Robert E. Hall of Stanford and the Hoover Institution has won the 2026 Nobel Memorial Prize in Economic Sciences, sharing it with Michael Woodford of Columbia. The committee honored the two for rebuilding macroeconomic models on a microeconomic foundation, grounded in how households and firms actually behave, and for giving governments and central banks better tools for managing booms and busts.

That is the work that won the prize. But anyone who lived through the tax fights of the 1980s knows Hall for something else. In December 1981, he and his Hoover colleague Alvin Rabushka proposed in the Wall Street Journal that the federal income tax be replaced with a single low rate. Their plan, developed in their book The Flat Tax, set that rate at 19 percent. It exempted a generous family allowance so that low-income households paid little or nothing, and it taxed every dollar of income once and only once. Individuals and businesses could file on a form the size of a postcard.

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We’ve been writing about what we call “conservative socialism”—the growing willingness on the right to use government power to manage the economy. A new Wall Street Journal poll suggests the problem is bigger than we thought.

The Journal asked voters about more than 30 proposals now circulating in Washington and the states. Eighty-seven percent support capping prescription-drug prices. Seventy-nine percent would limit credit-card interest to 10 percent. Seventy-four percent favor capping child-care costs for working families, and 75 percent want to stop large institutional investors from buying up single-family homes.

These ideas no longer belong only to the progressive left. The 10 percent credit-card cap has Josh Hawley on the same side as Bernie Sanders, and The Journal suggests we are witnessing the emergence of a new bipartisan populism. Maybe so, though the label says little about the economics underneath.

Are conservatives are losing faith in markets just when America needs people who understand and appreciate them the most? The argument now too often starts with something unwelcome—high cost of prescription drugs, an expensive house, an American industry in trouble—and leaps straight to the conclusion that Washington should deliver a different result.

That’s a long way from the conservatism we grew up with. The conservatives who shaped our generation never thought that markets were perfect. But government, operating on politics and hunches, was decidedly imperfect. Prices carried information, incentives mattered, and scarcity didn’t go away because Congress disapproved of it. Government could shift costs onto someone else, but it couldn’t make those costs vanish. None of this sounds profound now, and that’s the problem. These used to be the working assumptions of conservative economic policy, and they’re slipping away.

Take the 10 percent credit-card cap. We would all much rather pay 10 percent on a credit-card balance than 25 percent. But that preference doesn’t tell us whether 10 percent makes sense as a legal ceiling.

Interest is the price of borrowing, and part of that price covers the chance the borrower won’t pay it back. Congress can forbid a lender from charging more than 10 percent. It can’t make the borrower any less of risk. So, some people now paying 20 or 25 percent will pay less, and many others will find the lender no longer willing to do business with them. The Journal itself notes that a 10 percent ceiling could lead card issuers to stop lending to lower-income borrowers who carry balances. That alone doesn’t settle the matter, but it shows the question is harder than whether 10 percent beats 25.

The same habit shows up across our economic politics. Houses cost too much, so keep institutional investors from buying them. Drugs cost too much, so cap the price on drugs (and why not on childcare, too?). Foreign competitors are hurting American manufacturers, so let’s impose tariffs. An industry is strategically important, so we should subsidize it. A company does something Washington dislikes, so the government takes a financial stake or attaches political conditions to how it operates.

Some government interventions may have a national security justification behind them. China’s predatory mercantilism sometimes forces us to protect ourselves with some elements of industrial policy—such as the ongoing public investment in the production of rare-earth minerals. Nor should “socialism” become a lazy insult for anything government does. Still, a shared assumption runs through these policies: when markets produce an outcome politicians of both parties dislike, government should swap it with the preferred result. That is what we mean by conservative socialism.

Conservative socialism thus doesn’t require nationalizing General Motors or putting bureaucrats in charge of steel mills. Modern government has subtler tools. It can subsidize some firms and tax others, shield favored industries from competition, set prices, limit who may buy certain assets, take stakes in private companies, and make regulatory approval depend on promises about jobs, output or investment. The companies stay private on paper, while more and more of their important decisions get made by politicians.

What strikes us as strange is watching conservatives adopt this outlook, given how much effort an earlier generation of them spent explaining its dangers.

Friedrich Hayek’s case against planning wasn’t that planners were always stupid or ill-intentioned. It was that no planner could ever hold the information needed to make all those decisions.

That knowledge is scattered across the whole economy, and prices are the efficient way it travels. Milton Friedman kept coming back to incentives—you can’t judge a policy by announcing what it’s supposed to do, because people, firms and consumers all respond to it, sometimes in ways that undo its purpose.

Judge Robert Bork made a similar argument about antitrust. In his view the field had turned into judges and academics deciding which economic arrangements they found desirable. He wanted to pull antitrust back to a plainer question to one simple metric—does a business deal benefit or harm consumers? We could use such intellectual discipline over policy again.

A high price doesn’t by itself prove anyone did anything wrong. Sometimes it does point to monopoly, and anticompetitive conduct should be prosecuted when the law and the facts support it. But prices also rise because of scarcity, higher demand, higher costs or greater risk. Until we know why a price is high, we’re in no position to say what government ought to do about it.

The poll includes a telling remark from Republican pollster Adam Geller. What many of these populist proposals share, he says, is the perception that some large institution is standing between the voter and a “fair price.”

But what’s the fair price of a mortgage loan, or of an apartment in Manhattan? What’s a fair interest rate on a card issued to someone with bad credit, but hoping to start a small business that would quickly pay off the interest? What’s the fair price of a drug that took several billion dollars to develop and costs pennies a dose to make? Some of those questions may have good answers. We doubt that handing them to politicians improves the odds of finding them.

Michael Strain of the American Enterprise Institute makes what may be the article’s most trenchant point: “When conservatives become undisciplined by the need to respect market forces, they end up sounding a lot like progressive Democrats.”

None of this means conservatives should ignore the problems that made populism appealing. Housing really is out of reach for many Americans. Medical care is extraordinarily expensive, and credit-card debt can crush a family. People are right to ask why a country this prosperous can’t do better. Conservatives need to return to the answers to these problems they already have.

Over five decades of deep investment in free-market and conservative think tanks, the right has developed detailed, market-based solutions to the high costs of housing (clear the red tape to build more houses), tuition (quit subsidizing bureaucracies like that of Stanford University, which has more administrators than undergraduates), healthcare (put the consumer in charge and make providers compete), and other essential goods. Yet the Republican Party has walked away from this heritage of sound policies. A particularly powerful wedge issue for Republicans is bringing competition to failing public schools. We won’t belabor these issues here, but any one of these policy approaches would appeal to Americans’ common sense and put the Democrats on their back heels.

There’s danger in Republicans rejecting their intellectual heritage. Once conservatives accept that Washington should manage economic outcomes, the fight is no longer over whether government should have that power, only over who gets to wield it. Conservatives may want tariffs, manufacturing subsidies or limits on institutional investors today; progressives have a list of their own, and the machinery serves either side equally well. Conservatives used to say it often: don’t hand government a power you wouldn’t trust your opponents with. The advice still holds.

Late in The Journal piece, Democratic pollster Evan Roth Smith says voters have “no interest in entertaining the point of view of traditional political economics, because it has failed them entirely.” Conservatives would be foolish to wave that anger away. If millions of Americans think the economy has stopped working for them, telling them to go read Milton Friedman won’t do as a political program. Neither will pretending Friedman was wrong about incentives.

Conservatives need candid, no-BS answers for people who can’t afford a house, who lie awake over medical bills, and who suspect their children will struggle harder for a middle-class life than they did. Borrowing the left’s economic assumptions and putting conservative politicians in charge of carrying them out isn’t that answer. Whatever we called it, it would be central planning, just under new management.

A final point: conservative socialism is doomed to fail on two counts. If socialism is the answer, then why not go with politicians who have always been the real deal? One of us once asked a veteran political consultant on the right why he wasn’t supporting a liberal Republican against his radically liberal opponent? He replied, “I don’t like to drink socialism, but if I ever do, I would like it neat.” The second problem is that when conservative socialism is actually tried, it too will eventually run out of other people’s money.

It takes some ingenuity to turn a dispute over White House press credentials into an antitrust investigation. The Trump Justice Department has managed it. ABC, CBS, CNN, NBC, and Fox News are under investigation for possibly violating the Sherman Act because, for four days in September, they suspended the shared television pool that covers the president.

The facts are simple. On September 18, the White House barred CNN, MS NOW, and Politico from its grounds. When the administration then kept CNN from its scheduled pool assignment, the five networks that share pool duty stopped providing the joint feed. They did not stop covering the president; each continued to report on him, and smaller outlets supplied some footage. A federal judge temporarily blocked the ban on September 24. The pool resumed the next day, once the White House approved CNN’s credentials for its turn in the rotation.

The suspension had a cost: there was no pooled video of President Trump’s meeting with Xi Jinping. And the Justice Department, which sent the networks letters last week requesting their internal communications about pool decisions, has stated its theory. “Group boycotts among commercial competitors can violate the Sherman Act,” said spokeswoman Emily Covington, who added that the networks had “proudly” boycotted.

Group boycotts can violate the Sherman Act. The question is whether this one did.

The Sherman Act prohibits agreements among competitors that unreasonably restrain trade. Price-fixing, market allocation, and certain concerted refusals to deal are the familiar examples. The law does not forbid competitors from agreeing about anything at all, and it does not license the government to investigate every collective act that displeases the president.

The department’s best precedent is FTC v. Superior Court Trial Lawyers Association (1990). Criminal defense lawyers in Washington refused to accept new court appointments until the District raised their fees. They called it political protest. The Supreme Court called it horizontal price-fixing and applied the per se rule, which meant the government did not have to prove the lawyers had market power or that competition actually suffered. It also rejected their First Amendment defense.

This is the networks’ real problem, and it should be faced squarely. Competitors jointly withheld a service, and less pooled coverage of the president resulted. If Trial Lawyers governs, asking the government to identify a competitive injury is beside the point, because the per se rule presumes one.

The objection lands closer to home than that. To reject the market-power requirement, the Court relied on my father. It cited The Antitrust Paradox for the warning that letting small conspirators prove they lacked power would drag market definition into every price-fixing case. He was right, and I do not retreat from it. But his argument was about cartels that fix prices, where the agreement itself reveals what the parties are after. It says nothing about competitors who pause a joint service without touching price.

It does not govern, for two reasons.

The first is that this was not price-fixing. In a footnote, the Trial Lawyers majority stressed that the case involved horizontal price-fixing, not merely a boycott, and acknowledged that some arrangements labeled “group boycotts” may not merit per se condemnation. The boycotts it set aside were nonprice restraints. The networks’ suspension is one. They sought no higher advertising rates, no division of viewers and no exclusion of a rival. They were objecting to the exclusion of a rival.

Their purpose matters for the constitutional question too. The same opinion turned away the lawyers’ First Amendment defense by distinguishing NAACP v. Claiborne Hardware Co. (1982), in which the Court protected a boycott of white merchants in Port Gibson, Mississippi, by Black residents seeking equal treatment. As Trial Lawyers described them, those boycotters sought nothing for themselves; the lawyers sought higher pay. The networks sit on the Claiborne side of that line.

The second is what was suspended. The pool is itself an agreement among competitors: rivals splitting the cost of a camera crew and sharing the footage. Arrangements like that, which make a product possible rather than suppress one, are judged under the rule of reason, as the Court held of blanket music licenses in Broadcast Music v. CBS (1979). A decision by venture partners about when to operate their venture is not a naked restraint. Under the rule of reason, the government must show actual harm to competition. Here the networks kept covering the president individually, other outlets filled gaps, and the interruption lasted four days.

So, what was the competitive injury? Did the networks raise prices to advertisers or carve up viewers? Did their agreement give them power they could use against the public? The Justice Department has not said.

None of this makes the press exempt from antitrust law. Associated Press v. United States (1945) settled that, and fittingly it concerned a news-sharing cooperative whose members used it to shut out competitors. If these networks had fixed advertising rates or excluded rivals, being news organizations would not save them. But a pause in a shared service is not automatically an antitrust offense, and the Sherman Act does not oblige a broadcaster to cover an event because the government thinks the public should see it. When the subject is a collective protest over press access, Claiborne counsels more caution from investigators, not less.

My father spent much of his professional life arguing that antitrust laws should protect competition and consumer welfare, not particular competitors, or unrelated political goals. He distrusted every attempt to make it an instrument for whatever social or political ends happened to be fashionable. Conservatives have spent years making that complaint about progressive enforcers, often correctly. It applies just as much to a Republican Justice Department. We ought to mean it.

The temptation is not new. In 1971, Richard Nixon was recorded telling an aide that the threat of antitrust action was the best way to keep the networks in line, and his Justice Department sued them the next year. Bruce Brown of the Reporters Committee for Freedom of the Press calls this probe a likely pretext for obtaining the networks’ internal records. Whether that is its purpose remains to be shown. But when no competitive injury has been articulated, the question is hard to avoid.

Perhaps the networks were being self-important. Television executives are not invariably models of judgment, and it would hardly be the first time journalists mistook a quarrel with a president for a historic defense of freedom. None of that makes it an antitrust violation.

President Trump has not suffered from a shortage of television exposure. A president who objects to the networks is free to denounce their coverage, refuse their interviews or deliver another long discourse on the failings of the American press, confident that someone will broadcast it. What he should not expect is an antitrust investigation every time they decline to play along. One can almost imagine the indictment: The defendants, acting in concert and with malice aforethought, deprived the president of the shared camera feed to which he had become accustomed.

