Episode 59-Daniel Crane

Brian Kruger:

Welcome to the podcast The Common Bridge with Richard Helppie. Rich is a successful entrepreneur in the technology, health and finance space. He and his wife Leslie are also philanthropists with interest in civic and artistic endeavors, but with a primary focus on medically and educationally under-served children. My name is Brian Kruger, and from time to time I’ll be the moderator and host of this podcast.

And welcome back to the Common Bridge. Rich’s guest today is Professor Daniel Crane. Professor Crane is the Frederick Paul Firth Senior Professor of Law at the University of Michigan. He served as the Associate Dean for Faculty and Research from 2013 to 2016. And currently he teaches contracts, antitrust, antitrust and intellectual property, and legislation and regulation at U of M. He previously was a professor of law at Yeshiva University’s Benjamin N. Cardozo School of Law and a visiting professor at New York University School of Law and the University of Chicago Law School. In spring of 2009, he taught antitrust law on a Fulbright Scholarship at the Universidade Catolica in Lisbon. Professor Crane’s work has also appeared in the University of Chicago Law Review, the California Law Review, and the Michigan Law Review, the Georgetown Law Journal, and the Cornell Law Review among other journals. He is the author of several books on antitrust law, including Antitrust in 2014, The Making of Competition Policy Legal and Economic Sources in 2013, and Institutional Structure of Antitrust Enforcement in 2011. Rich is very excited to have Professor Crane on his podcast today. So let’s join them in conversation now.

Rich Helppie:

Dan, welcome to the Common Bridge.

Daniel Crane

Thank you, Rich, I’m delighted to be on your program. 

Rich Helppie:

This is a topic that has been prevalent in America since the founding. It is one of those issues, one of those rare issues, that is both bi-partisan and defies traditional Right/Left, Republican/Democrat party lines. And we’re going to get into that a little bit today. I’m so honored that you’re here. Dan, tell us a little bit about yourself for our listeners, where the did you spend some of your early days, and what are some of the academic preparation and such throughout your life?

Daniel Crane:

Sure. So I actually, I grew up in Europe and my parents are American, but they worked in Europe, so I spent most of my formative years in Portugal, France and Germany. And I came back to college in the US and met my wife there, and I went off to law school at the University of Chicago. Got my degree, spent a few years working in big law firms in Miami and New York, and eventually became a law professor starting at the Benjamin Cardozo School of Law at Yeshiva University in New York. And then I moved out to University of Michigan in 2009 where I’ve been a law professor, mostly focusing on antitrust and economic history since I came to Michigan in 2009.

Rich Helppie:

Along the way, what have you discovered about living in Michigan versus some of those more exotic places around the world?

Daniel Crane:

So it’s really funny. I was born in Livonia, Michigan, and just coincidentally, my parents were working here that year. But then they weren’t from Michigan, and from the time I was about 11 months old till I was about 40, I had nothing else to do with Michigan. So if people ask me for the short version of my life, I say, well, I was born in Livonia and here I am in Ann Arbor. A lot of other things have happened ever since.

In terms of my field of antitrust law, what’s really amazing is that this was something that was American for the better part of a hundred years-from 1890 through the 1970s or eighties, antitrust really meant an American idea. And in the last really 20 or 30 years, this has boomed around the world, not just in the European Union, but in China and Russia and South Africa and all over Asia and Africa and South America, antitrust has become a really important idea about how markets are organized. So having an international background myself, I spend a lot of time going around the world. I teach and consult with antitrust agencies and academics and lawyers and students in South America and the middle East and Europe, in Asia. And it’s really an area of tremendous growth and lots of deeply important and unanswered questions as these ideas about antitrust are being developed on a market by market basis in many different parts of the world.

Rich Helppie:

Dan, from your writings, this is a topic that’s been historically non-partisan. Is that accurate?

