Category Archives: Competition

Time for a Federal Price Gouging Law?

Amazon’s vice president of public policy, Brian Huseman, calls for a federal price gouging law in a recent post over at Amazon’s in-house blog. This is a bad idea for several reasons.

One is that there are already effective ways to reduce price gouging without regulation. At Amazon, Huseman writes, “We deploy dynamic automated technology to proactively seek out and pull down unreasonably priced offers, and we have a dedicated team focused on identifying and investigating unfairly priced products that are now in high demand, such as protective masks and hand sanitizer.”

This should be a competitive selling point for Amazon, not a call for more regulation. Regulations, remember, are made by the government we have, not the government we want. Amazon’s technology and in-house policies are almost certainly more effective than what Donald Trump, Nancy Pelosi, or Mitch McConnell would enact during an election year and a pandemic. Company-level policies are also more adaptable than federal-level policies as technology and circumstances change.​

In fact, if Amazon isn’t already doing so, it could license or sell its anti-price gouging technology to competitors for a profit. Price gouging is unpopular, and companies that fight against it look good to customers. Amazon does not need federal regulations to force this business opportunity into being.

Looking at price gouging legislation from Amazon’s perspective, but without the public relations filter, they stand to gain three things from a federal price gouging law:

  1. Regulatory certainty. One federal standard is easier to follow than dozens of state standards.
  2. Liability protection. Amazon will face fewer price gouging lawsuits if the company is cooperative with legislators, or even has a hand in crafting the rules.
  3. Rent-seeking, which is economists’ term for using government for unfair advantage. Price gouging legislation is a way for Amazon to raise rivals’ costs without having to improve its own offerings. Amazon has already invested in artificial intelligence algorithms (AI) and in enforcing guidelines for its third-party sellers. Many of Amazon’s competitors have not, especially the smaller ones.

There is something to be said for the first two items, though there are also arguments against them. But the third item, rent-seeking, is anti-competitive behavior at its worst. One of the primary reasons CEI opposes antitrust regulation, for example, is that antitrust regulations themselves are a major rent-seeking opportunity. Big companies routinely game the rules to thwart competition. Price gouging legislation is another example of the same rent-seeking process. These initiatives happen when companies compete in Washington, rather than the marketplace.

Other Factors

Amazon’s call for a price gouging bill might be part of a larger effort to get itself out of antitrust crosshairs. Ironically, such a bill would make retail less competitive. Not only would Amazon raise rivals’ costs, legislation would prevent companies from competing with each other to offer price gouging policies their customers most prefer.

The timing is as bad as the idea itself. Retail sales declined by 16.4 percent in the month of April, the worst ever recorded—for the second month in a row. Retailers have enough to deal with without having to spend resources complying with new rules their competitor helped to write.

There is a federalism angle, as well. A federal rule would impose standards on more than a dozen states that intentionally refuse them.

Prices Are More than Money

As any good economist will tell you, money isn’t everything. Prices are a lot more than money. Every good has a mix of both money and non-money prices. Price gouging legislation is ultimately ineffective because it only reduces ­money prices during a crisis. Tamping down on those means more severe non-money price increases. These cannot be legislated away.

A high money price causes people who don’t urgently need toilet paper or hand sanitizer to hold off until later, when the price goes back down. That leaves more left over for people who need it now. This matters a great deal during an emergency. On the other side of the equation, that same money price increase also induces producers and distributors to go the extra mile, often literally.

What about non-money prices? One example of a non-money price is when a good becomes harder to find. You might have to drive to a store further away or do some deep digging online for some potentially shady sources. Queuing and waiting lists emerge or shipping times might take longer. These things don’t cost money, but they still have a price. They are not measured in dollars, but in wasted time, extra hassle and stress, and lost opportunities. These non-money price increases leave people with less time left over for other things such as job searches, home schooling, or even taking some time for self-care.

Shortages will happen during a crisis. That is unavoidable. The question is how to deal with them. Just as pushing on a balloon doesn’t change how much air is in it, squeezing down on money prices with a price gouging regulation doesn’t actually do anything to stop price increases. It mostly just redirects them to non-money areas.

What is the correct mix of money- and non-money prices? That is a subjective value judgment. There is no truly right or wrong answer, which is another reason why federal price gouging legislation is bad policy.

Public opinion is pretty well set against price gouging. Importantly, though, most anti-price gouging activists have likely not considered the tradeoffs they would pay in steeper non-money prices. Some of them would likely change their mind if they did. Pollsters should find out. Corporate PR departments would likely change their tune quite a bit based on the results.

Federal price gouging legislation would not stop price increases or alleviate shortages. It would sharply increase non-money prices during emergencies and drive some economic activity into black markets. Companies can set their own price gouging policies without regulation, as Amazon has proven with a mix of AI and sanctions against violating sellers. The rent-seeking aspect of potential price gouging legislation is worth considering for people concerned about business ethics and about large companies gaining an unfair advantage over smaller rivals.

