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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash Podcasts. We're live from

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Speaker 1: the Bloomberg Interactive Broker Studio with over that Brett Kavanaugh.

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Speaker 1: The Supreme Court will begin its new term on October one,

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Speaker 1: and the justices will take on a number of seemingly

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Speaker 1: ordinary cases that could have wide ranging implications for the country.

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Speaker 1: Speaking to reporters this week, Louisiana Senator John Kennedy said

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Speaker 1: he and his fellow Republicans were working to make sure

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Speaker 1: Kavanaugh would be on the court from day one. We've

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Speaker 1: got a deadline of October one, and that's when the

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Speaker 1: Supreme Court starts, and I think we all the needed

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Speaker 1: Joining me is Kimberly Strawbridge Robinson, Bloomberg Law, Supreme Court

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Speaker 1: reporter Kimberly, this might be a sleeper term at the

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Speaker 1: Supreme Compare this term to last term. Well, last term

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Speaker 1: was really just an incredible term where we saw so

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Speaker 1: many headline grabbing cases. We had cases where the judges

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Speaker 1: were going to potentially decide such as you, as big

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Speaker 1: as partisan gerrymandering of course, the controversial travel ban, and

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Speaker 1: even a really high profile of dispute between religious freedom

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Speaker 1: rights and LGBT protection. So, uh, it was quite monumentous term,

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Speaker 1: but not totally out of uh, out of the realm

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Speaker 1: of what we've been seeing from the Supreme Court over

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Speaker 1: the last several terms. Now, it's not always the cases

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Speaker 1: that start with the big headlines that have the most effects.

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Speaker 1: In your latest piece, you quote Professor Jonathan Turley of

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Speaker 1: the George Washington University Law School calling one of the

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Speaker 1: cases coming up this term a trojan horse. Let's start

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Speaker 1: with that. Well, sir, this case is called Gundy versus

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Speaker 1: United States, and it really involves kind of a sleeping

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Speaker 1: giant among constitution no law. And that's what's known as

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Speaker 1: the non delegation doctrine. And it's really simply just that,

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Speaker 1: you know, Congress can give some of its lawmaking authority

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Speaker 1: away to administrative agencies that are in the executive branch,

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Speaker 1: but it has to give the agency some guidance. It

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Speaker 1: can't give away all of its lawmaking authority. Uh. And

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Speaker 1: so the Supreme Court has cited this rule often, but

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Speaker 1: it hasn't very often struck down laws based on this rule.

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Speaker 1: And need the last time and only time that the

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Speaker 1: Court has done it, uh, was in the nineteen thirties. Now,

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Speaker 1: what effect might the case have if the Court does this?

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Speaker 1: The United States and its briefing noted that nearly a

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Speaker 1: dozen laws that the Court has the courts have upheld

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Speaker 1: under this lenient standard might might be subjected to this. Well,

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Speaker 1: that's right, and it really depends on how the Supreme

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Speaker 1: Court ultimately comes down how broadly they say is a

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Speaker 1: nondelegation doctrine applies? And so you know, if the Court

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Speaker 1: is going to hold Congress to task very tightly and

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Speaker 1: and make it, you know, make a really clear guidance

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Speaker 1: to the agencies, then that could put you know, virtually

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Speaker 1: unlimited laws um in play. If instead, the Court says, well,

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Speaker 1: in general, Congress had a lot of leeway, but here

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Speaker 1: it went too far. That's gonna affect fewer laws, So

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Speaker 1: double jeopardy. It's a concept that most people are familiar

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Speaker 1: with from TV and the movies at least, but they

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Speaker 1: don't often understand all the implications of it. And there's

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Speaker 1: a case asking the court to overturn a sixty year

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Speaker 1: old precedent. Tell us about that, Well, that's right. This

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Speaker 1: is gamble versus the United States, and it does involve

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Speaker 1: the very confusing doctor and of double jeopardy. And this

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Speaker 1: is really, at its most simplest, just the idea that

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Speaker 1: an individual can't be tried over and over again for

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Speaker 1: the same crime. At some point, Uh, you know, the

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Speaker 1: government has to stop. They really only should get one

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Speaker 1: bite of the apple. But there has been this long

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Speaker 1: standing six year old exception to that doctrine, and that's

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Speaker 1: called the separate sovereign's doctrine, the idea that if you

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Speaker 1: a state could try you for the same crime as

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Speaker 1: the federal government is trying you for. Now, in this case,

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Speaker 1: people are saying that doctrine, that separate sovereigns doctrine, it

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Speaker 1: has to go. So would that mean? We've seen civil

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Speaker 1: rights cases where the federal government has used this in

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Speaker 1: order to be able to pursue civil rights cases after

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Speaker 1: a federal case was lost at the criminal trial with

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Speaker 1: this effect that well, again it depends on how broadly, uh,

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Speaker 1: the Supreme Court comes down, and so uh, there is

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Speaker 1: some concern that whenever there's a failed state criminal action

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Speaker 1: that we would like the federal government to be able

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Speaker 1: to come in and punish the same conduct under civil

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Speaker 1: rights violations. The most famous example probably is that of

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Speaker 1: UM the officers and the Rodney King beating where this

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Speaker 1: happened U. But you know, the court could rule a

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Speaker 1: bit more narrowly if it wants to overturn this doctrine

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Speaker 1: and just say that, you know, it can't be the

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Speaker 1: exact same laws that these states are operating under that

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Speaker 1: it has that if you can find just a slight difference,

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Speaker 1: then that's going to be enough to get around double jeopardy.

