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U.S. 'Injustice' Sold to Olin/Schaife
A couple of members have posted reminders of the objective here,
namely, to SOLVE the problem of the Microsoft monopoly. Find a solution,
then find a way to implement it. Exactly. And my reports on the
pro-monopoly stance of the U.S. judges--including 8 of the 9 members of the
Supreme Court--have been offered as a part of precisely that inquiry. If we
Americans find something to be demonstrably *unfair,* we confidently expect
our judges to fix it. 'Justice' is guaranteed to us, is it not, by our
founding documents--our luminous Declaration of Independence, our
magisterial Constitution--and our glorious national tradition of 'equal
justice to all'? My message here has been: Won't work this time. Our
country's judiciary has, since roughly 1975, been firmly on the side of
monopoly. The side of injustice.
To walk into a U.S. court in 1997 with the idea of challenging a
monopoly is to invite ridicule--not to mention bankruptcy. 'Fairness' is no
longer an element in the antitrust calculus. A 'level playing field' is
considered a joke. Battle to the death. The last firm 'left standing' is
the Darwinian 'fittest'--and he's entitled to the *spoils* of his victory,
the right to loot the consuming PUBLIC (via monopoly prices) until he's been
replaced in some distant future by an even more 'efficient' corporate
predator. Monopoly is 'efficent.' Monopoly is 'innovative.' Monopoly is
'pro-consumer.' Monopoly is GOOD.
Now, back to the problem of 'fixing' the Microsoft monopoly. The
U.S. judges aren't going to do it. They don't believe in competitive
economic markets. They consider them inefficient, wasteful, technologically
backward, and a threat to America's future in the global economy. Bill's
legal team thus knows that it has virtually all of the country's 1,000
judges in its back-pocket. It also knows that Justice's antitrust division
(a) depends on a staff that basically agrees with the judges and (b) has,
for some 20 years, been out of the business of trying cases and is therefore
legally incompetent--even if it had the will and the political backing--to
mount a serious anti-monopoly campaign against a corporate adversary with
Bill Gates' $40 billion plus war-chest.
If America's judges, as I maintain, are overwhelmingly on Bill's
side, then what are the OPTIONS for those who don't like his monopoly? Here
are the ones that occur to me:
(1) Persuade the U.S. JUDGES that they're wrong.
(2) Persuade the U.S. CONGRESS that it should rewrite our antitrust
laws-- taking them out of the hands of our federal judges or otherwise
making them 'judge-proof.'
(3) Persuade the U.S. MEDIA that, notwithstanding their OWN
monopolies, Adam Smith was right in his conclusion that monopoly is
generally a very bad idea, one that grievously impairs the 'wealth of
(4) Persuade the U.S. PUBLIC that its media, its national
legislature, and its federal judges are all wrong in their 1997 embrace of
economic monopoly--that, again as Adam Smith emphasized, it is simply a
private 'tax' on the rest of society, an 'absurd' one that inevitably leads
to corporate bloat, inefficiency, stagnation, and finally relative poverty
for the citizens of the country that tolerates it.
Monopoly versus competition. A policy choice to be made by a nation
but first by the many constituent groups that, together, create a country.
An economy made up of 1-firm industries--or one composed on, say, Adam
Smith's 20-firm model? Which is BETTER for the world's 200 countries?
Enter me in the Smith column. But how to get there? In a democracy, one
needs 51% of the vote.
Note that 'persuasion' is accordingly the task in all 4 of my cases,
above. To bring the Microsoft monopoly to heel, one would have to persuade
either (1) the judges, (2) the legislature, (3) the media, or (4) the public
at large. It must, by definition, BE a 'persuasive' case--competition is
better (for the citizenry) than monopoly. There must be persuasive evidence
behind it. And, in the last analysis, one must line up persuasive ADVOCATES
to present it.
The issue in every monopoly case is an 'economic' one. Supply and
demand. Get control of the supply--a chokehold somewhere along the way--and
(if the consumer demand is there) you can inflate the price, causing your
profits to soar--a la Bill Gates and his $40 billion plus private fortune.
Since the issue is one that turns on the hydraulics of economic forces--and
because the task at hand is to create a CHANGE in one of these group's
economic opinions--which discipline would you especially like to have on
your side? Sociology? Physics? Political science? Lowly economics?
Of course. To persuade our 1,000 federal judges, our 535 members of
Congress, our several thousand media executives, and our 270 million
citizens--on any economic question--one's first necessity would seemingly be
to win the support of the professional ECONOMIC community, particularly (in
this instance) the part of it that specializes in antimonopoly policy. A
yea vote from a majority of the estimated 100,000 economists worldwide would
be, it seems to me, an unambiguous plus here. Do America's (and the
world's) economists come down on the healthy trustbusting side? By a
roughly 85% majority, according to the only polls I'm aware of.
I've repeatedly urged Ralph to seek the aid of those of the
country's antitrust (industrial-organization) economists, if any, who
haven't sold out yet to the long roster of our corporate monopolists--who,
if asked by him, might be willing to speak up on behalf of Adam Smith's
competitive economic markets.
I've also urged the members of this list--particularly those with
expertise in either antitrust law/economics or computer technology--to
exercise their democratic right (and duty) to share their evidence and
opinions on the Microsoft monopoly with the attorney general (Janet Reno),
with the members of Congress, and with the media. It's called democracy.
The response to my suggestion there? Zilch. Nada. Let George do it.
Monopoly trumps democracy, presumalby because all believe, at bottom, that
the monopolist is going to win--and that opposing him will be personally
costly in the end.
Again, put your money on Bill's legal team.