If the Antitrust Division has evidence of a genuine restraint on competition, it should produce it. Otherwise, its lawyers have better things to do than referee a schoolyard quarrel over who gets to play with the cameras.

Robert Reich’s Ten Reforms—and the Question He Forgot to Ask

Robert Reich has a plan to fix American democracy. He offers ten “necessary structural reforms,” ranging from Supreme Court term limits and campaign-finance restrictions to a wealth tax and abolition of the Electoral College.

Some of the problems he identifies are real. Members of Congress probably shouldn’t be trading individual stocks. Racial discrimination in voting should be prosecuted. Presidents should not be ordering the Justice Department to prosecute their political enemies.

But the further I got into Reich’s list, the more I noticed something odd. For a man worried about the abuse of power, he has remarkable faith in government power—as long as it is lodged in the right hands.

Consider the Justice Department. There are good reasons to keep presidents out of individual criminal prosecutions. We have long relied on norms intended to do exactly that. But DOJ is still part of the executive branch. Make federal prosecutors effectively independent of presidential supervision and you haven’t eliminated political power. You have handed more of it to prosecutors. That presents its own problems.

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California has decided that one Sherman Act is not enough.

On September 30, Gov. Gavin Newsom signed AB 1776, the COMPETE Act, the most significant change to California antitrust law in decades. Beginning January 1, California will have its own prohibition on monopolization and monopsonization. The Cartwright Act has generally required an agreement between two or more parties, so a single dominant firm accused of monopolistic conduct usually had to be pursued under Section 2 of the federal Sherman Act. The new law closes that gap.

Attorney General Rob Bonta calls the law an important new tool against anticompetitive conduct by a single firm, and in principle I have no quarrel with that. Federal law has prohibited monopolization since 1890, and the consumer welfare standard has never given monopolists license to destroy competition. The hard question is which conduct by a successful company the law should forbid, and on that question California is striking out on its own.

Federal courts have spent more than a century trying to tell apart firms that win monopoly power by competing well from those that acquire or preserve it by suppressing competition. It may be the hardest problem in antitrust, because the two often look alike. A company invents a better product and its competitors lose customers. A retailer cuts prices and weaker stores close. A technology company integrates two products, and the businesses that supplied one of them disappear. A manufacturer reaches economies of scale its smaller rivals cannot match. In each case competitors have plainly been hurt, and in each case competition may have worked exactly as it should.

That distinction was at the center of the antitrust revolution associated with my father, Robert Bork: the law protects competition, not competitors. Competition makes businesses fight for customers, and it promises none of them a place in the market.

The final COMPETE Act recognizes much of this and is considerably more restrained than earlier versions. The Legislature dropped the proposed private right of action. Only the attorney general and district attorneys can enforce the new provisions, so there will be no treble-damage suits under them. The law requires proof of “substantial market power.” It no longer contains earlier provisions aimed directly at federal rules on predatory pricing, refusals to deal and multi-sided platforms. And it expressly recognizes that a firm may lawfully obtain and maintain market power through superior products, services or business acumen. Critics of the law, myself included, should acknowledge these improvements.

They also make what remains more interesting.

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In the live-music business, Ticketmaster has become the anti-hero. As Taylor Swift might put it, “It’s me, hi”—the villain everyone expects to find whenever concert tickets are expensive, scarce or difficult to buy.

The company’s reputation is certainly not helped by the experience of watching a reasonably priced ticket swell during checkout, spending an evening trapped in an online queue, or discovering that hundreds of tickets to a supposedly sold-out show have appeared on resale sites at three times face value. There is plenty of bad blood between Ticketmaster and its customers.

Consumer frustration, however, is not an antitrust violation. Neither is corporate size, vertical integration or an irritating service fee. That distinction is in danger of disappearing as a coalition of state attorneys general seeks damages and potentially the separation of Live Nation from Ticketmaster.

The case began in 2024, when the Justice Department, dozens of states and the District of Columbia accused Live Nation of controlling too much of the live-entertainment business, from concert promotion and amphitheaters to artist relationships and primary ticketing. The government depicted the company as a mastermind operating a self-reinforcing monopoly machine in which control of one part of the concert business produced dominance in every other part.

Before trial, U.S. District Judge Arun Subramanian found a considerable blank space in some of the government’s case. He rejected several proposed markets, excluded portions of the government’s expert testimony and dismissed some claims. What survived centered on Ticketmaster’s position in primary ticketing for major concert venues, Live Nation’s control of large amphitheaters, and allegations that artists seeking to use those amphitheaters were effectively required to buy Live Nation’s promotion services.

Shortly after the trial began in March 2026, the Trump Justice Department announced a proposed consent decree with Live Nation. It is not yet a final judgment; it remains subject to court approval under the Tunney Act, although Live Nation is already bound by its terms under an interim stipulation.

The proposed decree would require Ticketmaster to create technology allowing major venues using its back-end system to distribute primary tickets through competing marketplaces. It would limit fully exclusive ticketing contracts to four years, require Ticketmaster to offer nonexclusive alternatives, prohibit retaliation and content steering, open Live Nation amphitheaters to competing promoters, and cap Ticketmaster service fees at 15 percent for tickets sold at those amphitheaters. It would also terminate Ticketmaster’s agreement with Oak View Group, impose information firewalls, authorize extensive monitoring, and require Live Nation to terminate or modify arrangements that give it control over 13 large amphitheaters designated as Divestiture Venues. The decree would last eight years and permit penalties of $5 million for each violation involving a major concert venue.

That is not a getaway car. It is substantial relief aimed at the conduct the government said obstructed competition. But it is important not to romanticize how the agreement came about.

The Wall Street Journal has reported that President Trump personally directed a senior Justice Department official to settle the case after White House meetings involving Live Nation. The report also described the involvement of lawyers and political figures close to the president. Those allegations have not been adjudicated, but they deserve scrutiny. They prevent defenders of the company from treating the proposed decree as conclusive proof that career antitrust officials independently decided a breakup was unnecessary.

The political provenance of a settlement does not answer the economic question, however. A remedy can emerge from an irregular process and still be better for consumers than the alternatives. The court must decide whether the decree restores competition, and the states must explain what additional consumer benefit would come from dismantling the company.

More than 30 state and district plaintiffs continued the trial after the Justice Department withdrew. On April 15, a unanimous jury found Live Nation and Ticketmaster liable on every federal and state claim submitted to it. The jury concluded that Ticketmaster had unlawfully maintained monopoly power in primary ticketing at major concert venues, that Live Nation had monopolized the use of large amphitheaters, and that it had unlawfully tied access to those venues to its promotion services. It also found that qualifying consumers in 22 states had been overcharged by $1.72 for each covered primary concert ticket.

Live Nation has asked Judge Subramanian to set aside the verdict or grant a new trial, and it has challenged the expert analysis behind the damages award. If those motions fail, the company has said it will appeal. The separate proceeding on damages and equitable relief, including any structural remedy, is expected to extend into 2027. No breakup has been ordered.

The states may be tempted to say, “Look What You Made Me Do.” Yet a liability verdict does not automatically establish that divestiture is the proper remedy. Before separating companies the federal government allowed to merge 16 years ago, the court should ask what a breakup would accomplish that the proposed conduct restrictions would not.

It is not enough to demonstrate that Live Nation is large or that Ticketmaster has a high share of primary ticketing at major venues. The Sherman Act does not prohibit monopoly in the colloquial sense. It prohibits obtaining or maintaining monopoly power through exclusionary conduct. The remedy should stop that conduct and restore competition without sacrificing efficiencies that benefit consumers.

Live Nation’s vertically integrated structure should not itself be presumed unlawful. Concert promotion, venue management and ticketing are complementary businesses. Combining them can lower coordination costs, spread the considerable risks of concert promotion, finance tours, support investment in ticketing technology and make national and international tours easier to organize. The government must distinguish those efficiencies from genuine exclusion rather than assume that every advantage produced by integration is unfair.

Consider Ticketmaster’s exclusive contracts with venues. To an ordinary consumer, “exclusive” sounds sinister. But venues generally prefer one integrated ticketing and box-office system. They solicit bids and select one provider, much as a retailer chooses a single point-of-sale system. Ticketing companies compete through technology, customer support, upfront payments and divisions of service-fee revenue. Competition for an exclusive contract is still competition, and exclusivity can force bidders to make their best offers. Judge Subramanian himself recognized that exclusive agreements can produce substantial procompetitive benefits.

The case has also been distorted by the folklore surrounding ticket prices. Artists and their representatives generally set or approve face prices and decide whether to use tools such as dynamic pricing. Venues frequently receive a substantial portion of ticketing fees. Ticketmaster is visible at the moment of purchase, so it absorbs anger for decisions made throughout the concert business.

Enormous demand for a limited number of seats also creates scarcity that no antitrust decree can eliminate. Separating Ticketmaster from Live Nation will not create another 50,000 seats for a Taylor Swift concert. Even in the states’ wildest dreams, a federal judge cannot repeal supply and demand.

The jury’s damages finding illustrates the difference between popular anger and proven antitrust injury. Consumers may encounter service charges of $20, $30 or more, but the jury attributed $1.72 per covered ticket to the unlawful conduct. That amount can become substantial when multiplied across millions of transactions and then trebled. It does not establish that Ticketmaster’s monopoly explains the entire cost of attending a concert, and it applies only to a defined group of purchases in 22 states, not to every ticket Ticketmaster sold.

Live Nation cannot simply shake off the evidence against it. The 2010 merger decree prohibited retaliation against venues choosing competing ticketing services, and the Justice Department strengthened that decree in 2020 after alleging repeated violations. A unanimous jury has now found exclusionary conduct after hearing weeks of evidence. Any credible defense must acknowledge those facts.

An injunction and a breakup remain very different things. Targeted relief can prohibit retaliation, coercive tying and unnecessarily restrictive contracts while preserving the efficiencies of Live Nation’s integrated business. The proposed federal decree attempts to do that. Its terms, rather than the politics surrounding its negotiation, should be measured against the consumer welfare standard.

The states’ victory entitles them to relief, but not necessarily to the most dramatic relief imaginable. Antitrust remedies should restore competition, not reward prosecutors or redesign an industry according to an idealized structure. A court considering divestiture should require evidence that separation will improve prices, output, innovation or service quality. It should also weigh the risk that dismantling the company will increase costs, disrupt tours, reduce investment and leave fans facing the same scarcity and resale problems under different corporate logos.

Breakup advocates have been vague about their end game. Would an independent Ticketmaster stop charging fees? Would artists lower their prices? Would venues surrender their portion of the charges? Would brokers abandon the resale market? Would competing platforms manage enormous on-sales more effectively? The verdict does not answer those questions, and neither does the public’s well-earned dislike of Ticketmaster.

Live Nation may have crossed legal lines, and substantial relief is warranted unless the verdict is overturned. But the law still requires a remedy connected to the competitive harm that was proved. A breakup could become a cruel summer for the company while doing little for concertgoers.

Live Nation may deserve an injunction. It has not yet been shown to deserve dismemberment. Before the states pursue their wildest dreams of breaking it apart, they should prove that their remedy, and not merely their verdict, will leave consumers better off.

California and eleven other states have settled their antitrust challenge to Paramount Skydance’s acquisition of Warner Bros. Discovery. On September 30, U.S. District Judge Araceli Martínez-Olguín approved the consent decree without adding conditions. The companies expect to close the roughly $110 billion transaction, including debt, on October 6. The settlement shows plainly what state antitrust enforcement is turning into.

Under the decree, the merged company must release at least 30 theatrical films in each of the first two years and 32 in each of the next three. Each year’s slate must include at least four independent films, and at least 20 percent of releases must have budgets of $50 million or more. Paramount must spend $300 million more each year on domestic production than it spent in 2025, at least $1.5 billion over five years. It must also put $5 million a year into a fund to acquire independent films.

If the company misses the annual quota, it gets six months to make up the shortfall. It owes $30 million for every missing picture either way. Half of that goes to Hollywood union health and retirement funds, $12 million goes to the Motion Picture & Television Fund, and $3 million goes to a National Association of Attorneys General fund for antitrust enforcement. If the shortfall isn’t cured, Paramount must sell its 49 percent stake in Miramax. The decree also requires $9.5 million a year for workforce training, career development, film programs and community arts organizations. It bars the sale of either studio lot, and it binds the company to honor existing collective-bargaining agreements and bargain in good faith with entertainment unions.

The decree reaches cable and news as well. For five years, the company must negotiate carriage for the legacy Paramount and Warner basic cable channels separately, with information firewalls between them. A News Editorial Independence Board of five journalists, appointed by the company’s board, will set editorial principles for CBS News and CNN. A monitoring trustee, an internal compliance monitor and a committee of up to five plaintiff states will oversee the rest.

The judge’s approval makes all of this enforceable. It does not tell us what most of it has to do with protecting competition and consumers.

Some provisions do connect to the states’ complaint. Separate cable negotiations and firewalls respond to the allegation that the combined company would have too much leverage in licensing basic cable channels. A release minimum responds, at least on its face, to the claim that combining two studios would reduce theatrical output. These are behavioral remedies rather than structural ones, and they may prove cumbersome, but antitrust lawyers would recognize them.

The other terms are harder to defend that way. Domestic production spending, payments to an industry charity, union benefits, job training, arts grants, studio-lot guarantees and a court-ordered editorial board do not preserve competition in any economically defined market. They advance state economic, labor and media policy. Whatever their merits, those decisions ordinarily belong to legislatures, not to attorneys general bargaining over permission to close a merger.