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Speaker 1: So again, it depends on what the Supreme Court ultimately says.

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Speaker 1: And last term, kimberly, did the Court issue a lot

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Speaker 1: of narrow rulings. Well, they had a lot of rulings

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Speaker 1: that really got around a lot of the big merits

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Speaker 1: questions um that they were asking. And so you know,

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Speaker 1: the travel ban is one exception where the court came

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Speaker 1: down and uh, you know on the merits of that decision.

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Speaker 1: But in the other ones that I mentioned, the court

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Speaker 1: really side steps the issue and kind of kick the

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Speaker 1: can down the down the way for another day. So

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Speaker 1: we we did see a lot of narrow and kind

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Speaker 1: of circular decisions from the Court last year. So Sherylyn

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Speaker 1: Eiffel of the n double a CP Legal Defense Funds,

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Speaker 1: there could be cases this term with lasting effects on minorities.

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Speaker 1: Tell us about one of those cases. Well, right, the

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Speaker 1: Supreme Court has already agreed to hear a case called Abendski,

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Speaker 1: which deals with the Fair Debt Collections Practices Act. Now,

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Speaker 1: this is a longtime statue that is meant to curb

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Speaker 1: deceptive practices in in lending, and it's very important for

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Speaker 1: minority groups because studies have shown that they are more

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Speaker 1: often uh, the target of kind of predatory lending, and

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Speaker 1: so this is an issue of whether how broadly those

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Speaker 1: protections apply in certain floor closure proceedings. Now, is the

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Speaker 1: Court taking up any cases that have already made headlines? Well,

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Speaker 1: the Court isn't done yet filling out it's it's docket,

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Speaker 1: and so we don't have those just yet. But there

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Speaker 1: are several that are waiting in the pipeline. In particular,

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Speaker 1: there's one about how much federal law UH protects against

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Speaker 1: discrimination based on sexual orientation both in schools and an

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Speaker 1: employment and that's something to keep an eye on if

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Speaker 1: the justices decided to grant that case. Now, if the

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Speaker 1: Justices go into the October term with just eight justices,

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Speaker 1: if Kavanaugh has not been confirmed yet, how will that

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Speaker 1: affect what cases they decide to take as the term

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Speaker 1: goes on. Well, we have a pretty good idea about

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Speaker 1: how this will affect that. And that's because you know

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Speaker 1: the court that recently with just eight members, and we

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Speaker 1: could see a real effect that that had on its stocket,

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Speaker 1: both in the terms of the number of cases that

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Speaker 1: it took. It didn't take as many cases, and also

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Speaker 1: in the kinds of cases that it took. And so

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Speaker 1: what we saw was that they had uh cases that

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Speaker 1: weren't as controversial, that didn't risk getting these evenly split decisions.

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Speaker 1: Always a pleasure to have you on Kimberly. That's Kimberly Strawbridge, Robinson,

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Speaker 1: Bloomberg Loss Mean Court reporters. We're alive from the Bloomberg

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Speaker 1: Interactive Brokers studio and in Washington today, US antitrust enforcers

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Speaker 1: are kicking off a second day of hearings to explore

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Speaker 1: whether their playbook needs revamping because of rising industry concentration

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Speaker 1: and the dominance of tech giants joining me is Joel Mitnick,

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Speaker 1: a partner at Cadwalader. So, Joel, have mergers made the

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Speaker 1: American economy less competitive? Or is something else at work?

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Speaker 1: Thank you June, first of all for for having me

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Speaker 1: on the show. Uh So, I don't think mergers have

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Speaker 1: made the American economy less competitive, and I think that

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Speaker 1: the merger standard at the agencies are actually pretty rigorous

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Speaker 1: in terms of the review. I think that there are

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Speaker 1: probably a lot of other factors at play, but I

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Speaker 1: don't think competition or lack of competition enforcement is the

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Speaker 1: reason for any lack of competitiveness. I'm not sure that

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Speaker 1: there is a lack of competitiveness, by the way, So

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Speaker 1: you disagree with the economists and lay years who have

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Speaker 1: called for more aggressive enforcement. So it's not actually more

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Speaker 1: aggressive enforcements so much as I think the interesting thing

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Speaker 1: about the current hearings in Washington is that people are

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Speaker 1: calling for different enforcement and the key standard that antitrust

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Speaker 1: lawyers have been using since probably the mid nineties, when

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Speaker 1: the so called Chicago School developed this theory of consumer

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Speaker 1: welfare has focused on whether a given merger or a

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Speaker 1: conduct can result in higher prices, less choice, less innovation,

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Speaker 1: And the question is whether that should continue as the

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Speaker 1: standard or whether in the newer economy, particularly with these

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Speaker 1: huge tech web giants like Amazon and Google, have they

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Speaker 1: changed the landscape with for example, um low cost re

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Speaker 1: production of digital files or giving away products at below cost.