In short, a price gouging bill is #NeverNeeded. Congress has already passed enough harmful flash policy. There’s no need for still more.

Lawrence Freedman – Strategy: A History

Lawrence Freedman – Strategy: A History

There are a few subjects I’ve always found uninteresting, despite my best efforts. Most of them involve conflict, rather than cooperation; this may be why I am so drawn to economics, which is the study of human cooperation. Uninteresting (to me) conflicts include theological disputes, most military history, and strategy of the zero-sum variety.

This book didn’t change my mind about military history, but the rest of it is surprisingly engaging. It is also very long—I recommend the audio version. Organized mostly chronologically, the book starts with ancient Greek, Roman, and biblical figures, quickly dispenses with the cliched Machiavelli and Sun Tzu, and gives John Milton’s Paradise Lost a surprising turn.

The part titled “Strategy from Below” is mostly about different theories of socialist revolution, which has a wealth of different approaches and strategic philosophies that apply well outside that ideology. One complication is that socialism is a top-down strategy to social organization; “Strategy from Above” would have been a more accurate title. He also could have done more to highlight the differences between Marx’s belief that revolution could only happen in an already-industrialized country; Lenin’s focus on small professional cadres; Mao’s blend of pastoralism and centralized decentralization; and various decentralized anarchist movements. But I still learned a lot from Freedman’s treatment.

Freedman’s discussion of the civil rights movement is excellent, and far more rewarding than the usual black-and-white contrast between Gandhi and Martin Luther King, Jr.’s non-violence versus more radical strategies. As is often the case, there is much more to the story, with many in-between strategies working towards the common goals of equal rights and ending segregation.

The mostly white and middle-class 1960s campus radicals often come off as privileged twits by comparison. Counterculture has great value in moving social norms over in favor of individualism and dynamism, against war. The movement also produced some excellent art, literature, and music. But it fell short in more serious areas such as political philosophy and strategy, and badly failed in staying clear of self-evidently dumb new age philosophy.

The next part, “Strategy from Above,” focuses mainly on business and management, which is more a blend of blending top-down management strategies in firms that are constantly reacting to new developments in bottom-up emergent orders. The section title is poorly chosen, but the content is good.

As the baby boomer generation entered middle age and middle management, some of its members became part of a new management guru movement. It came complete with ghostwritten self-help books, outrageous speaker fees, and power suits with built-in shoulder pads. Freedman calls them these management gurus the snake oil salesmen they are, and shares some amusing behind-the-scenes stories from this movement’s heyday.

But life did not begin with the baby boomers. Freedman begins this movement’s roots to about a century before, while offering an unfortunately conventional and easily disproven account of Standard Oil and the early antitrust movement. At the same time, he is critical of Frederick Taylor and his top-down Taylorite management philosophy, which was espoused by early-20th century thinkers from Rockefeller’s nemesis Ida Tarbell to President Woodrow Wilson.

Freedman doesn’t go into detail about this, but Taylorist thinking grew out of the German Historicist school. Its regimented, top-down ethos inspired much fascist and corporatist public policy, most openly by Mussolini. More bottom-up inclined thinkers such as Mises and Hayek both grew up in Austria when German Historicism was at its peak, and developed their emergent-order liberalism in part as a direct reaction against the Historical School.

Later sections introduce underappreciated figures such as Henry Simon, William Riker (the political scientist, not the Star Trek: The Next Generation character), and Mancur Olson. Freedman also discusses the role of game theory in corporate, military, and government strategies in the post-war era.

Blocking the T-Mobile-Sprint Merger: Competition, Rent-Seeking, and Uncertainty

Nationwide 5G networks are coming. They will expand possibilities for everything from smartphone applications to GPS to streaming video, and will enable new technologies that have not yet been invented. President Trump wants the U.S. to be a world leader in 5G adoption. But his Justice Department’s antitrust division might hinder that goal by blocking the proposed merger between Sprint and T-Mobile.

The antitrust division’s rationale is that the deal would decrease the number of major wireless carriers from four to three. But my colleague Jessica Melugin argues that without the merger, the number of carriers might actually be two: “T-Mobile and Sprint will [need to] be able to combine their resources [in order to] stay competitive with Verizon and AT&T, and hopefully help the mobile communications industry in the United States win the race to build the first 5G network.” Together, they might survive. Apart, both might go under.

On the other hand, the rule of thumb is that 90 percent of mergers are failures, remember. This could well be the next AOL-Time Warner. Nobody knows how Sprint-T-Mobile would turn out, including the Justice Department, as well as the companies themselves. But unlike antitrust regulators, Sprint and T-Mobile have skin in the game, and thus a stronger incentive to make the right decision.