Daniel Crane:

Sure. It’s been, in many ways, nonpartisan, or partisan in ways that don’t track sort of the Right/Left politics of today. So for example, in many ways, some of the strongest proponents of antitrust have been people on the political right, who saw antitrust as both necessary to preserve market competition and capitalism, and also as a preferable alternative to heavy handed regulation by the government. So think, for example, of William Howard Taft, the president, who actually in his administration much more vigorously prosecuted the antitrust laws than Teddy Roosevelt had before him. Teddy Roosevelt was known as the Trust Buster, but Taft really was the one who who really went after the trusts very vigorously. And Taft was very much a conservative-constitutional conservative and economic conservative-but Taft’s view was that this rule of enforcing competitive norms in the economy was central to maintaining a free market system. And paradoxically, sometimes people more on the Left, say the socialists-we’re thinking back a hundred years-were much more suspicious of antitrust because in their view, large concentrations of capital in a few hands were a very convenient stepping stone to nationalization of industry and government takeovers. So just the lines-the ideological political lines-are historically not at all the simple kind of Right/Left, more regulation/less regulation lines that oftentimes it appears when we talk about these things today.

Rich Helppie:

We are definitely going to learn a lot today and hopefully have some policy ideas for our listeners. We’re going to define what antitrust is, talk a little bit about why it’s important, how the Big Tech companies are playing into this, and indeed our implications for a free society, and something about the laws and the historical precedent. So Dan, what exactly is antitrust? And remember, most of our listeners are not experts in the law.

Daniel Crane:

Sure, Rich, I’d be happy to talk about that. So antitrust law is a body of law at the federal level, the Sherman Act and the Clayton Act are the important provisions, that prohibit certain kinds of anti-competitive behaviors. So for example, a price fixing cartel where competitors sit around and, instead of competing on prices, agree on themselves, what the prices will be. Or monopolistic practices-practices where a dominant firm with a lot of market share is able to knock out small competitors from the market so it could continue to charge monopoly prices. Or mergers that reduce competition by consolidating power in a single organization. Those are sort of the kinds of things the antitrust law is concerned about in a legal sense. Now what antitrust law has actually meant has varied dramatically over the course of American history:  at times antitrust law has been very concerned with keeping a level playing field, protecting the little guy, protecting the mom and pop organization from the bigger company. At other times, in particular today, antitrust law is very concerned with economic efficiency, with making sure that a dominant economic power is not used to increase prices or reduce innovation. And those are very, very different visions for an antitrust system. On the one hand, say protecting the little guy or keeping a level playing field, versus let’s just make sure that our economy continues to tick along in as efficient way as possible. And interestingly, nothing in our antitrust statutes, nothing in the Sherman Act, nothing in the Clayton Act, nothing in the Federal Trade Commission Act, really tells us what the standards or the norms or the principles should be. And that’s really been left to the courts over the course of years to reflecting the political winds of the day, come up with different ideas about what antitrust law should accomplish. 

Rich Helppie:

I was reading some of your papers in preparation for this, that we will be posting a link to your web page and people can go look into some of the writings that you’ve had. Three of them that I found particularly interesting, one was entitled, Is More Antitrust The Answer To Wealth Inequality, a second called Antitrusts Unconventional Politics, and then Antitrust and Democracy, A Case Study From German Fascism. And what was fascinating to me was that the legal system and the political system have responded to the needs of the day and that they see monopolistic practices coming in from the private sector predominantly, but also sometimes aided and abetted through the political/governmental sector through cronyism or protected markets. And today we’re dealing with Big Tech and that’s a huge role in our lives. I hope folks got to see the heads of the Big Tech companies testifying on Capitol Hill. It went way beyond marketplaces, but into the theft of ideas, setting prices, copying goods, strangling the visibility of competing products, going way beyond the consumer welfare standard and getting into some privacy and perhaps some freedom implications. Dan, in terms of Big Tech and them being international firms, what kind of antitrust response should we be looking for?

Daniel Crane:

That’s, of course, the $50,000 question right now, which is what kind of antitrust response will we see coming out of the great interest that the government has shown, and many politicians in Washington have shown, in the power of Big Tech in particular. And I think we’re going to get an answer perhaps on Google, at least, there’s a Justice Department case that’s been talked about for a few months that seems to be set to go any day now. But Big Tech is, I think, it’s just a great example of the kind of trade offs and the kinds of competing themes around antitrust that have always been with us historically. If you heard the testimony of the CEOs of Google, Amazon, Apple, and Facebook a few weeks ago before the House Judiciary Committee, what all of them argued is that first of all, they don’t really have that much power. The thing that Google always says is that competition is just one click away. No one’s forced to use Google. No one’s forced to use Facebook. You can go somewhere else, there are choices if you want. So they’re not monopolous, there’s competition. And secondly, people argue, or the CEO’s have argued, that they actually don’t do anything anti-competitive, that everything they do is designed to make products better and cheaper for consumers to use. And of course, lots of consumers love the “free access” they have to Google, to Facebook, and how they can get a great products from Apple or cheap products from Amazon. So I think from their perspective, it’s pretty easy to make the case that they have been icons of American success and that they bring lots of value to consumers. On the other hand, though, antitrust law has long been concerned, not just with getting things cheaper or easier to use, but with power, with domination. Back when the Sherman Act was being passed in 1890, one of the common themes that you heard from people in Congress and people in the press, was that a hundred years ago, we threw off a political tyrant in the person of King George, the third. And what we’ve now seen in this gilded age is the replication of the kind of tyrannical power wielded by an absolute monarch in the form of John D. Rockefeller and the Standard Oil Trust, or JP Morgan and the money trust, and so forth. And I think part of what people are reacting to today, and you heard that from from people in the House Judiciary Committee, was these companies just have too much power. We don’t trust it when there’s too much power concentrated in the hands of the government. We don’t trust it when there’s too much power concentrated in the hands of labor unions or religious organizations or any other organ of society. We want power to be checked, power to be dispersed. And so I think this is a longstanding tension in antitrust, which is the tension between efficiency coming out of large scale organization and the kinds of concerns about excessive concentration of power and the abuses of that power that occurred when it’s concentrated in a few hands.

Rich Helppie:

And that’s where the leap off point from the competitive market, so that we don’t have to buy all of our oil from one gas company, for example, right into privacy implications. And I don’t know that we’ve ever seen anything like this. In recent months, we’ve seen simultaneous de-platforming of people. And whether you think they’re a despicable person or not, the power of these Big Tech companies to virtually create a non person out of any of us should give us all pause, the censoring of content that they all practice under one guise or another. And indeed Facebook came out today and said what they were going to do as we lead up to the election in November, there was testimony about the tracking of our movement and our personal connections. And of course, what I browse, what I buy-I think about maybe some of your students, they’ve got their entire life being chronicled digitally and stored by these behemoths. I’m personally happy I wasn’t filmed in my twenties. What can the government do relative to this power and the fact that these are international borderless companies in some respects, is there any restrictions that can be put on them or will it take an international coalition to come together on some type of unified antitrust approach?

Daniel Crane:

Well, the government, first of all, in order to do anything under the current law, at least we’d have to establish the violated the antitrust laws. And obviously all of these companies have very good antitrust lawyers who will make arguments that what they’re doing is not in violation of the antitrust laws. And given where the courts are today in terms of the legal doctrines that have been developed since the 1970s, I think that mounting that challenge to Facebook, Google, Apple, Amazon, and others will be really difficult. There was an article in the Wall Street Journal last week about a number of staff lawyers at the antitrust division being very concerned that the government is rushing a case against Google, which might have merit, but is rushing it in a way that is going to lead it to be insufficiently prepared, given where the doctrine is, where the case is filed.

So the first step is just establishing liability under existing law. But even if you establish liability, you have the problem of what our former chairman of the Federal Trade Commission called “the dog chasing the car”. So what does the dog do if it catches the car? What do you do if you catch Google? You say Google, you’ve done a bad thing by biasing search results to steer people to Google pages. Or Facebook, you’ve done a bad thing by limiting people’s right to speak in certain ways on your platform. Or Apple, you’re privileging your own apps and restricting their portability. Or Amazon, you’re interfering with the ability of third party sellers to sell at lower prices elsewhere. What do you do if you find liability for these things? Well, there’s a narrow approach, which is saying stop doing it. We order you to change this behavior, that behavior. But I think lots of people think that the problem is not just any particular species of conduct, it’s structural, as long as they’re sitting on that much data, as long as they’re sitting on so many people’s lives, there will always be a potential for abuse. And so there the question is, do you break them up? And as you may know, Senator Elizabeth Warren, about a little over a year ago, came out with a proposal for much more aggressive breakup approach to Big Tech.

Rich Helppie:

I think Senator Warren has some well thought out policies on that. But I think the point that you make about the amount of data that a few companies have, because we know that they’re sharing it, and as a person with a significant computer systems background, today there are tools, artificial intelligence tools, and big data engines that allow all of this information to be sorted, collated, and measured in ways that most people cannot even imagine. And that cell phone number that you’ve had for the last 15 years is a great way to track you across all kinds of different platforms.