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Speaker 1: Has it changed the nature of what it means to

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Speaker 1: gain dominance because they can gain dominance now with a

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Speaker 1: very very low cost structure, which traditionally would be viewed

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Speaker 1: as pro competitive. And so that's really the question. It's

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Speaker 1: not so much as more aggressive as it is do

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Speaker 1: we have the right standard? So what kind of standard

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Speaker 1: would you use if you don't want to use price effects? Well,

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Speaker 1: I think that's what the hearings are trying to explore.

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Speaker 1: Uh and this is probably consistent with the progressive movement

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Speaker 1: that's been going on throughout America. UH. In in opening

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Speaker 1: up today's hearing, I understand Commissioner slaughter Um made an

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Speaker 1: observation that, UH, it can't possibly be the case that

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Speaker 1: these lengthy conclusion, these lengthy hearings would lead to quote

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Speaker 1: a conclusion that nothing should change. So uh and and

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Speaker 1: she came from uh Senator Schumer's staff, and Senator Schumer

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Speaker 1: is on record for expanding the kinds of analysis and

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Speaker 1: the kinds of effects that and I trust law takes

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Speaker 1: into account. For example, people today are wondering whether an

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Speaker 1: I trust standards should take account of labor, effects of

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Speaker 1: labor on effects on labor of a merger, or other conduct,

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Speaker 1: whether it should be looking at concentration of wealth. So

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Speaker 1: in a way, it's kind of a return to the

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Speaker 1: populist an I trust movement that existed before the nineties

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Speaker 1: for a very long time that essentially rested on the

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Speaker 1: notion biggest bad. And today I think the analysis that

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Speaker 1: commission Slaughter and Commissioner Chopra and others are raising UH

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Speaker 1: is much more sophisticated than simply biggest bad, but it

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Speaker 1: is that popular, this notion that an I trust shouldn't

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Speaker 1: be just focused on price to consumers but should look

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Speaker 1: at broader economic interests. I'm not sure that anybody knows

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Speaker 1: yet what the right standard is for the modern economy,

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Speaker 1: but I think it's probably a good idea that it's

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Speaker 1: being explored in these kinds of hearings. Do you agree, though,

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Speaker 1: with the conclusion of many industry analysts that there are

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Speaker 1: a lot of industries that have grown more concentrated, including

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Speaker 1: even agriculture, healthcare, airlines. So I think that that is

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Speaker 1: true UM and it's not clear why necessarily that is,

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Speaker 1: but the fact that there is concentration I think in

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Speaker 1: the older biggest bed analysis would probably be the equivalent

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Speaker 1: of saying that those concentrations are in a competitive Again,

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Speaker 1: I think with the economic tools that we have available

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Speaker 1: to us, we're able to look at the industries that

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Speaker 1: have concentrated and see that there are also a lot

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Speaker 1: of efficiency gains. And then the question becomes, are the

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Speaker 1: efficiency gains and the scale that the more concentrated competitors

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Speaker 1: can achieve are they actually having more vigorous competition. So

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Speaker 1: in a lot of areas, for example, old brick and

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Speaker 1: mortar um UH companies and industries may have concentrated, but

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Speaker 1: that concentration allows them more strength and more scale in

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Speaker 1: order to compete against the Internet companies and the web

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Speaker 1: based companies. So again, I don't think that we yet

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Speaker 1: know what the answer is. I think it's very good

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Speaker 1: that we're studying the question. The Justice Department's Antitrust Division

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Speaker 1: has asked the U. S. Court of Appeals in DC

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Speaker 1: to reverse the ruling by Judge leon in the A

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Speaker 1: T and T Time Warner case out a minute here,

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Speaker 1: What's what's your opinion of where that's going to go? Well,

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Speaker 1: I think that was a case that probably should never

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Speaker 1: have been brought, and having brought it, the division is

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Speaker 1: between a rock and hard place because they have a

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Speaker 1: terrible precedent on their hand, and so they have to

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Speaker 1: roll the dice whether that precedent will become entrenched, maybe

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Speaker 1: even made worse for them, or whether they can reverse

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Speaker 1: it on appeal. Um. I think probably that's the reason

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Speaker 1: that the Solicitor General of the United States reportedly opposed

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Speaker 1: the appeal, because if they lose this appeal, it will

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Speaker 1: have a much more entrenching effect in terms of the

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Speaker 1: d J having a very hard time in the next

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Speaker 1: vertical cave. All Right, we'll have to leave it there, Joel.

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Speaker 1: That's Joel Mtnick of Cadwalader. Thanks for listening to the

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Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

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Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

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Speaker 1: slash podcast. I'm June Brosso. This is Bloomberg. M m HM.