constitution, which ultimately
were the blessings of liberty, andmonopoly rents are are not the blessings of
liberty. Yeah, yeah, I'lljust sit on that one. One of
the blessings of a long lived republicis the chance to see change. And

(40:06):
much of your docket now involves technology, and we're not talking about those horseless
carriages. We're starting to see outon the roads, right, something that
looks a bit different but basically doesthe same thing. We're talking about the
sort of stuff that when I watchTNG obsessively as a kid, was seems
like a fantasy. If you don'tknow what TG is, that sham,
I go look that up. Soare the technological advancements of the late,

(40:32):
last and present century different in kindwhen it comes to regulatory challenges? And
if so, what kinds of newtools do you think are going to be
needed to meet that challenge? Anotherreally good question. So one of the
great things about America is that we'revery young, and we encourage people to

(40:53):
come here and sort of forget theirhistories, kind of start over the new
world and new beginning for everyone,and you're not tethered by the history of
your people or the place that youcome from. That's great, it's part
of what makes us so dynamic andinnovative, but it also can generate some
myopia where everything that hits the Americannew thing, that hits American politics,

(41:15):
it's very often a reaction. Thisis the biggest version of whatever this is,
or it's the worst version it's thebest version, it's very rarely true.
So from where I sit, Igo gosh ai the techno revolution.
This is surely the most formative,most important, most difficult to grapple with
thing that's ever happened. It seemsto me that that is probably a phrase
that has been repeated over and overand over and over since Sumerians first started

(41:40):
scribbling things on stone tablets. Andso you know, I've tried to have
a little I try my best thing. It's hard for everyone but to have
a little epistemological humility about whatever ishappening at the moment. And I think,
like most conservatives, like you said, or like Russell Kirk said,
I'm just a midget standing on theshoulders of giants. And so as new

(42:02):
things come, my instinct is notto look forward. It's to immediately look
backwards and see how did other societiesgrappling with big changes that seem to becoming
organically and sort of terrifyingly, howdid they confront these? What lessons may
we learn about what worked and whatdid not? And so these do seem

(42:25):
different in kind. They seem tobe moving at sort of an unprecedented pace.
I mean that is. One thingabout change in the in previous millennia
is they seem like they happened ina moment when we read about them.
But that's because we're reading about themoments. They tended to take a long
time to come, and these seemto be moving pretty dramatically. And my

(42:45):
reaction to this as a regulator,on the one hand is they terrify me
personally, but again applying some humilityto this, I also don't want to
sort of take my ignorance or personalterror and be like, well, we
have to regulate this, so wehave to we have to get arms around
this. I think AI is agood example. AI seems in equal parts

(43:05):
amazing, terrifying and stupid. Youknow, any of you all who have
tried to go on one of thegenerators and asked for a painting and it
comes out with seventeen hands and youknow, all sorts of crazy stuff,
you go. This seems done,but it also has an incredible you know,
opportunities for innovation and more fundamentally,like this is here, it's happening.
Our allies and adversaries around the worldare going to use this, and

(43:29):
so we can't just spare a headin the sand, and so on the
one hand, I look at itand say, gosh, this is you
know, this is scary all sortsof dangerous implications. But on the other
hand you look at it and go, are there any more recent tools that
would be better for challenging big techdominance than AI? How many little competitors
who couldn't break into these markets ontheir own with the tools available, might

(43:51):
be able to break in and challengeincumbent dominance because of things like AI.
And so you know, my generalview about big technology changes is yes,
they feel different. I bet theyhave always felt different to whomever they were
being inflicted on. I think weshould look backwards to see how great civilizations,
which I still think we are,dealt with changes that came on organically

(44:15):
and seemingly terrifyingly, what they gotright, what they did not, and
then going forward, exercise some humilityand recognize a this is going to happen.
We can try to channel it,but we can't arrest it and be
there are good and bad. Thebad is it gives all sorts of opportunities.
I mean, AI is being usedevery day. Can tell you this
firsthand, to create all sorts ofscams that are unbelievably terrifyingly sophisticated. That's

(44:40):
the bad part. The good partis all sorts of little upstarts, you
know what Google was twenty five yearsago. With this tool in their hands,
may suddenly have the opportunity to challengeincumbents. And I think that that's
a good thing, and so weshould be very careful about however we're going
to confront this challenge. You drewa hand painting. I was the nerd

(45:05):
who put in write me something aboutHumphrey's executor and the several parasites. That
doesn't work well. But the severalparagraphs I got back made me think this
is going to change the way peopleprepare a legal arguments because it wasn't bad.
It wasn't it wasn't bad. Whatrole do the states play in all