And in addition, Dan, you mentioned about the liability, and today isn’t there a debate about whether some of these firms are utilities and therefore not responsible for the content? And if I’m not mistaken, that the internet service providers, or ISPs, have been designated as utilities, and they’re not responsible for content, but that some of the Big Tech companies, they want the best of both worlds. They want to be regulated like a utility and not responsible for content, yet at the same time control the content that is on their platforms. Do I have that right?

Daniel Crane:

I think the way they put it is they want to be protected as though they are utilities, but left alone as though they’re not utilities. So if you sort of think about two different ways of organizing an economy, roughly speaking of a market facing economy let’s say. One way is through antitrust and another way is through regulation. Regulation basically says, okay, electric company, okay phone company, okay gas utility, we’re going to tell you how you can behave. You’re a private company, but we’ll tell you how much you can charge, we’ll tell you the terms of service, we’ll tell you that you can’t discriminate in certain ways, we’ll regulate every basis of your life. But the quid pro quo from that, if you’re the utility, is that you get to say, alright, as long as I’m doing what the government says, you can’t hold me liable for it, right? The government’s ultimately responsible for the conduct of my business in some way.

The other way of, if you will, regulating a market is through antitrust, saying, no, no, we’re not going to tell you the specifics on how you price or what terms you put in your customer service agreement, or how you use your data. But when you violate certain standards, we’re to hold you accountable. And one of the questions with respect to Big Tech today is whether that antitrust model, which is we’re going to leave you alone until you do something bad and then tell you did something bad, that is going to be feasible for Big Tech. So they do, in many ways, have the protection right now of a public utility under the Digital Millennium Copyright Act in terms of not being held accountable in various ways for what people say or do on their platforms, but they don’t have the corresponding traditional supervision of a public utility regulator, where we could say, wait a minute, this practice or that practice is one you’re going to have to stop, or you’re using data various kinds of ways-they’re misuses, or you need to share your data with other companies in order to foster competition.

Rich Helppie:

The tech companies are actually ahead of the regulators substantially, that they’re imagining ways to use that data and that surveillance. There’s a hundred million phones that have been provided by Apple. Google does 90% of the searches. We know that these Big Tech companies are surveilling other companies for the purpose of buying them, cutting them off or copying their material or stealing their supplier list, predatory pricing. We all know Toys R Us went under and part of it, you had a business that needed to make money selling toys competing with a company that could lose money selling toys, in Amazon. We know that they’re harvesting personal data for both profit and intrusion, and they’ve reached over into control of political speech. And that kind of leads me to a fascinating paper that you wrote just two years ago about antitrust and democracy. And my understanding is that monopolistic behavior can facilitate fascism. Is there a way you can help our listeners understand that connection?

Daniel Crane:

Sure. So this is something that’s been long debated, but there is fairly good historical evidence that extreme concentration of economic power in Weimar Germany, and really even pre-Weimar Germany, made it much easier for Hitler to come to power and to consolidate power in himself and in the Nazi party. And this is not just something that historians have said. In 1945, a group of American lawyers went over to Germany with the occupation government of the US military and set up a what they call the decartelization unit, whose job was to study and to gather records and evidence about the role of monopolies and huge cartel organizations in Germany in facilitating Hitler’s rise to power. And I’ve spent several years now going through records and reading lots of literature on this and the conclusions I’ve come to are, first of all, that in many cases, these huge monopoly firms, companies like the IG Farben Chemical Cartel, for example, we’re not, it’s not that they were fans of Hitler so that they were actually wanting Nazi-ism and we’re helping him to come to power intentionally. In fact, in many cases, big business opposed Hitler coming to power. But the fact that the German economy was so heavily concentrated in a few hands, a few banks, a few big industrial companies controlling so much of the economy, made it much easier for Hitler to come into power by basically saying, look, I’m going to be the dictator here and if you want to share my economy, monopoly company, you need to play along. And so the US occupation authorities rendered a number of reports pinning the-not the entire blame of course, there are many, many different causes for the rise of Nazi-ism-but showing the ways in which extremely concentrated economic power made it easy for someone like Hitler to concentrate all the power in his own hands. And in 1950, the US Congress in passing the Celler–Kefauver Amendments to the anti merger law-the Clayton Act in the United States-which led to a much more aggressive period of anti merger review of the courts, Senators Celler and Kefauver, the sponsors of that bill, made it very plain that in their view, there was a rising tide of economic concentration in the American economy, which if it wasn’t checked, could lead to the same kinds of problems that we’d seen in Europe and Germany in the war we’d just fought. And so there has long been an idea that a democratic society is inconsistent with extreme concentration of power anywhere. We all know that having all power with the president, or all power in Congress or even the courts, is not consistent with democratic ideals. We need to separate powers in some ways. And the same thing is true about the market. If we allow too much economic power to be concentrated in one place, that tends to be threatening to democratic values.