That is the fifty-state antitrust paradox. State attorneys general can correct federal mistakes and vindicate real local injuries. But a handful of states can also use the threat of delay to write rules for an entire industry, steer benefits to favored constituencies and impose their preferences on consumers in other states. Until now that was mostly a theoretical worry. Paramount has turned it into an enforceable federal consent decree.

Corporate antitrust lawyers used to work from a simple map. When national companies merged, the Federal Trade Commission or the Justice Department made the decision that mattered. State attorneys general might join the investigation, contribute local knowledge, seek damages for their residents or press for extra terms. Washington led and the states mostly followed.

That map no longer works. Recent legal commentary has carried headlines like “State Antitrust Enforcement Enters a New Era” and “The State Antitrust Risk You Are Not Pricing Into Your Deal.” State attorneys general have built up the staff, money, information and procedural tools to run their own antitrust policy. They increasingly use them even after federal regulators have settled a case or cleared a deal.

The result is an open argument over who makes national competition policy. Colorado Attorney General Phil Weiser describes state enforcement as a necessary check when Washington is unwilling, mistaken or politically compromised. Associate Attorney General Stanley Woodward answered him two days later in a Fordham speech titled “Antitrust Federalism.” Woodward does not deny that states have a role. His argument is that Congress gave federal enforcers the lead when a transaction affects the whole country. He put it directly: “When a merger harms local markets, we want the states in the room. When it is national, we expect to lead.” The law needs to draw that line more clearly.

State antitrust authority is not new. States have long been able to sue under their own laws and, in some circumstances, under federal law. The Hart-Scott-Rodino Act of 1976 authorized state attorneys general to seek damages on behalf of residents. In 1990, the Supreme Court held unanimously in California v. American Stores that a state suing under Section 16 of the Clayton Act could seek divestiture. Federal clearance of a merger is not a judicial judgment and has never protected a transaction from a separate public or private challenge.

What has changed is the states’ ability to spot deals early, litigate on their own schedule and turn local priorities into national consequences. In 2022, the State Antitrust Enforcement Venue Act exempted federal antitrust cases brought by state attorneys general from multidistrict-litigation consolidation. Washington and Colorado have adopted a uniform premerger-notification law that gives their attorneys general copies of federal Hart-Scott-Rodino filings when a deal has enough connection to the state. California has passed its own version, which takes effect in 2027. These laws generally impose no second waiting period and require no state approval. They give state enforcers early notice, which they used to lack.

The states have also built the capacity to act on that notice. New Jersey created a dedicated Antitrust Litigation and Competition Enforcement Section. Oregon expanded its antitrust unit. State enforcers share expertise, hire outside counsel for hard cases and form coalitions that can match the federal government in litigation. A July 2026 Skadden review of the National Association of Attorneys General database counted seven state antitrust actions already filed that year, more than in either of the two preceding full years.

Paramount shows the new arrangement at full strength. The Justice Department spent eight months reviewing the acquisition and collected more than two million documents from more than 80 custodians. Under company waivers, state offices attended the department’s depositions and shared information with it. On June 12, the department issued an unusually detailed statement concluding that the merger was unlikely to harm consumers in streaming, linear television or theatrical distribution and would likely increase competition across the media industry.

A month later, California and eleven other states sued under Section 7 of the same Clayton Act. They alleged that the combined company would hold about 27 percent of wide-release theatrical distribution and of basic-cable licensing, and roughly 30 percent of a proposed market for anticipated blockbusters. The judge temporarily barred the deal from closing, and Paramount then agreed not to close while the case proceeded toward a March 2027 trial. Meanwhile, the merger agreement required Paramount to pay Warner shareholders a “ticking fee” of 25 cents per share per quarter once September 30 passed, roughly $7 million a day.

That clock gave the states enormous leverage. California officials also worried that Paramount might move production and jobs out of the state. In the resulting bargain, Paramount keeps its cable channels and completes the merger. California gets production spending and protection for its studio infrastructure. Unions and arts organizations get money. The state coalition gets five years of oversight, and the attorneys general get reimbursement of up to $40 million in legal and expert fees plus a share of any penalties to fund future enforcement.

Consumers may benefit from some of this. More films could mean more choice, and separate cable negotiations may keep the merged company from using all its channels as one bargaining bloc. But an output quota is a crude substitute for competition. It counts pictures without asking whether audiences want them, whether they make economic sense, or whether new distributors and production technologies are making the old studio model less important. A commitment that looks sensible in 2026 may be obsolete well before the decree expires at the end of 2031.

The editorial board is further still from the economic injury the states pleaded. Protecting the independence of CNN and CBS News may be a legitimate public concern. But the board exists only because state prosecutors wrote it into a court order governing two national news organizations. Colorado and Washington, both plaintiffs, declined to sign on to those terms. Antitrust law gives no one a general commission to supervise political balance, journalistic objectivity or newsroom management. And a government-negotiated board meant to protect editorial independence invites an awkward question: independence from whom?

The penalty provision is circular. A company accused of threatening competition must pay $3 million per missing film into a fund that helps attorneys general bring more antitrust cases. The rest goes to union benefit plans and an industry charity. The penalty may encourage compliance, but where the money goes shows that the settlement serves institutional and local interests alongside whatever it does for moviegoers.

Iowa and Montana have asked the Supreme Court for permission to sue the twelve plaintiff states directly. They argue that a minority of states effectively vetoed a transaction that the United States, the other thirty-eight states and regulators abroad declined to challenge. The settlement has probably made that original-jurisdiction action moot. California itself told the Court that once the decree took effect, Iowa and Montana would have everything they asked for. But the filing still matters. It shows that state antitrust enforcement has become powerful enough to set states against one another over who speaks for consumers nationwide.

Woodward’s speech lays out the legal structure underneath that dispute. Section 15 of the Clayton Act lets the United States seek an injunction without proving injury to itself, because it represents the national public interest. States seeking federal injunctive relief proceed under Section 16 and, like private plaintiffs, must show threatened injury to their own interests. In 1914, Congress considered and rejected a proposal to let state attorneys general enforce federal antitrust law in the name of the United States. The Hart-Scott-Rodino Act later gave premerger notice and a preclosing review period to two federal agencies, not fifty state offices.

These distinctions do not strip states of concurrent authority. They show that Congress assigned different roles to different sovereigns. A state represents the interests of its own citizens. The United States has to weigh costs and benefits for the whole country, especially when a transaction’s effects fall unevenly. Woodward goes back to the Articles of Confederation to make the point: the federal commerce power was partly the Framers’ answer to states pursuing conflicting economic policies at one another’s expense. Letting one coalition decide the fate of an indivisible national transaction brings back that coordination problem.

Nobody should treat a Justice Department clearance as a papal bull. Federal agencies make mistakes, bend to politics and sometimes settle too cheaply. States must remain free to challenge a deal when they can prove competitive injury. But state plaintiffs should not act as though a contrary national investigation never happened. The Paramount states had access to much of the same record and invoked the same federal statute. The settlement points to no economic error in the federal analysis. It replaces adjudication with a five-year regulatory program whose benefits go mainly to California and the enforcing states.

Live Nation is a useful counterexample. The Justice Department, joined by a large coalition of states, accused Live Nation and Ticketmaster of monopolizing parts of the live-entertainment business. A week into trial, the department settled. Thirty-three states and the District of Columbia refused to go along and kept litigating. In April, a jury found Live Nation and Ticketmaster liable on the states’ claims. Whatever remedy the court adopts, the verdict shows why independent state authority matters. A federal settlement is not the same thing as consumer protection, and states sometimes carry a sound case to judgment when Washington will not.

The consumer welfare standard supplies the discipline this requires. For nearly half a century it has tied antitrust enforcement to economic evidence and administrable rules. My father, Robert Bork, popularized it. It was never a demand for weak enforcement. It asked enforcers to protect competition and consumers rather than favored competitors or political constituencies. Antitrust should not be used to preserve a preferred number of jobs, set an annual movie slate, fund local programs or police speech unless those measures directly remedy proven harm to competition.

The political danger runs in both directions. Democratic attorneys general may use antitrust to pursue media, technology or labor goals. Republican attorneys general have sued asset managers, claiming their climate-related coordination reduced coal output and raised energy prices. Either theory might describe real competitive harm. Neither deserves a presumption of validity because its politics are congenial. Prices, output, quality, innovation and consumer choice should decide cases, not the defendant’s identity or who is applauding from the sidelines.

State enforcement should stay. What it needs is a clear line between local competitive injury and national policymaking, and more discipline when state action has nationwide effects. States that challenge a merger after a reasoned federal clearance should publish their economic case: the relevant market, the injury to their residents, what the federal analysis missed and why a nationwide remedy is needed. A federal conclusion should not confer immunity, but courts should give a fully explained federal determination appropriate weight. Time-sensitive mergers need prompt review, and judges should weigh the actual cost of delay when setting schedules, bonds and interim relief.

The same method shows up outside antitrust, which is why the legal theory matters less than the technique. In August, 51 attorneys general, Republicans and Democrats alike, settled consumer-protection and children’s-privacy claims against Meta for up to $17.1 billion and a nationwide code for minors on Facebook and Instagram. This was no minority veto; the coalition was nearly unanimous. But Meta’s payment rises from about $12.2 billion to the full amount only if TikTok, YouTube and Snapchat accept comparable terms. That makes one consent decree a template for an industry standard no legislature enacted. It also has a competition cost. Meta can absorb a dense compliance regime that a smaller challenger might not, so a settlement meant to discipline the dominant firm can end up protecting it.

Settlements need discipline too. Every provision should be tied to the competitive injury alleged, with an explanation of how it protects consumers. Settlement money should not finance the offices that negotiated it. When an attorney general starts writing detailed prospective rules for an entire industry, the legislature should take over. Rules of general application belong in statutes and regulations, not in consent decrees negotiated under multibillion-dollar pressure.

Congress may eventually need to draw a brighter line. Woodward notes proposals to assign large national transactions exclusively to federal enforcers and local ones to the states. Judge Richard Posner went further and argued for curtailing state antitrust authority in favor of a single national enforcer. That may go too far. But after Paramount, it is hard to keep assuming that more enforcers always mean more protection. Sometimes they do. Sometimes they mean more politics, more delay and more economic regulation made through litigation.

State antitrust enforcement earns its keep when it catches federal mistakes and protects consumers from real competitive harm. It becomes dangerous when redundancy turns into multiplication and multiplication into a veto. The Paramount settlement does more than let a merger proceed. It sets movie quotas, directs domestic investment, sends money to favored institutions and puts two newsrooms under an oversight structure negotiated by state prosecutors. That is a great deal of policy to extract from Section 7 of the Clayton Act. Fifty enforcers can be a safeguard, but they should all answer to the same test: did the conduct harm competition and consumers, and does the remedy address that harm? A court order can make a consent decree binding. It cannot turn movie quotas, labor subsidies, arts grants and newsroom governance into consumer welfare.

We’re very grateful to all our readers and subscribers. This battle, for the soul of the GOP and indeed of the country, is important to us as lovers of liberty. Paradoxically Speaking is growing rapidly—and it’s no wonder. Practically no one else on Substack is discussing Big Government from our perspective. We wish we had more competition than we do.

We’re particularly grateful to our paid subscribers. Only because of that slice of our readership is any of this possible. Please do support us if you can.

As a token of our gratitude, we are launching an exclusive weekly feature for our paid subscribers. Our most important articles we will always keep free, in hopes of reaching the widest possible set of open-minded people. But we also want to make sure that our generous paying supporters get something for their hard-earned dollar.

As such, I’ll be writing up my thoughts every week, typically on the news cycle. Enjoy!

Contents:

1. Amy Coney Barrett’s new book, Listening to the Law

2. What my father would think of the FTC’s recent actions

3. My thoughts on when democracy can become the enemy of liberty

Amy Coney Barrett Listens to the Law

There is a pleasing modesty to the title of Justice Amy Coney Barrett’s new book, Listening to the Law. Judges, particularly Supreme Court justices, spend a great deal of time speaking. Barrett wants us to remember that their first obligation is to listen.

Her book is part memoir, part civics lesson and part explanation of how she thinks judges should do their jobs. It is not a tell-all. Anyone looking for gossip about the justices, inside accounts of conference-room battles or hints about future cases will be disappointed. Barrett deliberately avoids all of that. What she gives us instead is considerably more useful: an accessible explanation of judicial restraint, textualism and originalism from a justice actually putting those ideas into practice.

The central idea is simple. Judges are not elected to make the world better according to their own lights. They are given authority to decide cases according to law. That requires a judge sometimes to reach a result she dislikes. If the Constitution leaves a question to the people and their elected representatives, the judge does not acquire jurisdiction merely because she thinks they have answered it badly.

Barrett’s discussion of originalism is especially good because she does not pretend that it is a machine into which one feeds history and out pops an indisputable answer. “I’m not an originalist because I think that history yields easy answers or prevents bad judging,” she writes. She is an originalist because she believes it is the right way to understand law.

Inevitably, I read those passages with my father in mind.

Read more

The Justice Department’s case against RealPage and several of the country’s largest apartment managers has popularized an ominous-sounding idea: algorithmic collusion. The worry is that software now does what businessmen used to do over lunch at the club. It finds out what rivals charge and quietly makes sure nobody undercuts anybody.