If you're curious as to how America's power structure--its 1,000
judges, 535 members of Congress, and its media sages--was seduced by the
peculiar notion that monopoly is 'pro-consumer,' the following is one of my
earlier posts on how the right-wing foundations (Olin, Schaife, et al) used
their virtually unlimited millions of dollars to kill U.S. antimonopoly
policy in the late '70s and early '80s, how they managed to be so
'persuasive.' They bought the national forum--and closed it to all
competing voices. D. McCullaugh tells us that 'only leftists' are 'allowed
to hold seminars for judges.' In my 39 years in the antimonopoly field,
I've never heard of any such 'leftist' judicial training program for federal
judges. He has in mind the Olin and Schaife programs? Besides, he says,
'if Charles had half a clue, he'd know George Mason's law and economic
schools are not particularly conservative, but are instead free-market and
libertarian.' The latter, he assures us, 'are not pro-big business.'
'Free-market and libertarian' isn't 'conservative'? Not 'pro-big
business?' Libertarians--e.g., Ayn Rand's disciples--are trust-busters?
GMU's law/economics 'seminars' for the U.S. judges are an ongoing scandal.
They're operating full-tilt at this very moment. Bill Clinton's nominees to
the federal bench, like their Reagan/Bush predecessors, are promptly invited
to attend--to spend 2 weeks at a luxurious Key Biscayne or other warm
tropical resort in mid-winter listening to a $500 per hour Chicago theorist
explaining why Monopoly Is Good.
After their 2 weeks of indoctrination in the sun, an endless stream
of Chicago literature follows them back to their chambers in the north. The
result? All antitrust cases are summarily killed. Complaints dismissed out
of hand. Summary judgments granted before trial. Directed verdicts for the
monopoist during and after trial. Pro-monopoly jury instructions that leave
juries no choice but to find for the monopolist. Overturned jury verdicts.
Bottom line: Repudiation of the ancient right to jury trial under the 7th
amendment to the U.S. Constitution.
America's judiciary has disgraced itself it the antitrust area. And
having sold its honor there for 2 weeks in the sun--justice denied to 1500
antitrust plaintiffs each year--the country now knows the petty price of
judicial 'approval' in general. The millions of Olin/Schaife dollars--and
those of their fellow right-wing loonies-- have, sadly, made a mockery of
our proudest national heritage, 'equal justice under law.' Antimonopoly law
in the U.S. has been bought and sold--and gone to the highest bidders. The
mechanics are elaborated below in one of my earlier posts on George Mason
University's carrying on of a systematic 20-year indoctrination of the
country's federal judges at its sunny Florida 'retreats.'
This scandal is a continuing one. Has Joel Klein, Justice's
antitrust chief, spoken up against it? Did his predecessor, Anne Bingaman,
make even one speech denouncing this ongoing miseducation of America's
judges? Has Robert Pitofsky, the FTC's chairman, uttered a public word on
the subject? Has Ralph Nader made a speech, or written a newspaper column,
on the issue? Why should he push Justice to bring a case against the
Microsoft monopoly if he has no objection to the crippling operation of an
ongoing right-wing propaganda mill dedicated to teaching the nation's judges
that Monopoly Is Good?
I was interviewed a couple of days ago by a journalist representing
a magazine in the computer industry with a reported circulation of some 1.5
million. Would 1.5 million letters complaining of Bill's
monopoly--addressed to our judges, members of Congress, and newspaper/TV
editors--solve that problem? As I've inquired before, does water run
Charles Mueller, Editor
ANTITRUST LAW & ECONOMICS REVIEW
George Mason University (Fairfax, Virginia) hosts a high-price
propaganda mill for the Fortune 500 and the corporate foundations they've
spawned, via Henry Manne's 'Law & Economics Center' there, an operation that
has been 'educating' U.S. judges in Olin/Schaife 'economic' notions for over
20 years. The central problem is that non-Chicago 'teachers' have always
been excluded (Paul Samuelson was the 'token liberal' used--for a very high
price--to give a phony color of diversity to a loaded agenda and then sent
If this "Center" was offering a balanced presentation, with equal
time to distinguished non-Chicago economists, I would of course have no
criticism of its program for the judges, nor would anyone else. It is
precisely the ONE-SIDEDNESS that is the curse here, the evil that assures
victory for the paymasters behind it, the rich corporations and their
foundations. If the opposing side was allowed to be heard in these
"seminars," the latter would be worthless to their corporate sponsors and
would be abandoned immediately:
The judges, being economically innocent but not stupid, would be
quite unpersuaded by Manne's agenda for laissez-faire monopoly IF they were
allowed to hear the other side at the same time, in the same forum. The day
he announces that distinguished non-Chicago economists will be allowed to
share the podium on equal terms is the day his FUNDING will suddenly
evaporate. Manne knows this only too well, which is of course why he won't
allow non-Chicagoans to participate--or even allow me to attend with the
judges as an observer.
EXCLUSION of opponents is thus the key ingredient in the "success"
of this program that has so smoothly suckered its judicial and academic
attendees. This is of course the hallmark--as I pointed out earlier--of
propaganda, not of a search for truth. We've seen its fruits over the
centuries in countries where the prosecutor puts in his case and that's
it--no rebuttal by the defendant is allowed. The incumbent politician puts
in his case via TV and that's it--his opponents aren't allowed into the
studio. The newspaper carries the party line and that's it--opposing
parties are banned from its pages.
The 'economic seminars' for U.S. judges sponsored by the
libertarian/right- wing/conservatives at George Mason University are a fraud
on the nation's citizens, a pro-monopoly scam bought and paid for by
Olin/Schaife and other loonies of the far right. Open these fraudulent
judicial 'seminars' to leading economists of all persuasions and they'll
fold within the week.
Charles Mueller, Editor
ANTITRUST LAW & ECONOMICS REVIEW