Rich Helppie:

We look at where we are in the United States today with antitrust and monopoly implications for not only the marketplace, but for privacy and for freedom. It seems like there’s a parallel, and I’m quoting from your article here. It says that the US antitrust laws have never been understood as constitutional in any meaningful sense. The government has no affirmative obligation to protect any private firm or individual from monopolistic oppression. And if I’m understanding that correctly, that means we really need to turn to the political system and call on both parties to lay down their partisan arms and ensure that no antitrust and monopolistic behavior arises, while probably both are very tempted with the use and abuse of those very same monopolies. Is that near to what you’re trying to communicate?

Daniel Crane:

That’s right, Rich. What I’m saying is that unlike many constitutional principles, antitrust law is not a constitutional guarantee. The government really doesn’t have to do anything. Now, we do have these statutes that make certain behavior illegal, but that really depends upon them being enforced, either by the government or by private parties. And I think you’re right to say that there is a lot of potential for abuse. Once you concentrate that much power in one place, there is just a natural tendency for politicians to kind of do business with monopolies for their own gain. So you certainly see this in many, many countries where there’ll be a very strong dictator type leader of the country or strong centralized power, the government. And what they do is they give exclusive privileges to people-monopolies. In fact, the original sense of what monopoly was, historically, was an exclusive privilege from the government. And this is how governments, rulers, kings have long worked. And the reason they do it is because giving a sort of a crony monopoly to their friends allows them both to keep power around themselves and also to make lots of money. Because the trade off is, I’ll give you a monopoly and you’ll give me a share of the profits back as taxes or payments back to the crown. And so I think there are very important political reasons to think it’s not just about lower prices or innovation, which are all important and all should be part of the equation, but there is a political reason, a democratic reason to be concerned about excessive power anywhere.

Rich Helppie:

It’s my strong belief that too much power concentrated, public or private, leads to ultimately no good. They all become bureaucratic and bureaucracies ultimately work for themselves versus serving the customer. And I think that that applies to political parties and labor markets as well. Some of our states are effectively one party states, and I won’t veer into that discussion. So as we’re thinking about these Big Tech companies and monopolistic behavior that it’s crushing innovation and competition, it could propel or support fascism instead of being a doorway to freedom. The privacy implications are still looming out there. They’re able to shape public opinion and indeed they’ve admitted to doing that, Facebook doing what they call shadow bans, Google boasting about silent donations to various political campaigns. They seem to be on a collision course with other areas of the law, for example hate speech and inciting violence. And it seems that we are looking at companies that got stronger and stronger during our current pandemic, as people were forced online versus being able to interact with each other. So when we look at this entire problem, what are some of the possible solutions? And let me just pose the first question. Is it new legislation that we need, or are laws on the books sufficient, or is it a political solution or how do we go from here?

Daniel Crane:

So I think that the laws on the books are actually adequate to deal with the problem. Although there has been talk about new legislation, I personally don’t think that we need the legislation. The laws that we have are very, very general and they can be interpreted different ways, by different enforcers, by different courts. It’s also the case, I’ve done some work recently, showing that when Congress historically has amended the laws, the courts have pretty much tended to do what they wanted to do anyway. So I’m not sure that amending the law is going to make a big difference. But I think we do have to think about, really get to the root of some of the problems. And the problems are not all just that private individuals get a lot of power unto themselves. I mean, there are many, many different sources of monopoly power. For example, government regulation can itself make it hard for new companies to come into markets and to compete in various ways. Patents can block companies-new companies-from participating in certain kinds of ways. Abuses of regulatory processes can get in the way as well. So it’s not just the behavior of a few powerful people in big companies that is the concern, the real issue is how do we think about a pro-competition norm and anti-monopoly norm that runs through our legal system as a whole. At the same time, we always have to be conscious that big isn’t necessarily bad in every way, that there really are efficiencies that come from people having lots of data. Let me just give the example of Google, for example. So, I mean, I use Google all the time. It’s a wonderful search tool. I mean, it’s an incredible tool. The world’s at my fingertips, and the reason the world’s at my fingertips is because Google has so much data. I mean, that’s how their algorithms work. It’s based on the wisdom of the crowd. And so if we were to say, let’s just break up Google into 12 small companies, you might very well lose lots of the benefits that come from having that much data. Facebook has recently announced something that I’m very interested to see how it works, which is its oversight board. And the goal of the oversight board is to say, instead of having these censorship decisions made by employees of Google, let’s get an independent organization that’s not in any ways financially interested in Facebook’s outcomes to try to decide what is the boundary, what’s the limit of what’s appropriate and allowable on Facebook. So I don’t think that all the solutions have to come from new legislation or even the government enforcement. We, the United States, have such a tradition of ingenuity and getting jobs done that the real question is how will these companies themselves step up to the plate and acknowledge that there is a problem, that even if they’re doing things they don’t mean to be doing, to be doing things that upset people, people are genuinely and in good faith, worried about the kind of power that these companies wield. And what solutions can even the companies themselves find to say, we want to take affirmative steps to make sure that we’re not abusing that power.

Rich Helppie:

And to your point about they know that they’re on ground that the consumer doesn’t want, most people have had ads served up to them that, I was looking at going up north and I’m being shown ads for camping equipment, as one example, but they noticed that not all the ads are things that they are interested in-that’s done purposely so it won’t look so creepy. And I agree-that is actually part of the algorithm-that I also agree that big’s not necessarily bad. And so I mentioned Toys R Us and Amazon, and I tried to buy a gift going online at Toys R Us, when that existed-it was excruciating, versus the ease of pulling out my cell phone and going onto my Amazon app and getting the same thing. And similar with Bed Bath and Beyond, tried to go there and go to the same product at Amazon, easily, because Amazon’s invested in the infrastructure and the systems and the technologies and such that benefit me as a consumer.

It seems to me that the political side needs to draw the right targets in that I watched how crafty the CEOs were during their testimony. By way of example, Google started talking about the cost of advertising, in terms of gross domestic product, is down and he avoided the entire topic about who’s controlling the advertising. Of course, ads are cheaper, everything’s cheaper as it moves online, you’re not doing magazine shoots, prints, big trucks to deliver those things. And the congressional representatives sat there in awe like, yeah, I guess it is cheaper. Well, of course it’s cheaper, but that’s not the target, the target’s the misuse.

Daniel Crane:

Sure, and certainly those hearings were political theater. I don’t think that the sound bytes that came out of that were very entertaining, but they didn’t ultimately get to the heart of the questions. But one thing to keep in mind also, is that it’s not just sort of consumers against the big companies or Congress against the big companies or the Justice Department or Federal Trade Commission against the big companies. It’s also the big companies against the big companies. So just in the last few days, Facebook has complained that Apple IOS14, which is due to come out soon, will actually curtail Facebook’s ability to deliver targeted ads. And so there’s still always, sort of think about the story of antitrust as though it’s all little guys against big guys, but lots of antitrust really is just the companies themselves deploying antitrust as a tool to get a market advantage against the other one. And I personally don’t think that’s a good use of antitrust law. I think antitrust law needs to be a principle of democratic and market accountability, and not just a tool that that big companies deploy along with intellectual property and tort law and other things, to get an advantage against each other in the world of things that are sold and built. So I do think that there’s often a lot more than meets the eye, and just spend a little time looking at who’s actually behind lots of complaints to the Justice Department or Federal Trade Commission, or the European Commission in Brussels. And what you’ll find is other companies who are feeling disadvantaged who want to get the pot stirred up so that they’ll be able to make more money. And again, I’m just not convinced that that’s what antitrust law should be trying to accomplish.

Rich Helppie:

During my business life, AT&T was broken up, IBM operated under a consent decree, Microsoft’s businesses were limited, all of which spawned other businesses and other innovations, including some of the companies we’re talking about today. If you were going to look into your crystal ball and say, what’s the next big case on the horizon?