That may be what happened here. The government’s complaint, filed in 2024 and expanded early the next year to name six landlords, alleges that landlords fed RealPage nonpublic, competitively sensitive data. It says the software used that data to recommend rents to their competitors, and that some landlords talked pricing with one another along the way. RealPage denies it, and its settlement with the department contains no admission of wrongdoing. But if an agreement among competitors to stop competing can be proved, a computer’s involvement shouldn’t change the analysis much. Section 1 of the Sherman Act has covered that ground since 1890.

The trouble is that the argument has outgrown the case. California, New York, Connecticut and New Jersey have passed laws restricting algorithmic rent-setting, as have San Francisco, Philadelphia and other cities. Some of those laws reach well beyond the pooling of confidential data. Before the rest of the country follows, someone ought to ask the question that used to discipline antitrust enforcement: What happens to consumers?

Sellers have always tried to figure out what buyers will pay, and for most of history they weren’t very good at it. The merchant knew his regulars, kept an eye on the shop down the street and adjusted as best he could. Then came market research, then spreadsheets, then pricing models of growing sophistication. Today’s algorithms are the latest step in that progression. Mostly they are better than people at digesting a great deal of information quickly.

That is not obviously bad for consumers, and airlines show why. A seat becomes worthless the moment the plane pushes back from the gate, so carriers adjust fares constantly to fill planes. Travelers grumble, with some justification, when the fare to Orlando doubles over spring break. They rarely complain about the Tuesday fare that drops because the airline would rather sell a seat cheaply than fly it empty. The same system produces both.

Hotels price rooms the same way. Retailers mark down whatever isn’t moving, and ride-hailing apps raise fares when a rainstorm brings out more riders than there are drivers. None of this is mysterious. Prices are supposed to move when supply and demand move, and that is much of what makes a price system worth having. Software speeds up the process. Say a hotel sees that next weekend’s bookings are soft and cuts its rates, and the hotel across the street notices and matches. No one would call the second hotel a conspirator because its manager looked out the window. Replace both managers with programs that read publicly posted rates and respond within minutes, and the economics are unchanged. The response is faster and more precise, which frequently works to the customer’s advantage.

So far, the courts have agreed. Last year the Ninth Circuit threw out a suit claiming that Las Vegas hotels had conspired by licensing the same pricing software. It held that competitors’ independent decisions to use a common tool do not, by themselves, amount to an agreement.

Critics tend to dwell on the cases where the algorithm says to raise the price. But a tool that only ever pushed prices up would be of little use to anyone. A landlord with vacant units, an airline with empty seats and a hotel with unsold rooms all have strong reasons to cut prices until someone buys. Better information helps them find that number sooner.

This is why consumer welfare analysis matters. That an algorithm sometimes recommends a higher price proves very little; an auction does the same thing whenever two bidders want the same painting. The real question is what the challenged practice does to prices, output, quality and efficiency, taken together. Pricing software can help sellers spot weak demand and cut sooner. It can fill capacity that would otherwise sit idle, connect buyers and sellers who might never have found each other, and signal scarcity in a way that draws in new supply. None of that stops being true because the same tools can be abused.

There is a line here, and antitrust law is equipped to draw it. Competitors may not pour their confidential pricing data into a shared machine to accomplish together what they could not lawfully agree to do face to face. Routing the arrangement through software buys no immunity. The converse matters just as much. Firms that use similar tools have not thereby agreed to anything, even when they arrive at similar prices. Businesses in the same market face the same interest rates, wage pressures, regulations, weather and public information. It would be strange if they never reached similar conclusions.

The department’s own settlements suggest it grasps at least part of this. The RealPage decree is hardly a light touch: it can run seven years and comes with a court-appointed monitor. But it does not ban pricing software. It restricts RealPage to competitors’ nonpublic data that is at least a year old, keeps current lease data out of its models and strips out features alleged to have discouraged price cuts or aligned landlords’ prices. It also bars discussions of nonpublic market trends at RealPage’s user meetings. Whatever one thinks of those terms, they go after the alleged mechanism of coordination rather than computer-assisted pricing itself.

RealPage won’t be the last case of its kind. Artificial intelligence will make pricing tools far more capable, and firms will get better at forecasting demand and adjusting supply, inventory and prices in response. Regulators will be tempted to treat the resulting prices as suspect whenever they rise, or whenever competitors’ prices start to look alike.

Giving in to that temptation would repeat an old mistake. For much of the twentieth century, courts and enforcers condemned business practices that looked suspicious or that hurt particular competitors, often without asking whether consumers were any worse off. The consumer welfare standard replaced that habit with a harder question: What does the practice actually do to competition and consumers? Nothing about software justifies abandoning that question now.

If RealPage and its customers agreed to restrain competition, the government should prove it, and the law already provides the remedy. But where independent firms are simply using better tools to read the market and respond faster, antitrust has no business protecting consumers from the market itself.

California Attorney General Rob Bonta sued to stop Paramount Skydance’s $110 billion acquisition of Warner Bros. Discovery. Two months later, he agreed to let it proceed. The obvious question is who won. The answer is that both sides won, but they were no longer playing the same game. Paramount gets Warner Bros. without admitting that the merger violates the law. California gets five years of government direction over movie output, theatrical windows, domestic production, labor programs and newsroom governance. Paramount won the company. Bonta won the concessions. Antitrust lost its limiting principle.

The legal dispute began with an unusual disagreement among public enforcers. The Justice Department spent eight months investigating the acquisition. Several state attorneys general participated in that investigation, shared information with DOJ and attended depositions of company executives. After reviewing more than two million documents, the department concluded that the merger was unlikely to harm competition or consumers in streaming, linear television or the development, production and distribution of theatrical films.

The states were entitled to disagree. A month later, California and eleven others sued under Section 7 of the Clayton Act. They alleged that combining two major studios would reduce competition in wide-release and anticipated blockbuster movies and give the new company excessive bargaining power in licensing basic cable channels. The court entered a temporary restraining order. Paramount then agreed not to close while the litigation proceeded. Under the merger agreement, however, Paramount would owe Warner shareholders about $7 million for every day the transaction remained open after September 30. That clock gave Bonta considerable leverage.

The proposed consent decree converts that leverage into a remarkably detailed operating code for the new company. The merged studio must release at least 30 theatrical films in each of the first two years and 32 in each of the next three. Every annual slate must include at least four independent films, and 20 percent must be big-budget tentpoles. At least half must be produced or co-produced by the company. Qualifying films must remain exclusively in theaters for at least 45 days and off subscription streaming services for at least 90 days.

Missing the quota carries an extraordinary price: $30 million for every absent film, even if Paramount later cures the shortfall. Half goes to Hollywood labor health and retirement plans, 40 percent to the Motion Picture & Television Fund and 10 percent to a National Association of Attorneys General antitrust fund. Paramount then has six months to release the missing pictures. If it still falls short, it must divest Miramax.

Other provisions range well beyond the annual slate. Paramount must spend at least $300 million more each year on American productions than the two companies spent in 2025, an increase of at least $1.5 billion over five years. It must provide $47.5 million for workforce training, career development, educational film programs and community arts groups, plus $25 million for an independent-film acquisition fund. It must preserve both studio lots, honor existing collective-bargaining agreements and bargain in good faith with entertainment unions.

The decree even joins a campaign for new tax subsidies. If Congress enacts an uncapped federal film credit of at least 20 percent, the required domestic share of production rises. If California or New York then enacts an uncapped, stackable credit of at least 43 percent, the required share rises to 40 percent. Bonta says he will work with California legislators to uncap the state credit. A lawsuit brought under the Clayton Act has become part of an industrial-policy campaign financed by taxpayers.

Cable television receives more recognizable antitrust treatment. For five years, the legacy Paramount and Warner businesses must negotiate carriage agreements for their basic cable channels separately. Information firewalls will limit the use of one company’s confidential licensing information by the other, and the decree restricts tying the two channel portfolios together. An uncured material violation can require divestiture of BET, VH1, Comedy Central, Smithsonian, Destination America and Science. These provisions address the states’ allegation that the merged company could use its larger channel portfolio to extract higher prices from distributors.

News gets its own remedy. A five-member board of experienced journalists will oversee standards and editorial autonomy at CBS News and CNN. Paramount chooses the members, government officials may not approve them, and no more than two may belong to the same political party. The monitoring trustee is expressly barred from supervising news content. Those safeguards are sensible, but they underscore how strange the provision is. Two plaintiff states, Colorado and Washington, declined to join it. Nothing in an economically defined film or cable market gives state prosecutors a general commission to design the governance of national news organizations.

There are genuine antitrust remedies in this package. Separate cable negotiations, information firewalls and restrictions on theater terms respond directly to alleged bargaining leverage and higher prices. Film-output commitments, theatrical windows and access to studio libraries can at least be understood as efforts to prevent the reduction in output alleged in the complaint. The states also obtained serious enforcement machinery: an independent trustee, an internal compliance monitor, a five-state oversight committee and possible divestitures for future violations.

But the settlement’s central bargain is not structural. Bonta began by asking a court to preserve Paramount and Warner as independent competitors. He ended by allowing their combination and regulating the resulting company. There is no present divestiture of a major studio, streaming platform, cable portfolio or news network. Paramount admits no violation. The more candid description is that the company purchased regulatory certainty with a collection of behavioral commitments, while California traded its effort to stop the merger for an opportunity to govern it.

That makes the political pressure surrounding the settlement important. IATSE, the Directors Guild, Gov. Gavin Newsom, Los Angeles Mayor Karen Bass and eventually theater owners urged a quick resolution as the transaction remained frozen and production jobs appeared at risk. Bonta called Paramount’s possible departure from California blackmail. In the final bargain, Paramount gets the acquisition; California gets production spending and protection for its studio infrastructure; unions and community groups get money; and the attorneys general get five years of oversight and up to $40 million in reimbursed fees and costs.

The antitrust left was furious. Alvaro Bedoya of the American Economic Liberties Project accused billionaires of having “bribed, censored, and bullied their way to the top.” The Block the Merger coalition said Americans had been “trampled to benefit oligarch billionaires,” while Mark Ruffalo called the agreement a victory for Trump and his billionaire allies. Beneath the theatrical language was a valid point: the merger they wanted stopped will happen. More revealingly, opponents invoke billionaires, democracy, layoffs and journalism, while supporters point to jobs, union protections and local institutions. Those may be legitimate political concerns, but they provide no limiting principle for antitrust. Once a merger case becomes a negotiation over every consequence associated with a company, success means satisfying whichever constituencies reach the bargaining table.

So who won? Paramount won strategically. It will acquire Warner Bros. Discovery without an upfront structural sacrifice or an admission of wrongdoing. The company accepted substantial costs and restrictions, but evidently concluded that they were worth less than the transaction and the continuing cost of delay. Bonta won tactically and politically. He did not stop the merger he called illegal, but he extracted commitments the company would not otherwise have made and can present himself as the defender of Hollywood production, labor and theaters.

Consumers are the uncertain party. More films may mean more choice, separate cable negotiations may constrain bargaining power and theater protections may prevent some price increases. But an output quota is a poor substitute for competition. It counts pictures without asking whether audiences want them, whether they are economically viable or whether technology is changing the studio model. A commitment that appears sensible in 2026 may be obsolete well before the decree expires.

The consumer welfare standard would impose the discipline this settlement lacks. It does not require weak enforcement. It asks whether a transaction threatens competition and consumers, and whether the remedy addresses that threat. It does not authorize attorneys general to dictate an annual movie slate, promote tax credits, finance community programs or supervise national newsrooms merely because a merger gives them the leverage to demand those things.

Paramount got Warner Bros. Discovery. California got a five-year program for movies, labor, subsidies and newsrooms. Bonta won the press conference; Paramount won the merger; and antitrust lost its limiting principle.

I attended a chamber music concert in Charlottesville on Saturday night that began with Samuel Barber’s Adagio for Strings and ended with Beethoven’s Piano Trio in E-flat Major, Op. 70, No. 2. Between them came Steve Reich’s Different Trains, a 27-minute work for string quartet and prerecorded tape. The Barber was beautiful. The Beethoven was a delight. The Reich produced groans, visible restlessness and, eventually, departing audience members.

The three works did more than represent different periods and styles. They embodied almost incompatible ideas of what music is supposed to do. Barber reaches for the emotions through melody and mounting harmonic tension. Beethoven gives us invention, wit, and the pleasure of hearing instruments converse. Reich uses repetition, sampled speech and mechanical sound to create something closer to musical documentary. One asks to be felt, another to be followed, and the third to be decoded.

That reaction is worth thinking about, because Different Trains is not some graduate student’s experiment that escaped from the conservatory. Reich is one of the most honored American composers of the past half-century, and Different Trains is among his best-known works. Written in 1988 for the Kronos Quartet, it won a Grammy for best contemporary composition. Critics have praised it for decades as an important musical meditation on the Holocaust.

Its premises are serious and deeply personal. As a Jewish child whose parents had separated, Reich traveled by train between New York and Los Angeles from 1939 to 1942. He later reflected that, had he been living in Europe, he would have been riding very different trains. He assembled recordings of his governess, a retired Pullman porter and Holocaust survivors, along with train whistles, sirens, and the sounds of locomotives. The string players imitate the pitch and rhythm of the recorded voices.

I understand the idea. I admire the ingenuity. I respect the subject. I still found the result nearly unbearable. My daughter and wife had to suppress laughter when the music lovers seated behind us loudly barked, “Intermission! Thank God!” and made for the exit.

