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Antitrust Bill of Rights (6)
Can a country have an effective antimonopoly policy if its
implementation and interpretation is put into the hands of its judges? I
know of no such country. Judges the world over tend to see themselves as
protectors of the powers that be and especially as the guardians of
"property" rights--among which they almost invariably include the "right" to
build a monopoly and harvest its full fruits. The notion of a PERPETUALLY
competitive market--one in which 10 or more firms of roughly equal size come
and go, continue their rivalry indefinitely, and are never able to charge a
higher-than-competitive price for any sustained period of time--is an alien
Instead, they tend to see markets in Darwinian terms--a fight to the
death in each industry, with inevitable bankruptcy for all but one firm and
thereafter a never-ending stream of (justly earned) monopoly profits for the
one left standing. It is, needless to say, a primitive and undemocratic
(not to mention unrealistic) view of the economic world.
The routine is a familiar one. A democratic legislature enacts a
well- intentioned antimonopoly law--using the traditionally broad, general
terms (declaring illegal "monopolies," "restraints of trade," "unfair"
practices, and so on)-- and leaves to its judges the day-to-day chore of
deciding, on a case-by-case basis, what is really meant by those Delphic
terms. The judges, applying their own pro- monopoly preferences, kill it in
short order. Monopoly thrives, competition withers. The story is the same
around the world. You can't have a serious antimonopoly policy if your
judges are going to control it.
The following is #6 in my "model" Antitrust Bill of Rights.
BILL OF RIGHTS
6. Over 60 of the world's 200 countries have antimonopoly laws on
their books. It is a commonplace observation, however, that none has yet
succeeded in preventing or eliminating even the most egregious of its
monopolies. The most frequent barrier to an effective antimonopoly policy
is the national judiciary. Legislatures pass adequate laws but the judges,
having in the main a pro-monopoly bias, routinely gut them, "interpreting"
them to death. They generally belong to wealthy families, have spent their
professional lives in the service of large corporate clients, and thus
harbor an ideology that is commonly hostile to the enforcement of such laws.
Being relatively few in number, they are also vulnerable to systematic
"educational" programs sponsored and paid for by reactionary, right-wing
organizations and interests. Accordingly, the antimonopoly policy of this
Nation shall be kept free from the control of its judiciary.
Charles Mueller, Editor
ANTITRUST LAW & ECONOMICS REVIEW