Daniel Crane:

Google. Unless I’m-I don’t have inside information on this, but there have been reports for number of months that the Justice Department and a number of state attorneys general are preparing a monopolization case against Google. It was expected to be filed this summer I understand from recent media reports, and its timing is a bit up in the air. Will it happen before the election or not? I don’t know. Will the election change that from happening? Again, I don’t know. But I do think that it is likely that there will be a significant antitrust case against Google filed within a short while. Will that be followed by a case against Facebook, Apple, or Amazon? They seem to be the most likely targets. They obviously were the targets that the House Judiciary Committee wanted to grill. So I would say that those are the likely candidates. The other thing to keep in mind of course, is that we’ve been talking just about the United States, but in Europe, I mean, the European Commission has already gone brutally against Google. I mean, they’re up to close to $10 billion. That’s billion with a “B” in fines in Europe for antitrust violations. They’ve obviously gone after Facebook and Apple and Amazon to lesser extents as well. And again, one of the shifts that has happened in recent years is that the United States seems to have lost a bit of the initiative of the leadership in bringing some of these cases. Not only has the European Union become much more aggressive, but lots of other antitrust regulators in other parts of the world and Asia and so forth are, are becoming more interested as well. So one of the things to keep in mind is if we don’t do it other people will step up and do it too.

Rich Helppie:

And when we think about Asia and China and the close interconnection between the Chinese Communist Party and the quasi private/public firms, they seem to have a bit of an advantage on the world stage in that they’re literally not subject to any kind of constraint.

Daniel Crane:

Well, it’s interesting, China passed an anti-monopoly law in 2007. That law looks, on its face, very similar to, in many ways, to European law even, in many ways, so much of American law. But you kind of have to ask yourself, what does anti-monopoly law or antitrust law mean when you still have 50% of all commercial activities directly controlled by the state and the other half is not necessarily directly controlled by the state, but as you said, Rich is highly orchestrated by the state. What does a premise that we all should be competing with each other look like when the state kind of runs the economy? And one of the concerns about China is that it will use what, on the books, looks like an antitrust law as a law to sort of block foreign direct investment, basically saying you’re a monopoly if you’re Coca Cola or Apple or Microsoft. And you’re just fine if you’re Baidu or something. So that’s the concern and frankly, it’s not limited to China. It’s lots of countries in the world as they introduce antitrust laws. Are they really going to do it to stimulate competition and open up their markets, or are they going to use antitrust laws in many ways to privilege national companies at the expense of foreign companies. And I think the jury is still out on that. In many ways the global antitrust movement is still quite young and I’m just hopeful that antitrust law, if it really takes seed as a global kind of universal principle, that we compete and we exchange, and you get to earn money by delivering goods and services in a way that people want to buy. I think that could be a great thing for the world if it could turn out that way, but there are many reasons to be concerned that what sounds good in principle could be misused in other ways.

Rich Helppie:

Well, Dan, this has really been fascinating and we may want to bring you back on the Common Bridge to go deeper on some of these topics. This has been a very educational program for me, and I’m sure for our listeners. As we look to start wrapping up, what did we not cover that perhaps we should have discussed today?

Daniel Crane:

The one thing that I think we alluded to a little bit, Rich, but I want to just underline, is that-as has been true historically in many ways-the current discussion about reforming antitrust law and the perception that maybe antitrust law has gotten too weak in the last 30 or 40 years, it needs to be revitalized in some way, is not just a Republican versus Democrat, conservative versus progressive, free market versus pro-regulatory, kind of conversation. What’s been surprising to lots of people in recent years is that much of the interest in revitalizing antitrust law has come from the conservative right. It’s also come from the progressive left. And so it’s actually one of the things that, well, I would say not everyone agrees on it, it’s not a cleanly, a Right/Left political thing either, there are many different reasons for that. I mean, part of the reason for that is just that I think lots of people on the political right are very suspicious of Big Tech platforms. You saw that at the House Judiciary Committee hearings where the Democrats were attacking the big platforms for having too much power and abusing it, and the Republicans were attacking them for being unpatriotic and censoring conservative points of view and being anti police and so forth. But I think really the Big Tech platforms are caught in the middle between this constellation of people who are concerned about them from both directions. But I really think that antitrust law should not be a partisan political issue. There should be  some general ideas about how we organize our economy competitively, how people are free to compete, and free to get rich, and free to build great things, but there are lines that you can’t cross. I think that should be a nonpartisan issue. And I hope that whatever the outcome of this very contentious election will be, that that will be reaffirmed as an idea that people at all sides of the spectrum can rally around.