The strings scratched, pulsed, and repeated short phrases while disembodied voices announced dates and fragments of memory. Train sounds and speech competed with the players for attention. There was motion but, to my ear, little musical development, enormous historical weight but little beauty. It felt less like chamber music than an art installation one could not leave without climbing over one’s neighbors. Some people made that climb anyway.

Defenders of contemporary music have a ready answer to such reactions. Beethoven himself shocked listeners. Stravinsky provoked a riot. Great art need not soothe us, and audiences accustomed to familiar harmonies must sometimes be challenged. All true. But these observations have hardened into a convenient doctrine under which the audience can never be right. If listeners are moved, the work has succeeded. If they are repelled, it has challenged their complacency. Either response becomes proof of greatness.

That leaves no room for the most ordinary critical judgment: perhaps the audience understood the work well enough and disliked it. Difficulty is not depth. Dissonance is not courage. A grave subject cannot confer musical merit by itself. The Holocaust deserves remembrance but invoking it does not place a composition beyond aesthetic judgment. Indeed, the dignity of the subject should make judgment more exacting, not less.

Here lies the paradox. Classical music cannot survive by offering only the familiar. Musicians do not want to spend their lives playing the same fifty masterpieces, composers need performers willing to take risks, and audiences can discover pleasures they did not know they wanted. An art form that presents nothing new eventually becomes a museum. Yet an institution that makes novelty a duty, and regards audience discomfort as a badge of seriousness, may drive away the people on whom the living art depends.

The standard programming solution is to place the challenging work between two beloved pieces, rather as one hides medicine in a dog’s dinner. The hope, presumably, is that listeners attracted by Barber and Beethoven will have their ears enlarged by Reich. Sometimes that must happen. Exposure matters, and an initially difficult work may reward a second or third hearing. But there is a revealing hint of coercion in the arrangement. The audience is free to choose the concert, but not the aesthetic experiment embedded inside it

.The Charlottesville program made the contrast almost comically stark. The festival’s description promised “profound emotion, innovation, and timeless beauty.” The words treated three radically different experiences as parts of a harmonious whole. Innovation was certainly present. Timeless beauty was more difficult to locate during the train whistles, sirens, recorded voices, and insistent repetition. The audience was being asked to accept that all three works delivered the same goods by different means. Many listeners plainly did not.

Why do programmers persist when audiences react as this one did? Partly because they sincerely believe in the music. Partly because institutions feel responsible for enlarging the repertory. But there is also a culture of prestige in which challenging the audience is considered braver than pleasing it. The composer, performers and programmers possess the approved vocabulary; the customer possesses only a ticket and a pair of ears. When the two disagree, professional opinion usually acquits itself.

This attitude is especially dangerous for classical music, which already worries about aging audiences and empty seats. The desire to please an audience and the desire to expand its tastes need not be enemies. A thoughtful program can do both. But programmers should recognize the point at which education turns into correction, as though listeners who came seeking beauty must be taught why beauty is an inadequate ambition. People who pay for an evening of chamber music are not enemies of culture. Treating their response as ignorance, rather than information, is an odd way to cultivate them.

None of this means festivals should abandon contemporary music or program only pieces guaranteed to please. Present the Reich, by all means. Explain what it is. Pair it with other experimental work and invite the audience that wants that experience. Or place it in a program like Saturday’s but accept the verdict when listeners give one. Artistic risk includes the risk of failure. That principle should apply to celebrated composers as readily as to unknown ones.

The musicians on Saturday performed with formidable skill. My quarrel is not with them, nor with Steve Reich’s motives. It is with the strange compact under which institutions may challenge audiences, but audiences must not challenge institutions in return. The people who groaned were making a critical judgment, however impolite its expression. The people who left were making an economic one.

The paradox remains. Classical music must change enough to stay alive, but it must also preserve the qualities that made people love it. A festival cannot enlarge an audience by treating the audience’s pleasure as artistically suspect. Perhaps the surest sign that classical music remains alive is that listeners still care enough to object. They should not be scolded for wanting music rather than a lecture delivered by locomotive. They should be heard.

Alex Wagner recently wrote a long article about Robert Bork, originalism, and the beginnings of the Federalist Society. I responded here to what I thought she got wrong. Then I made the mistake of reading the comments, where I encountered a Robert Bork considerably more interesting than the man who raised me: not merely a Yale law professor, solicitor general, federal judge, and unsuccessful Supreme Court nominee, but something closer to the hidden hand of modern American history.

One reader informs us that originalism “was created by the Taney court,” which employed it to produce the Dred Scott decision. Another says Bork and his fellow conservatives sought to build a “Neo-Confederate Constitutional structure.” A third traces the intellectual lineage through the Confederacy, Southern Baptists, Barry Goldwater, the Federalist Society, and Donald Trump. Along the way the discussion touches white supremacy, Christian nationalism, the KKK, and American Nazis.

Dad, it turns out, was busier than I realized.

The Dred Scott claim is especially inventive. Chief Justice Roger Taney decided that case in 1857. He did not invent the practice of interpreting the Constitution by reference to its text and historical meaning, and Robert Bork did not inherit some secret jurisprudential baton passed down from Taney. Modern originalism came much later, and it has evolved considerably since my father became one of its most prominent early advocates.

There is a more basic problem with the neo-Confederate theory: the Confederacy lost, and the Constitution changed with it. The Thirteenth Amendment abolished slavery. The Fourteenth established national citizenship and guaranteed due process and equal protection. The Fifteenth prohibited racial discrimination in voting. Originalism requires interpreting those amendments, too. A philosophy that requires recovering the historical meaning of the Fourteenth Amendment is, to put it mildly, an inefficient way to restore the Confederacy.

But there is an actual constitutional argument buried in the comments.

One reader announces that the Federalist Society “was founded for the purpose of excising the Ninth Amendment from the Constitution.” Another calls its members “radical autocrats.” Several invoke the Ninth Amendment itself, which says that enumerating certain rights in the Constitution should not be understood to “deny or disparage others retained by the people.” They believe this exposes a fatal contradiction in Bork’s jurisprudence: if the Constitution recognizes unenumerated rights, how could Bork insist that judges should not invent constitutional rights?

This was not exactly a discovery withheld from Bork.

He was grilled about the Ninth Amendment during his 1987 confirmation battle. His famous “inkblot” analogy became one of the most controversial features of that debate. But his underlying question was considerably harder than the caricature suggests. If a constitutional provision does not tell us which particular unenumerated rights are judicially enforceable, by what method does a judge identify them? And what prevents a judge from constitutionalizing his own moral and political preferences?

Remarkably, one of Wagner’s commenters asks essentially that question: how do we identify Ninth Amendment rights without giving liberal, conservative, or libertarian judges a blank check to impose whichever rights they favor? Another commenter, who volunteers that he was delighted when Bork’s Supreme Court nomination was defeated, nevertheless points out that Bork’s Ninth Amendment position is not the logical contradiction others claim.

Now we are discussing constitutional law.

There are perfectly serious arguments against Bork. Perhaps originalism does not constrain judges as effectively as he believed. Perhaps historical evidence can be ambiguous. Perhaps constitutional provisions embody broad principles whose application changes as circumstances change. Perhaps Bork’s conception of judicial restraint was too restrictive. Originalists themselves have argued about these questions for decades.

None of that requires Robert Bork to have been a Confederate.

My favorite comment comes from a reader who complains that “Bork took the constitution and turned it into a spread sheet. If its not in the spread sheet it doesnt exist.”

Spelling aside, this comes closer to an actual argument than most of what surrounds it. It is also a caricature.

My father did not believe constitutional adjudication consisted simply of searching the document for a particular word. In his 1971 essay “Neutral Principles and Some First Amendment Problems,” he confronted precisely the difficulty of deriving and applying constitutional principles. He recognized both rights specified by text and history and rights derived from the governmental processes established by the Constitution. In discussing Brown v. Board of Education, he acknowledged that the historical record did not provide an answer to every specific modern question. What it did provide, he argued, was a constitutional principle of racial equality that judges were obliged to apply consistently.

His argument was not that everything had to appear in a constitutional spreadsheet. It was that judges needed a principled basis for what they put there.

That brings us to the question that preoccupied him throughout his constitutional writing: when a judge strikes down a law enacted by elected representatives, what makes that exercise of power legitimate?

Bork opened “Neutral Principles” with almost exactly that question. He argued that judicial decisions must be governed by principles that transcend the result in the particular case. Where constitutional text, history, structure, and their fair implications did not support the value a judge wished to enforce, the judge could not simply substitute his own moral preferences and call the result constitutional law.

That proposition can be disputed. It has been disputed for more than half a century. But it is an argument about the legitimate exercise of judicial power in a democracy, not a plan for restoring the Confederacy.

And that is what makes the comments beneath Wagner’s article so revealing. Some of her readers have created a far more exciting Robert Bork: Confederate restorationist, racial theorist, religious reactionary, authoritarian mastermind, and grandfather of Trumpism.

I confess I never met that Robert Bork.

But, then again, neither did they.

There’s something odd about watching the world’s most powerful artificial-intelligence companies ask Washington for permission to compete a little less vigorously.

Anthropic CEO Dario Amodei has called for slowing the development of increasingly powerful AI systems and proposed coordination among the leading labs. OpenAI’s Sam Altman and Elon Musk were quick to endorse the idea. The justification is safety, the worry that technology is outrunning our ability to control it.

That worry deserves to be taken seriously. AI isn’t merely another consumer product whose defects can be recalled after they appear. Researchers worry about systems assisting bioterrorism, conducting cyberattacks, manipulating vulnerable people and, ultimately, escaping meaningful human control. More unsettling still is recursive self-improvement: AI increasingly helping to build its own more capable successors.

We don’t know where this leads. That uncertainty is itself part of the problem. AI may turn out to be less like the invention of a new drug than the discovery of fire, a general-purpose technology capable of transforming almost everything it touches.

So, the argument for caution is powerful. But it doesn’t follow that the proper response is to suspend competition.

When competitors agree among themselves to hold back innovation, antitrust lawyers get nervous. FTC Chairman Andrew Ferguson said as much this week at Georgetown University, noting that his “alarm bells go off” whenever companies ask Washington for regulation and an antitrust exemption in the same breath. Regulation of that kind, he warned, can become a barrier protecting whoever already has a foothold.

Mark Zuckerberg unexpectedly gave the clearest answer to why.

He rejected the idea that safety necessarily requires collective action. “Every lab has the responsibility and incentive to move at the pace required to train its models safely,” he wrote Tuesday, “and the ability to take its own actions to ensure that happens.”

Zuckerberg isn’t dismissing the danger. He has said Meta will devote the significant majority of its computing power to AI that serves people rather than racing toward recursive self-improvement. His disagreement is over whether responding to the danger requires competitors to move together.

That distinction matters.

Safety is partly something customers and investors demand. Few people want to hand their finances, communications or businesses to an AI agent they don’t trust. Investors don’t want billions committed to products capable of creating catastrophic liabilities. Markets therefore create real incentives for reliability, security and safety.

But market incentives may not capture every conceivable AI risk. A catastrophic failure could harm people who were never customers of the company that created it. That is where government, liability rules, independent evaluation and carefully drawn safety standards may have legitimate roles.

None of those requires giving competitors permission to coordinate their competitive behavior.

Meta demonstrates the point. Zuckerberg says the company delayed its Muse AI agent for several months so engineers could work on safety and security. “We didn’t call for everyone else to do this before we would,” he said.

That distinction maps directly onto the consumer welfare standard. Antitrust law doesn’t stop a company from deciding that caution is warranted. Anthropic slowing Anthropic down is a business decision. Anthropic, OpenAI and other frontier labs agreeing that everyone should slow down together raises a different question.

The stakes aren’t abstract. Today’s leading AI companies possess enormous advantages in computing, capital, talent and data. A safety regime designed by those companies and adopted industry-wide could become a wall against the next generation of challengers, especially with government enforcement on one side and an antitrust exemption protecting coordination on the other.

The danger is not that AI safety is a pretext. The danger is precisely that the concern is legitimate. Legitimate fears are often the easiest foundation upon which to build permanent regulatory structures.

And once today’s incumbents help write the rules governing tomorrow’s entrants, safety regulation can quietly become market regulation.

There is therefore no need to choose between pretending AI is harmless and allowing its largest developers to determine collectively how fast the industry may advance. We can take catastrophic risks seriously, require independent testing, establish appropriate safeguards and hold companies responsible for harm without abandoning competition.

Indeed, competition can contribute to safety. Companies can compete to produce systems that are more controllable, transparent and secure. A laboratory that discovers a safer architecture should gain an advantage from it, not merely contribute it to an industry-wide arrangement governing everybody else’s behavior.

There’s an irony underneath all this. Washington has spent years worrying that a small number of tech companies hold too much economic power. Now some of those companies are asking to coordinate one of the most consequential technological races in history.

Before granting that request, it’s worth remembering an old lesson of antitrust: competitors can always find reasons why things would go better with a little less competition. In this case, those reasons may be unusually serious.

That makes scrutiny more important, not less.

The consumer-welfare question remains: What would the restraint do to consumers?

AI may indeed require safeguards unlike anything we have imposed on an ordinary product. But extraordinary danger doesn’t repeal economics, and it shouldn’t repeal antitrust.

If a company believes it’s moving too fast, it can slow down. If government concludes that particular conduct presents an unacceptable danger, it can regulate that conduct.