Then there is the rent-seeking angle. As my colleague Wayne Crews notes: “It’s also important to note that invoking antitrust laws in this case is de facto corporate welfare for Verizon and AT&T. It means they can stand pat rather than reacting to dynamic changes to the marketplace.”

Third, there is the uncertainty angle. There are no set criteria for what makes a merger legal or illegal. Regulators decide at their own discretion—and politics are often involved, as with President Trump’s recent unsuccessful attempt to block the AT&T-Time Warner merger (Time Warner owns CNN, which is often critical of Trump).

There are ways to measure market concentration, such as the Herfindahl-Hirschman Index. But its numbers are easy to manipulate to reach any conclusion—just define the relevant market however narrowly or broadly you want, and you can generate a number showing any desired degree of market concentration. The Federal Trade Commission has a set of merger guidelines, but they are not binding and can easily be ignored if politics or other merit-unrelated factors are more important at the moment.

This regulatory uncertainty has costs far beyond whatever happens with the Sprint-T-Mobile deal. Even if the merger goes through, and a merged T-Mobile-Sprint proves a viable 5G-era competitor, the fact that mergers are approved or denied at a whim will continue to have its chilling effect on companies far outside of technology or communications. For some companies, the upside is not worth the cost in legal fees, political engagement, and potential bad publicity. This is consumers’ loss, not just entrepreneurs’ and investors’.

For more reasons to be skeptical not just of the move to stop the Sprint-T-Mobile merger, but of antitrust regulation in general, see Wayne Crews’ and my just-released paper, “The Case against Antitrust Law: Ten Areas Where Antitrust Policy Can Move on from the Smokestack Era.”

New Study: The Case against Antitrust Law

Antitrust regulation is a complex, multifaceted issue. It brings together insights from law, economics, political science, history, philosophy, and other disciplines. Right now both political parties are ramping up their antitrust rhetoric, and it will likely be a live issue throughout the 2020 election cycle. A working understanding of how antitrust regulation works is important for understanding why it works so poorly, and should ultimately be abolished. To that end, Wayne Crews and I have a new study out, “The Case against Antitrust Law: Ten Areas Where Antitrust Policy Can Move on from the Smokestack Era.”

If you prefer the short version, here is a press release. We will also be running a series of blog posts hitting the main arguments. Often, a frequent drips-and-drabs approach to learning an issue is as effective as one intensive sitting. The initial posts will sketch out broader themes of antitrust regulation and the main sides of the debate. After that, we will go through the items on our “Terrible Ten” list of failed antitrust policies that should be abolished.

For additional CEI antitrust resources, we also have a dedicated landing page at antitrust.cei.org. Wayne’s and my full study is here.

Dominick Armentano – Antitrust: The Case for Repeal

Dominick Armentano – Antitrust: The Case for Repeal

A slim volume that is neither broad nor deep, but has its uses. It is a more strident, though more accessible younger sibling to Armentano’s more thorough Antitrust and Monopoly. It has some good arguments for abolishing antitrust regulation outright, but the shrill delivery makes the content less palatable. That is its own lesson.

Richard Posner – Antitrust Law, Second Edition

Richard Posner – Antitrust Law, Second Edition

A foundational text in modern antitrust regulation. From the 1890 Sherman Act up until about the late 1960s, antitrust policy was strictly for lawyers and politicians. Posner, though a lawyer, incorporated economic analysis into antitrust questions. This was a controversial departure at the time, and came to be called the Chicago School approach.

Unlike more populist analysts, Posner placed results above aesthetics. Do large market share, mergers, tying, charging high or low prices, and more cause consumer harm? If so, then antitrust enforcement is appropriate. If not, then not. It is an empirical question, not an emotional one.

The consumer welfare standard displaced the previous Brandeisian “big is bad” standard. Posner’s work is vulnerable to criticism on public choice grounds, and his command of economic analysis not perfect. But his influence has been largely positive, and greatly improved policy outcomes in an area badly in need of reform.

The story is not over, though. The Trump administration and progressive activists would both like to revive big is bad; the coming years will see who prevails in this next chapter.

On a personal note, back in college I once had lunch at the same table as Posner. This would have been around the time this book’s second edition came out, though I don’t recall it being discussed. The conversation mostly revolved around prescription drug reimportation regulations, a hot issue at the time. Had I been more knowledgeable about Posner’s place in the law-and-economics movement, I would have loved to pick his brain about improving antitrust policy and other legal areas.

Frank H. Knight – The Economic Organization

Frank H. Knight – The Economic Organization

A short introduction to the economic way of thinking, published in 1933 by the legendary University of Chicago professor. Despite its brevity, it contains deep insights on monopoly and competition, long- and short-term thinking, and the place of economics in a life well lived.