(45:28):
of this? Because you sit inthis unique position where you were a state
regulatory enforcer as well now being asa federal one. Is it really one
policeman or there fifty who you werecompeting with? So when I was in
law school, I thought federalism wasawesome because of feed soak, and then

(45:51):
when I was on the hill,I thought federalism was really annoying, and
if the states would just recognize thesuperiority of the central government, there were
so many things we could get done. And then I got down to the
states as a state solcier general andrealized that the impulse that the Framers had
about I mean, you can callit subsidiarity, but the idea that government
is best done by people closest tothe government unequivocally correct, not a close

(46:15):
call. The distance of the centralgovernment to the governed, set aside mileage,
the cultural and social distance of thecentral governments to the governed is an
unbridgable chasm. And local and stategovernment has that problem so much less.
And so I am I am superbullish about state government. And I've also

(46:38):
just give an example the net choicecases. This is a problem the entire
country is confronting, and the centralgovernment, for a variety of political reasons,
is basically incapable at this point ofdoing anything like Florida and Texas did
in net Choice, and the stateswere like, people want it, the

(46:59):
people got it, and we'll defendit to the death. And it's the
same with like, you know,consumer protection work. The FDC does great
consumer protection work, but it isappropriately thanks to the limited resources big scammers
that affect big swaths of the country. State enforcers they find out about some
little local community who got scammed,show up the next day because they are

(47:21):
so close to the people they governed. So, you know, at points
in my career, I've looked atthe Constitution and gone, I don't know,
like Wickered had a national markets impulse. It's very efficient. It's so
orderly, I don't know, likeit's got some arguments. And now having
been in the States, the ideathat the Framers understood instinctively and we're totally

(47:45):
right about, which is good governmentis by those closest to the people they
claim to govern, is unequivocally correct. And the more that states assert themselves
where the federal government is either unwillingor unable, the better. We're out
of time. So I'll take theprerogative to ask the last question. If
that's okay, where do you ultimatelymake the final closing argument, since you

(48:12):
don't get to be a real lawyeranymore. For those who would say,
listen, I am skeptical of governmentpower. I am fearful of the concentrated
impulse of agencies like yours to trampleliberty. Why why should I revisit that
skepticism and be confident that the kindof kind of interventions you're talking about are

(48:38):
really going to be better for humanflourishing in both the short and long run.
Do not surrender the skepticism. Theskepticism of power is I think the
greatest of the American traits. It'sthe same skepticism that leads to mask gun
ownership, myself included. It makesus free and innovative people. What I

(49:02):
would say is, I urge youto abandon a Pavlovian opposition to all exercises
of government power and to consider thedangers of aggregations and concentrations of private power,
because there are so many things thatprivate power is able to do that
you would hate if the government weredoing it, and the fact that it's

(49:23):
the result of private people doing it, in my view very often, should
not matter Number one. Number two, I cannot overstate the danger of government
colluding with concentrated private power to infringethe liberties of everyone in this room.
I mean, Virginia was an Amikusin Mirthy, and so I'm a little
bit biased on this, but readthe District Court's opinion in Mirthy, which

(49:49):
is the case in which several statesaccused the United States of effectively coercing or
colluding with large tech firms to driveCOVID skepticism out of the public square.
Or ask someone who's ever been debankedif they're flourishing because of the results of
private choice. There are so manythings that we would be up in arms,

(50:12):
quite literally about if the government inflictedon us. I do not think
we should take it supinely when thesame conduct is inflicted on us by concentrated
power. It is a not consistenthuman flourishing and it is inconsistent with the
impulse that has made America so great. We didn't all line up just in
the Revolution just because of a dislikeof parliament. We didn't like the East

(50:37):
India Company, which was a monopolycreated by Parliament to carry out public or
to carry out a private conduct fora public good. They weren't just throwing
tea into the harbor because the taxes. They hated the monopoly, and I
think it is fake and inconsistent withAmerican history and with the thing that made
us the greatest civilization on our earth. To say government power always bad,

(50:59):
same thing by private power, resultof market forces. Let it be.
It's inconsistent with our history. Itdoesn't make any sense. And if we're
real about being conservatives that dogmatic view, throw it out the window. We
should be pragmatic about protecting individual furishingand human liberty. The case is submitted.

(51:29):
Thank you all so much. Thatwas that was really fascinating, fantastic.
We went a little bit over.We will begin our next program at
two o'clock back where we started theday, and we will take up the
role of states and securing the rightsof a free people. Thank you very much.