Neither requires an antitrust exemption allowing today’s AI giants to decide how fast tomorrow’s competitors may run.

The latest effort at shadowboxing a ghost comes from Alex Wagner in The Atlantic, in an excerpt from her new book about the conservative legal movement. Wagner returns to the first Federalist Society conference at Yale in 1982, where my father spoke alongside Antonin Scalia, whom casts as the architect of a plan to capture the judiciary, curtail constitutional rights, and use originalism to restore conservative values.

The actual text of Bork’s speech, “Federalism and Gentrification,” survives in the Ronald Reagan Presidential Library. This isn’t a matter of reconstructing what was said from memory or hostile summary. Reading it makes Wagner’s version unsustainable.

She writes that Bork told the students academia and the press had become overwhelmingly liberal, that the Supreme Court was inventing rights, and that he then laid out a conservative doctrine of originalism grounded in a “strict” or “textualist” reading of the Constitution and the intentions of the Founding Fathers. The first two points are certainly in the speech. The rest is Wagner’s reconstruction. Bork never uses the word “originalism.” He doesn’t call for a strict interpretation, doesn’t call himself a textualist, and doesn’t invoke the Founding Fathers. Those are Wagner’s words, not his.

What he actually addressed was an older and harder question: Who governs in a constitutional democracy? His complaint was that the Supreme Court had started creating constitutional rights that couldn’t be reached through ordinary interpretation—not that judges were always reaching liberal outcomes, but that once judges were untethered from the text, they were free to select values of their own. That concern predates the Federalist Society by well more than a decade. In his 1971 article “Neutral Principles and Some First Amendment Problems,” Bork had already asked the question that would define his career: If judges can easily strike down democratic choices, what separates constitutional law from laws passed by Congress?

Wagner turns this argument almost exactly upside down, framing Bork’s answer to liberal judicial activism as a call for conservative judicial activism. It was the opposite—an argument for judicial restraint. At Yale, Bork said legislatures shouldn’t be blocked from governing “unless the Constitution itself, fairly construed, makes the choice,” and warned against a transfer of authority “from democratic to judicial rule.”

And his proposed method for this supposed judicial takeover?

“It is an intellectual debate,” he said. “Perhaps it can be won.”

If it were won, Bork hoped the Court would settle into a “rather more modest role.”

Some coup.

Wagner’s most telling line may be her claim that “whether Bork truly believed in the conspiracies he outlined or whether he was merely exaggerating is unclear.”

Bork drew on well-grounded facts to characterize a media and legal environment that was already well on its way to being an ideological monolith.

When Bork said leading journalists were overwhelmingly liberal, he cited a survey in Public Opinion that found more than 80 percent of journalists who voted had backed the Democratic presidential candidate. This is a statistic that Wagner herself repeats later in the piece. Does an empirical claim becomes a conspiracy theory once the evidence is politically inconvenient?

Bork made a similar argument about elite law schools, and later empirical research hasn’t exactly made the observation look paranoid. A major study of the legal academy found only 15 percent of law professors are conservative, compared with 35 percent of lawyers generally.

That does not, of course, prove every causal claim Bork made about courts or culture. But it does make Wagner’s “conspiracy” characterization hard to defend.

More consequential, I think, is how Wagner describes originalism itself—telling readers that under this approach, constitutional rights existed only as the Founding Fathers had specifically imagined them. That makes originalism sound like constitutional taxidermy, and it wasn’t my father’s position at all.

As a judge, Bork put the point rather differently. He said: “It is the task of the judge in this generation to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know.” Then came a sentence that is difficult to square with Wagner’s description of originalism: “The world changes in which unchanging values find their application.”

Bork made the point concrete. The Framers knew nothing of electronic surveillance, he observed, but the Fourth Amendment’s principle nevertheless applies to it. They knew nothing of radio and television, but the First Amendment applies to them. The constitutional principles endured; their application wasn’t frozen at the moment of ratification.

His treatment of Brown v. Board of Education shows the same thinking. Bork recognized the historical difficulty: the original understanding of the Fourteenth Amendment did not provide a simple answer about segregated public schools. Yet he defended Brown because the constitutional principle was equality, and constitutional principles must be applied to circumstances beyond the specific expectations of those who enacted them.

In short, the question was never whether the Framers anticipated every future controversy. It was what principle the Constitution had actually enacted.

That distinction matters again when Wagner turns to abortion, which she frames as part of a conservative campaign to curtail rights. But at the 1982 conference, Bork didn’t argue the Court should prohibit abortion—he argued it should stop deciding the question for everyone.

“There is simply no national moral consensus about abortion,” he said. In his view, Roe had taken a genuine political and moral disagreement and turned it into a single constitutional command binding all fifty states. “It is an issue that really ought to be back in the states,” he concluded.

Forty years later the Supreme Court reached essentially that conclusion in Dobbs v. Jackson Women’s Health Organization, and here Wagner has a real point: Bork’s argument eventually won.

But notice what winning meant. The Court didn’t hold that the Constitution prohibits abortion. It held that the Constitution doesn’t confer a right to abortion and returned authority over the issue to “the people and their elected representatives.” Bork’s great judicial “victory,” in other words, consisted of the Court returning power over the abortion question to state voters and state legislators. A coup would have outlawed abortion at the national level. The doctrine Bork advocated, which eventually succeeded, leaves the abortion policies of Massachusetts, New York, California and other blue states intact.

None of this requires believing my father was always right. Serious scholars disagreed with him throughout his career, sometimes forcefully, and there remain genuinely hard questions about originalism, judicial review, federalism, unenumerated rights, and how a democracy protects minorities against its own majorities. Bork spent much of his professional life arguing about exactly those questions.

But argument has to start with describing the other side honestly, and what Wagner offers instead is a morality play: conservatives become “hard-liners,” the Federalist Society mounts a “raid” on the courts, Bork’s empirical claims become “conspiracies,” judicial restraint becomes a scheme for judicial domination, and returning disputed questions to elected government becomes “curtailing rights.”

Even the founding of the Federalist Society looks less sinister with the ominous music turned off. Three law students at elite universities thought conservative legal ideas weren’t getting a serious hearing, so they started an organization where those ideas could be debated. Other students heard about it and wanted chapters of their own, and it grew from there.

You can call that the beginning of a plot, or you can call it freedom of association. The Federalist Society became influential because the ideas developed in and around it became influential. And Robert Bork didn’t believe courts should become instruments of conservative politics. He believed they had already become instruments of politics, and he wanted that to stop.

Nearly half a century later, some of his critics still can’t tell the difference.

When President Trump nominated Adam Candeub to lead the Justice Department’s Antitrust Division, it seemed like a win for conservative legal enforcement. Candeub has an impressive résumé and a serious intellectual pedigree. His Senate questionnaire records a career teaching law and serving at the Federal Communications Commission and the Commerce and Justice departments. He has written extensively about telecommunications, competition and the internet. His work reflects familiarity with Robert Bork, Milton Friedman, Frank Easterbrook and the law-and-economics tradition. He is not a novice who stumbled into antitrust through politics.

But a closer inspection of Candeub’s nomination should prompt more careful scrutiny from conservatives.

Candeub appears increasingly willing to loosen his standards when they obstruct the administration’s political objectives. He retains the vocabulary of consumer welfare, economic freedom and error costs, while admitting into antitrust a growing catalogue of noneconomic concerns—free speech, democratic resilience, children’s development, corporate ideology, and even human happiness.

Each of those concerns is important. None becomes an antitrust concern merely because a large company is involved.

In his chapter on the Federal Trade Commission for Project 2025, Candeub accurately describes my father’s contribution: placing consumer welfare at the heart of competition law. He also writes that the consumer-welfare standard “must guide FTC action.” So far, so good. But that sentence continues. In appropriate cases, he says, the standard “must be expanded” beyond price. He then discusses concentration’s effects on free speech, the marketplace of ideas, shareholder control, managerial accountability, democracy and children’s development. Elsewhere in the chapter, he suggests that social media’s tendency to make users unhappy may justify a more aggressive regulatory response.

Those qualifiers are a problem.

The consumer-welfare standard has never been confined to whether the price of a widget rises by a nickel. Properly understood, it encompasses output, quality, innovation and consumer choice, including nonprice harms when they result from injury to competition. But it is still a limiting principle. It requires the government to identify a relevant market, prove anticompetitive conduct, demonstrate injury to the competitive process and connect that injury to consumers.

Once “consumer welfare” is expanded to include every social consequence attributed to a powerful corporation, antitrust enforcement breaks free of all constraints. An enforcer can simply select the political concern of the moment and redescribe it as a competitive harm.

Candeub made the tension unusually clear in 2023 testimony before the Senate Judiciary Committee. He praised the economics-based consumer-welfare standard for limiting the damage caused by mistaken or overly broad enforcement. But he immediately contrasted that discipline with Big Tech’s alleged effects on democracy, free speech and children. Discussing the removal of Parler from major app stores and Amazon’s hosting service, he asked whether proposed antitrust legislation would produce a “freer country” and a “stronger democracy.”

The exclusion of a rival from indispensable distribution channels can present a legitimate antitrust issue. If dominant firms conspire or use monopoly power to suppress competition, the law supplies a remedy. But whether a platform treats conservative speech fairly is not, by itself, an antitrust question. The Antitrust Division should not become a national board of editorial appeals.

Candeub’s communications scholarship reinforces these concerns. In a 2020 Yale Journal of Law & Technology article, he described Section 230 as part of a “regulatory bargain”: government provides liability protection while dominant networks accept antidiscrimination duties and furnish public goods, including a platform for free speech. That theory is thoughtful and has deep roots in common-carriage law. It may provide a basis for legislation governing communications networks.

But common carriage and antitrust are not interchangeable. Common-carrier duties arise from a distinct body of law and normally require legislative authorization. Antitrust, by contrast, condemns agreements and conduct that damage competition. Combining the two invites the government to treat successful technology companies as public utilities and impose neutrality obligations without first proving an antitrust violation.

Candeub’s treatment of Frank Easterbrook’s error-cost framework is equally revealing.

Easterbrook warned that erroneous intervention can suppress efficient conduct for years, while monopoly profits ordinarily attract entry and innovation. Candeub acknowledges that logic, then changes the calculation: failure to intervene, he argues, may injure democratic accountability and free speech, making a more proactive approach appropriate.

This sounds cautious, but it removes the denominator from error-cost analysis. How is an antitrust court to measure injury to democratic deliberation? How should it balance political viewpoint, childhood well-being and consumer satisfaction against efficiency? These are questions on which reasonable citizens disagree and for which antitrust law possesses no special competence. Once they enter the calculus, enforcement turns on an official’s political judgment rather than administrable economic evidence.

There is an irony in Candeub’s reliance on Milton Friedman. He invokes Friedman to condemn managers who spend shareholder resources advancing their own social and political beliefs. That criticism may be justified. But Friedman’s deeper point was that market mechanisms, rather than political officials, should allocate private resources.

Using government enforcement to punish corporations for the wrong ideology would reproduce the very politicization Friedman opposed.

Conservatives understandably resent Silicon Valley’s censorship, ideological conformity and occasional cooperation with government. I share many of those concerns. But the answer to politically directed antitrust is not politically directed antitrust with a different enemies list. A progressive administration handed Candeub’s expanded theory could just as readily target companies for insufficient commitment to climate policy, organized labor, diversity or “democratic resilience.” Political antitrust does not remain conservative when political control changes hands.

The stakes are particularly high at the Justice Department. The Assistant Attorney General decides which mergers receive searching review, which companies face civil monopolization suits, and which executives confront criminal investigation. Even when the government eventually loses, an investigation can consume years, alter business strategy and impose enormous reputational and financial costs. A standard that permits the enforcer to consider a company’s politics creates both uncertainty and an invitation to seek political favor.

That is how “America First Antitrust” could become the conservative version of the Neo-Brandeisian project: different preferred constituencies, different disfavored corporations, but the same belief that antitrust officials should reorganize markets in pursuit of political ends. It is also how antitrust becomes an instrument of the conservative socialism I have criticized—government directing private enterprise according to political priorities rather than protecting the competitive process.

None of this proves that Candeub would misuse the office. His writings contain genuine caveats, respect for economic evidence and recognition of the risks of overenforcement. That distinguishes him from those who reject consumer welfare outright. His intellectual seriousness is real. The question is whether his limiting principles are.

The Senate should therefore ask him for commitments, not labels.

Will he challenge conduct only when the government can prove injury to competition and consumers under existing law?

Will he disavow viewpoint discrimination, corporate ideology and generalized effects on democracy as independent grounds for antitrust action?

Will he keep common-carrier regulation and Section 230 reform out of the Antitrust Division unless Congress supplies clear authority? And will he apply the same standards to politically friendly companies as to politically hostile ones?

If Candeub can answer yes, his experience and intellectual background could make him a formidable Antitrust Division leader. If he cannot, senators who believe in law and economics should oppose his confirmation. The issue is not whether Big Tech deserves sympathy. It is whether antitrust law still deserves a boundary.

Many years ago, I had the pleasure of sitting next to Ayaan Hirsi Ali at a dinner. She was then, as she is now, a vibrant, fearless public intellectual. Having escaped an arranged marriage, renounced Islam, served in the Dutch parliament, and lived under threat of assassination, she had earned the right to be heard.

That evening, she conveyed to me the essence of the warning she now delivers in a remarkable essay in Tablet. I did not want to believe her then. I still do not want to believe her. But the case she makes can no longer be denied.