Rich Helppie:

Would there be action that people could take today to help facilitate that outcome?

Daniel Crane:

I think becoming informed is the first step. I mean, antitrust law in its modern application is very, very technical. There’s lots of economic jargon that’s used that’s really hard for anyone but the specialists to understand. But getting informed about what the law currently is and where this has taken us recently, would be a great starting step. And I think raising this in conversations, if you’re talking to your Congress person, if you’re just talking about what are some of the big policy things that we don’t talk about a lot that actually shape our lives, raising consciousness about these questions, I think would be a place that the ordinary citizen having become informed about the matter can make a real impact.

Rich Helppie:

I thoroughly encourage people to write to congressional representatives and their senators and their presidents and their mayors and their governors. And when they do write about antitrust, whether it’s for market competition, privacy, or creeping fascism, what would be some of the best policies to advocate for? And similarly, what would be some of the worst things that people could advocate for?

Daniel Crane:

Well, I’ll find it much easier to say some of the worst policies that that you could advocate for. And this is my own personal opinion, obviously, and people have very different points of view, but I think there is a real concern that antitrust law could be-antitrust law itself-could be misused as a political device. And not to make it a present criticism of the current administration, which as I’m sure people know, was sharply criticized for bringing the unsuccessful case to block the AT&T/Time Warner merger because of President Trump’s hostility against CNN. But if you go back to Richard Nixon, for example, I mean, Richard Nixon very clearly used antitrust prosecution as a tool and sort of trading-I won’t prosecute you if you give money to my campaign as a political tool, as just a corrupt political tool. And so one thing that, although I want to encourage the idea that citizens should be involved in speaking about antitrust-and antitrust has importance for democracy-one thing we don’t want to do is make antitrust enforcement itself political in that way. Because that actually just leads to a kind of worse situation where whether your merger is allowed or not becomes a function about the amount of influence you wield in Washington, or with the current attorney general, or head of the antitrust division, or Federal Trade Commission. Antitrust selection should not be that way, it should be based on general neutral principles about how we maintain market competitiveness. And so again, as people are energized to think about these questions and to write their representatives or speak about them, it cannot be the case that we should break up Google because we don’t like the current leadership of Google, or we should leave Amazon alone because we think that Jeff Bezos is an okay guy or his politics are right. I mean, it needs to be these are the principles that America believes in, in terms of the value of competition and openness of markets. And those will be applied without regard to political affiliation.

Rich Helppie:

And again, I encourage everyone to read some of the papers, because of this nonpartisan history that we’ve had around antitrust, at least prior to current administration, and indeed in the Reagan administration, clearly a free market it was the 1982 consent decree for breaking up AT&T. We do have a great history in the country of those values that you talk about. And I hope that this program and the wonderful work that you’re doing can be part of us getting to that fairness, that equality, and that open society that we all crave that has made this a great place.

Dan, this has been a phenomenally wonderful chance to learn and to talk. Any closing thoughts for our listeners before we sign off today?

Daniel Crane:

Rich, thanks so much. I’ve really enjoyed the conversation as well. And again, I just encourage people to think open mindedly about competition. It’s easy to say monopolies are bad. And we all like competition, but there are limits to competition as well. If you think about your own family, for example, do you want everyone competing against each other all the time? No, we don’t, right. So really ask yourself, where do I want to see competition, and where do I want to see collaboration in our society? And I think that’s really the fundamental question that under-girds all of antitrust law and it’s one-whether or not you ever get involved in talking about antitrust law-thinking about competition and collaboration as kind of values that are always in tension with each other is a really great place to have your mind for awhile. And hopefully there are applications for everything that we all do in our daily lives as well.

Rich Helppie:

I think everyone can agree with those common principles. And that is what the Common Bridge is all about. We’ve been talking today with Professor Daniel Crane-wonderful education around antitrust, it’s implications for our democracy. This is Rich Helppie signing off today on the Common Bridge.

Brian Kruger:

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