Hirsi Ali begins with Mohamed Atta, who lived comfortably in Germany before leading the 9/11 attacks. Western leaders have spent 25 years interpreting Islamist violence through familiar categories: poverty, humiliation, alienation, Western foreign policy, and failures of integration. Atta’s own words and conduct, she argues, point to a more unsettling explanation—religious conviction and a civilizational ambition to conquer the unbelievers.

From her own experience as a teenage member of the Muslim Brotherhood, Hirsi Ali understood what Western policymakers could not imagine—that the Brotherhood believed “the West was weak, and that they were strong.”

America responded to 9/11 by becoming highly proficient at finding and killing terrorists. But it has neglected the institutions, foreign funding, migration patterns, doctrines, and political alliances that can sustain Islamism as a “civilizational project” within Western societies.

Let me stress that Hirsi Ali’s argument is not that every Muslim is an Islamist. It is that Western leaders refuse to recognize profound conflicts between Islamist ambitions and the inheritance of the Reformation and Enlightenment. Our values of individual conscience, religious liberty, secular law, pluralism, and equality between men and women are anathema to Islamist ideology. Our openness can be exploited by those determined to use it to undermine Western democracies from within.

Contemplating the coming anniversary of 9/11, Hirsi Ali’s conclusion is stark: “We don’t have another 25 years to get this right.”

George Kennan’s “Long Telegram” and his subsequent Foreign Affairs essay, “The Sources of Soviet Conduct,” defined the Soviet challenge and supplied the intellectual foundation for America’s Cold War strategy. Hirsi Ali’s essay deserves to be recognized as providing similar guidance for American geopolitical thinking in our time.

One need not embrace every prescription she offers. Nor is this a call to discriminate against large numbers of loyal Americans. But no serious policymaker can afford to disregard her diagnosis. Ayaan Hirsi Ali warned us years ago. Her warning can no longer ignored.

Is this, in effect, the last Labor Day?

Such predictions are as old as the Luddites. The steam engine was going to render human muscle obsolete. Mechanized farm equipment displaced millions of agricultural workers. Industrial robots replaced assembly-line jobs. Computers eliminated typists, switchboard operators and entire floors of clerical workers.

Each transformation caused real disruption. Some workers, like the artisans in Northern England who lost their markets to manufactured goods, never recovered what they lost. Some communities were left behind. We should not minimize that history or the human costs of Schumpeter’s “creative destruction.” But neither should we ignore the larger result: Technology did not eliminate work. It made workers more productive, lowered prices, increased incomes and created industries that earlier generations could not have imagined.

The mistake behind most predictions of technological unemployment is the assumption that the economy contains a fixed amount of work. If a machine performs a task, the reasoning goes, a human being must lose a job. But an economy is not a game of musical chairs. Greater productivity lowers the cost of producing goods and services. Lower costs create new demand. New demand leads businesses to expand, entrepreneurs to enter markets and capital to flow toward uses that did not previously exist.AI will operate through this same process, although probably faster than earlier technologies. It will eliminate some jobs, particularly those consisting largely of repetitive administrative tasks. The Bureau of Labor Statistics expects office and administrative-support employment to decline significantly over the coming decade. The disruption has already begun.

But a job is usually a collection of tasks, not a single activity. When AI takes over part of a job, it does not necessarily eliminate the worker. It can allow the worker to do more valuable work.

A doctor who spends less time preparing notes can spend more time with patients. A lawyer who can review documents in hours rather than days can take cases that were previously uneconomical. A small manufacturer can use AI to design products, monitor machinery and manage inventory without hiring a large administrative staff. A two-person business can acquire marketing, accounting and research capabilities that once belonged only to large corporations.

This is where many of AI’s new jobs will come from—not merely from building AI systems, but from the millions of businesses that will use them to expand.

The evidence is beginning to support that view. PwC’s 2026 AI Jobs Barometer analyzed more than one billion job advertisements across 27 countries. It found that jobs requiring AI skills grew 69 percent while the overall job market grew 9 percent. Workers with AI skills commanded an average wage premium of 62 percent. More surprisingly, companies in the industries most exposed to AI increased their headcounts faster than companies in less exposed industries. These businesses were using AI to grow, not simply to cut payrolls. PwC’s study does not prove that every worker will benefit, but it hardly resembles a labor market approaching extinction.

The latest American projections tell a similar story. The Bureau of Labor Statistics expects the economy to add 5.9 million jobs between 2025 and 2035. Demand connected to AI systems, research and consulting is expected to help professional, scientific and technical services add more than 900,000 jobs. Computing infrastructure, data processing and web-hosting employment is projected to grow 25 percent and add roughly 120,000 jobs. Data-scientist employment is expected to rise nearly 35 percent. BLS also expects AI-related electricity demand to support jobs in power generation, electrical equipment, fiber optics and data-center infrastructure.

The most important effect, however, may be AI’s ability to make ordinary workers more capable. In a widely cited study of customer-support agents, researchers found that generative AI increased productivity by nearly 14 percent. The largest gains went to less experienced and lower-skilled workers, who gained access to knowledge previously possessed mainly by top performers. AI did not merely substitute for labor. It transferred expertise to workers who had not yet acquired it.

That could help reverse one of the least welcome features of the modern economy: the widening gap between highly credentialed experts and everyone else. AI can give a nurse, technician, mechanic, paralegal or small-business owner access to sophisticated analysis without requiring years of additional schooling. It can restore value to human judgment by supplying workers with better information on which to exercise it.

None of this guarantees a painless transition. Entry-level jobs may be especially vulnerable because AI can perform some of the routine work through which young employees traditionally learned a profession. Employers will have to create new forms of apprenticeship. Schools and community colleges must teach students how to work with AI rather than pretending it can be kept outside the classroom. Workers displaced in midcareer will need practical training tied to actual jobs, not vague promises of “reskilling.” And professors of English—well, they will just have to tear their hair out.

Government has a role in helping people make that transition. But it should not try to preserve every existing job description or decide which technologies businesses may use. Nor should Washington make America’s energy and permitting problems worse by blocking the data centers and generating capacity on which the new economy depends. If we refuse to build the infrastructure, the investment and jobs will go to America’s competitors.

The best protection for workers is a growing, competitive economy in which new companies can challenge incumbents and workers have many potential employers. Policymakers should therefore be suspicious of regulations that only the largest technology companies can afford to satisfy. Rules ostensibly written to restrain AI could instead entrench today’s dominant firms and prevent tomorrow’s employers from ever getting started.

Labor Day was not created to honor particular tasks or job titles. It honors the people who work, build businesses, solve problems and support families. AI will change how they do those things. It will also give many of them powers that previously belonged to corporations with thousands of employees.

So, this will not be the last Labor Day. But it may be one of the last on which we think of AI solely as a competitor to human labor. If we allow innovation and competition to do their work, AI can become a tool that enables Americans to create more, earn more and build jobs that do not yet have names.

“Here, as in so much of imperial history, commerce, colonization and brute corporate power walked in lock step,” Dalrymple writes. He quotes Tolstoy’s letter to Gandhi in which the novelist marveled that “a commercial company enslaved a nation comprising 200 million people.”

Dalrymple’s essay is colorful and engaging, but his comparison between the East India Company and America’s tech titans is strained—leading, not surprisingly, to the conclusion that more government control of Big Tech is needed. He makes the case that the U.S. government should crack “the whip hand” to humble these companies, just as the British government ultimately did when it nationalized the East India Company after its incompetence fueled the Indian Rebellion (“the Great Mutiny”) in 1857.

“Big Tech has, too, begun to take on the attributes of sovereign states, and in many ways is now as powerful as the East India Company at its height,” Dalrymple writes.

He points to Nvidia’s valuation of more than $5 trillion, “roughly the gross domestic product of Germany, the world’s third-largest economy, with a population of 84 million.” He enumerates the eye-popping valuations of Apple and Alphabet, and the growth of SpaceX’s share of all satellite launches from below 10 percent in 2014 to around three-quarters last year—all as evidence that Big Tech is dominated by rogue companies in need of humbling.

But stock valuations are far more volatile and ephemeral than a country’s GDP. And, unlike the East India Company, which enriched a slice of British elites, the wealth that today’s tech leaders generate enriches the portfolios of tens of millions of mom-and-pop investors and retirees around the world.

Dalrymple acknowledges that Nvidia and its peers have no standing armies or conquered territory. That is no small distinction. There are other significant differences. The East India Company was granted a royal charter in 1600, giving it trading rights across a vast quadrant of the Earth. It acquired armies, conquered territory, and governed hundreds of millions of people. It sold many things—indigo dye, silk, sugar, opium—but it was essentially an exploiter of human labor and other people’s land.

Nvidia did not arise from a royal charter issued by a mercantilist power. It emerged from a meeting between three young engineers at a Denny’s. Nvidia now dominates the upper end of AI chips, but it is not a monopoly. It is engaged in fierce competition with global leaders like AMD, Intel, Google, AWS, and others. It is true that SpaceX has close to a monopoly in heavy-lift launches – partly due to the failure of Boeing and other traditional contractors. But would the U.S. economy and national security be improved if SpaceX were broken up into several separate launch companies? The little SpaceXs might compete on price, but the economies of scale—and likely the competence—needed for this monumental enterprise would be lost.

Google does have a monopoly on search, but this is not the result of a modern version of a royal charter, either. It is simply a function of network effects—everyone uses Google because everyone uses Google.

And besides, who wants to be forced to navigate between 10 Googles?

As for the raw political power of Big Tech, it has not kept Meta from being forced into a recent settlement worth up to $17 billion with a coalition of dozens of state attorneys general. And as for the power of Big Tech donations, remember that Elon Musk and Musk-backed groups invested $30 million in support of a candidate for the Wisconsin Supreme Court—and lost.

If Dalrymple’s diagnosis is iffy, his prescriptions are troubling.

He seems to be pointing to China as a model of how a powerful state can humble “corporate kings.” He approvingly describes Chinese dictator Xi Jinping’s humiliation of Jack Ma, co-founder of Alibaba, for the crime of publicly complaining about heavy-handed regulation. The planned IPO of Ma’s Ant Group was canceled, and the company was then forcibly restructured. Dalrymple writes that Ma “largely disappeared from public life in China, resurfacing in February 2025 to shake Mr. Xi’s hand at a televised symposium of chastened entrepreneurs.”

On a gentler scale, something similar happened at Donald Trump’s second inaugural, when tech CEOs, intimidated by the president’s promised retribution, lined up to kiss the king’s ring.

Whether in China or in Trump’s America, the humbling of corporations by the state is not a recipe for broader economic growth or a stronger democracy. It is, as China is learning and America may soon learn, the path to crony capitalism, which makes us all poorer and less free.

My Wall Street Journal essay (8/28/26) on the Meta paradox—published under the headline “The Meta Settlement Makes Big Tech Bigger”—produced what one might expect from a discussion of children, social media, government and Mark Zuckerberg: a calm seminar conducted at the volume of a fire alarm.

One reader said I should never be allowed to sit “unsupervised behind a keyboard.” Another submitted the column to an AI detector and reported the verdict as though Pangram had just returned from Mount Sinai. Zuckerberg’s yacht made an appearance. So did broken glass, dirty needles and loaded guns. This is the comment section’s traditional warm-up before the argument begins.

But the argument did begin, and much of it was worthwhile. Several readers identified the point of the column more clearly than some of its critics did. “Government: ‘Big Tech is too powerful!’ Also government: ‘Here’s a mountain of regulations only Big Tech can afford,’” one wrote. Another compared the settlement to the tobacco agreement, which created a moat around the companies it was supposed to punish. A third noticed the privacy problem: to identify children reliably, Meta will have to know considerably more about everyone.

Those readers understood my argument. Others thought I was claiming that social media is harmless, Meta is innocent, parents are omnipotent and government should do nothing. I said none of those things. The disagreement is worth sorting out because it concerns more than one company. It is about how we make public policy, who gets to make it, and whether a government campaign against corporate power can wind up increasing that power.

What I argued—and what I did not

I do not doubt that some young people are harmed by social media. Anyone who has watched a teenager disappear into a screen can see the problem. Features built to hold attention can become compulsive. Bullying, sexual exploitation, eating-disorder content and relentless social comparison are real dangers. The Surgeon General has said that social media presents a meaningful risk of harm while also providing benefits. The National Academies has been more careful about causation, concluding that effects vary greatly among users and that the evidence is often associational, reciprocal and difficult to disentangle. That uncertainty is not an excuse for indifference. It is a reason to demand policies that can be measured.

Nor did I argue that every term of the settlement is foolish. My Journal piece said explicitly that some provisions may be sound policy. Muting school-hour notifications, making parental controls easier to use, restricting cosmetic-surgery filters and offering a chronological feed all may help. A useful feature, however, does not redeem a defective governing structure. The question is not whether one can find a good idea somewhere in a 122-page agreement. The question is whether state attorneys general, bargaining behind closed doors with the dominant firm, should write an operating code for an entire communications industry.

That distinction disappeared in some of the replies. One reader said my argument was merely an “excuse for doing nothing.” Another said the settlement may be imperfect but is “better than nothing.” That is the favorite defense of bad policy because it places every burden on the critic. Yet the alternatives are not this settlement or anarchy. Legislatures can enact prospective, generally applicable rules. Regulators can enforce laws against deception, privacy violations and unlawful conduct. Courts can adjudicate claims by people who can prove injury and causation. Parents can use controls, and companies can be required to make those controls intelligible. Competition can reward services that offer families safer products. There is quite a lot between 122 pages negotiated with Meta and nothing.

Parents are neither omnipotent nor irrelevant

The most serious criticism concerned parents. Several readers said modern technology has moved beyond parental control. The platforms are sophisticated, the children know the devices better than their parents, and the products are designed to overcome self-restraint. One compared Instagram to a loaded gun. Another compared parental choice to letting children play in a park strewn with broken glass and dirty needles.

Those analogies express understandable alarm, but they assume the conclusion. Social media is not a gun, and a communications platform is not a public playground that a parent cannot alter. Instagram can expose a child to genuine risks while also providing friendship, entertainment, information and creative opportunity. The risks vary by child, content, duration and circumstance. That is precisely why parents, who know the child, cannot be written out of the equation.

They also are not written out of the settlement. Its most important restrictions are defaults that a supervising parent may relax. A parent can approve more than two hours of use, modify nighttime limits and change protective settings. The regime therefore rests on an awkward premise: parents are too powerless to govern their children’s use, yet sufficiently competent to authenticate themselves, link accounts, understand the options and decide when to override them. If parental judgment is hopeless, the settlement’s own machinery is hopeless with it.

The better answer is shared responsibility. Meta should not deceive families, conceal material risks or design features that create unreasonable hazards. Government has a legitimate role in enforcing those duties. Parents still decide whether a child gets a smartphone, which apps may be installed, whether phones enter bedrooms and what happens when rules are evaded. Saying that parents retain the first responsibility is not anarchism. It is an acknowledgment that no auditor, attorney general or algorithm will ever know a child as well as his family does.

The tobacco comparison is in the agreement

Several readers compared the deal to the 1998 tobacco settlement. One critic called that analogy “specious” because society does not need new tobacco companies or new platforms that are even better at addicting children. That response does not refute the concern about entry barriers. It embraces them.

More important, the tobacco comparison is not rhetorical decoration. It is written into the settlement’s economic machinery. The agreement guarantees the states roughly $12.1 billion and makes about $5 billion more contingent on what it calls “Industry-Wide Adoption.” It names TikTok, YouTube and Snap as “Core Industry Members.” For the tighter restrictions and contingent payments to take effect, those rivals must come under substantially equivalent obligations. The agreement even defines a “New SMP Entrant”: a competing service with at least five million monthly American teen users and an average of 30 minutes of daily teen use. If such an entrant appears without joining the regime, the condition of industry-wide adoption can fail.

In other words, the states acquire a direct financial interest in extending Meta’s bargain to Meta’s current rivals and any successful future challenger. Meta also receives a most-favored-nation provision: if a state later gives a competitor more favorable treatment, Meta can demand comparable terms. This is not a theory about regulatory capture assembled by suspicious readers. It is the architecture of the agreement.

Perhaps some people would prefer a closed club of large social-media companies to open competition. But they should say so plainly and ask Congress to make that choice. Social media is not tobacco. It is a medium of speech, association, commerce and invention as well as a source of risk. A smaller competitor might be safer, less intrusive, easier for parents to understand or built around a different business model. A policy that makes such experimentation less likely should not be smuggled into national practice through a settlement with the incumbent.

The payment’s size does not answer this objection. Several readers noted that $17 billion over a decade is manageable for a company that earned about $61 billion last year. They are right—and that strengthens the paradox. A cost that Meta can absorb may still be forbidding to the firm that might challenge it. “Pocket change” for the incumbent can be a locked gate for the entrant.

The privacy paradox is worse in the fine print

One reader made an especially sharp point: to verify parental authority, Meta may need information identifying the parents, proving guardianship and linking adults to children. The actual agreement goes further. It permits ID verification and facial-age estimation. It directs Meta to analyze posts, comments and other account activity for evidence of age; review the friend networks of accounts removed as under 13; link accounts through “soft-matching” models; and use signals such as device identifiers, phone numbers and email addresses to find secondary accounts. Meta must develop a model for predicting which users are under 13 and use it to evaluate accounts across its platforms.

The agreement includes data-minimization, deletion and security requirements, and those safeguards matter. But it also permits Meta to retain certain under-13 data to develop and test the age model. The settling attorneys general expressly promise not to sue Meta under COPPA or analogous state law for maintaining or using a child’s information for that purpose, subject to the agreement’s limits.

That is the privacy paradox in black and white. Government accused Meta of collecting too much information about children. Its remedy requires more powerful identity inference, more account matching and more scrutiny of user behavior, then grants Meta a limited legal peace for retaining some of the resulting data. The intentions may be protective. The institutional capability being built is still one that civil libertarians should examine very carefully.

No jury “proved” the states’ case

Some comments confused settlement with adjudication. “All those states sued, and they won,” one reader wrote. Another said government had “proved legally” that Meta caused mental illness in children. A third portrayed the settlement as a jury award from neighbors telling injured families, “We hear you.”

That did not happen in this case. The parties settled during trial. There was no verdict on the states’ claims and no finding that Meta caused a general youth mental-health crisis. The agreement says expressly that it is for settlement purposes only and is not an admission of liability, wrongdoing or violation of law. Meta may have settled because it feared catastrophic exposure, damaging evidence, years of litigation or all three. A settlement price tells us about litigation risk. It does not convert disputed allegations into scientific or legal findings.

The same care is required when discussing the money. Readers who assumed that every dollar will vanish into unrestricted state budgets went too far. The agreement identifies youth mental-health services, crisis lines, after-school programs, digital literacy and related remediation as permitted uses, and some states have adopted tighter restrictions. At the same time, it allows broad state-specific discretion, payments into some general funds, reimbursement of litigation and enforcement costs, and other lawful uses. It is not a direct compensation program for the families whose stories drove public support for the case. The public should track where the money goes and what it accomplishes, not merely admire the number in the headline.

Section 230 did not create every problem

One reader offered a wonderfully Washington solution: blame one statutory provision for everything. Repeal Section 230, he argued, and capitalism will take its course. Section 230 generally prevents an online service from being treated as the publisher or speaker of content supplied by someone else. It does not immunize a company from every claim about its own conduct, promises or product design. Indeed, these lawsuits proceeded precisely because courts allowed important claims based on Meta’s own alleged design and business practices to continue.

Wholesale repeal would also reproduce the competitive problem at the center of my column. If every platform faced sweeping liability for millions of user posts, Meta could build another compliance fortress. A startup could not. Reform may be warranted, but “repeal it and let capitalism work” ignores what ruinous, open-ended liability does to entry.

What a better policy would look like

One reader asked, fairly, whether my job was only to identify flaws or whether I had a better solution. Here is the beginning of one. Congress—or state legislatures acting through ordinary law—should establish clear, prospective and platform-neutral rules for services used by minors. Age assurance should disclose the minimum necessary information, preferably an age-band signal from a device or app store rather than identity documents collected anew by every platform. Parents should receive simple controls and retain the ability to impose stricter limits. Researchers should receive privacy-protected access to data so that causal claims and proposed remedies can be tested. Rules should contain measurable objectives, public reporting and sunset dates. Antitrust authorities should examine whether compliance costs or industry-wide settlements foreclose smaller competitors.

That program would not satisfy people who demand immediate punishment, and it would not please those who want government entirely absent. It would do something more useful: separate child protection from incumbent protection.

One of the best comments asked what happens if Meta complies fully and teenage depression, self-harm and bullying do not measurably improve. Will the states admit that other forces matter? Will they return the money? Of course not. The settlement does require an auditor to examine implementation and some measures of efficacy, but much of the underlying material will remain confidential, some recommendations are nonbinding, and Meta retains substantial discretion over design changes.

That makes independent public measurement essential. Over the next five and ten years, we should ask: Did the rules improve outcomes for children, or did usage simply migrate to other services? How many adults and minors were misclassified? How much additional personal information was collected or inferred? Where did the settlement money go? Did new competitors enter? Did Meta’s position strengthen? A policy sold as a historic victory should be able to survive a historical audit.

The children deserve protection. They also deserve a government capable of distinguishing protection from protectionism. Meta can survive $17 billion and 122 pages of obligations. The harder question is whether the next competitor can—and whether children will be any safer if it cannot.

That is the Meta paradox. The comment section did not refute it. In more than a few cases, it supplied the footnotes.

Sources

Meta multistate Settlement Agreement, Aug. 26, 2026: https://oag.dc.gov/sites/default/files/2026-08/Settlement%20Agreement%20FINAL%20-%20Fully%20Executed.pdf

National Academies of Sciences, Engineering, and Medicine, Social Media and Adolescent Health (2024): https://nap.nationalacademies.org/catalog/27396/social-media-and-adolescent-health

U.S. Surgeon General, Social Media and Youth Mental Health: https://www.hhs.gov/surgeongeneral/reports-and-publications/youth-mental-health/social-media/index.html

47 U.S.C. § 230: https://www.law.cornell.edu/uscode/text/47/230

Meta’s settlement with state attorneys general is being celebrated as a victory over Big Tech. It may turn out to be something closer to the opposite: a case study in how regulation ends up entrenching the companies it’s meant to restrain.

Meta will pay billions to settle claims involving Facebook and Instagram. More consequentially, it agreed to an elaborate regulatory regime for users under 18—daily use limits, nighttime restrictions, school-hour notification limits, enhanced age verification, restrictions on certain features, stronger parental controls, and scrutiny from an independent auditor and the attorneys general themselves.

Some of this may be sound policy. But stack the pieces together and paradoxes emerge, ones that ought to bother conservatives—and anyone wary of government’s expanding footprint in private markets.

Start with privacy. Part of the original complaint was that Meta collected too much information about children. The fix requires Meta to get considerably better at identifying them. A 15-year-old claiming to be 19 can’t be taken at his word, so Meta needs sharper age-assurance tools—and the harder government pushes to stop teenagers from slipping past the restrictions, the more sophisticated that identification machinery has to get. We are protecting children’s privacy by requiring a company to know more about them.

Parental authority runs into a similar knot. The settlement is billed as empowering parents, and in places it does. But plenty of these decisions used to belong to parents alone, and now they don’t. Nobody’s mother or father decided that two hours was the right amount of Instagram for a 15-year-old—the attorneys general did. Nobody’s parents set midnight as the cutoff either.

Giving Meta a mandate to let parents impose limits is one thing. Having government impose the limits itself, with parents free to loosen them if they notice and bother to act, is another. The first approach hands parents real authority. The second substitutes a state official’s judgment for theirs and calls it choice.

Parents aren’t helpless here, whatever the settlement implies. They buy the phones. They pay the wireless bills. They control the Wi-Fi. Nothing stops a parent from restricting apps, capping screen time or banning phones from bedrooms. Teenagers have been dodging house rules since long before Mark Zuckerberg was born, and the fact that enforcement is hard doesn’t mean the job transfers to a state attorney general.

Regulation by litigation raises its own questions. This settlement dictates when minors can use a communications platform, how long, when notifications may reach them, and which features they encounter—with an independent auditor checking Meta’s compliance every year and the states retaining continuing oversight. Whatever you call that, it functions like regulation.

Except Congress never passed it. No legislature debated whether two hours was the correct limit or midnight the correct bedtime. No agency worked through notice and comment to arrive at these rules. Prosecutors alleged potentially ruinous liability, and a set of product rules got negotiated into existence as the price of making the case go away.

The First Amendment angle deserves a mention too. Social-media feeds are, among other things, distribution systems for speech. Rules governing how lawful information gets recommended or delivered can raise real constitutional questions—even granting that minors’ rights and parental authority complicate the picture. A restriction that would draw constitutional scrutiny if government imposed it directly shouldn’t necessarily dodge that scrutiny because it arrived wrapped inside a consent judgment.

The deepest paradox is economic. For years the government’s message has been that Meta is too powerful—its acquisitions attacked, its dominance targeted for reduction. Now government is loading it up with expensive new obligations: age assurance, content controls, compliance infrastructure, parental-control architecture, an outside auditor checking the work. Meta can absorb costs like that without much trouble. Whether the next Instagram could is a different question entirely. Regulatory compliance behaves like a fixed cost, and a company of Meta’s size bears it far more easily than two programmers building a social app in a garage without Meta’s legal team, engineering bench or compliance department. What antitrust law is supposed to prevent—a barrier that keeps new entrants out—is exactly what this settlement risks building.

One feature of the deal is stranger still: Part of Meta’s eventual payment is tied to whether YouTube, TikTok and SnapChat adopt comparable protections and make comparable payments of their own. Meta, in other words, is actively pushing its rivals to sign onto the same framework. The logic isn’t hard to follow: Restrictions that apply only to Meta put it at a competitive disadvantage, and restrictions that apply to everyone erase that disadvantage. Government has managed something unusual: turning the target of its enforcement action into a lobbyist for extending that enforcement to its competitors.

If Meta broke children’s privacy laws, enforce them. If it deceives consumers, prosecute that. Give parents tools that actually work and hold Meta accountable for honoring the choices parents make. What’s harder to justify is turning prosecutors into product designers, and a settlement negotiated behind closed doors into national technology policy.

The contradiction sitting at the center of all this isn’t subtle. Government insists Meta has grown too powerful, then hands it responsibilities that used to belong to parents while piling on regulatory costs that smaller rivals may not survive. We are, somehow, asking the company to become both less powerful and more responsible for managing American childhood at the same time.

That isn’t a fix for Big Tech’s power. It might be the mechanism that makes it bigger.

This article also appeared in the Wall Street Journal.