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Re: What Happened to Jury Trial In Antitrust Cases?

  On Sun, 7 Dec 1997 18:46:59 -0800 (PST) mgaffney@ucr.campus.mci.net
  (Mason Gaffney) writes:
  >Do any of my lawyer friends and relatives have any words of comfort, 
  >advice, for admonition for Charles Mueller?
  >>From: charles mueller <cmueller@METROLINK.NET>
  >>Subject:      What Happened to Jury Trial In Antitrust Cases?
  Ralph Anspach writes:
  Chuck Mueller should be commended for writing a script based on the
  anatormy of current antitrust cases.  I suggest that it be sent to all
  the 1,000 federal judges,  especially the newly appointed ones to  to
  help them clear their calendar with even more dispatch than they do now. 
        I imagine what happened to jury trials in antitrust cases  was that
  judges (by this I mean most of the judges)  are by nature pro-monopoly, 
  either by social group empathy (weasel words for "class"),  golden calf
  worshipping  or Chicago-School brainwashing.  They were appalled by a law
  of Congress which privatized much of antitrust enforcement through the
  triple damage device,  especially since juries were not always aware of
  what the judges  saw to be the needs of society to keepeconomic and
  political  power centralized in the great,  monopolistic  corporations. 
  When the privatization of antitrust suit flourished from the New Deal
  onwards,   the judges sprang into action . 
           They  found the technical  solution in the folklore of law which
  holds that every person  is equal  before the law, whether the person is
  a  mammoth corporation or a homeless shoplifter.   Since a compassionate 
  law already granted the judges the right to throw out cases against
  defendants before or after trial on legal or factual grounds,  it was
  only a short step to see the monopolist defendant  in antitrust suits as
  also deserving of court compassion  -  and then some.  Therefore,  the
  privatization of antitrust law came to be destroyed from about 1975 on by
  summary judgment in favor of the victimized monopolist defendants.
             Chuck MuellerÂ’s remedy is to get rid of judges in antitrust
  cases - good idea but perhaps not executable.   I would like to suggest
  for starters a more modest reform targeting the perhaps weakest link  in
  the judiciaryÂ’s killing of antitrust,  namely ChuckÂ’s  (3)  "If you're
  somehow able to carry on, the monopolist will then make a motion for
  "summary judgment," a request for a ruling by the judge that--even
  ASSUMING the truth of all the "facts" you've been able to muster via your
  "discovered" documents and depositions--you still have no case."
               Now #3  makes the hidden assumption that the judge has the
  gift of foresight (which under New York law incidentally is a felony when
  put into practice)  and therefore knows that no new evidence will emerge
  between #3 dismissal and the trial date and that during trial, 
  examination of witnesses and exhibits will do nothing to strengthen the
  plaintiffÂ’s case.  If the judge does have such foresight,  one has to
  wonder why we donÂ’t have all litigations resolved by judges at the end of
  discovery.  What a neat way of get rid of  court jams.   And  instead of 
  black robes,  we could attire our judges in robes suitable to prophets.
  So maybe we should begin our reform by challenging the prophecy principle
  which lies behind #3 and prohibit judges from exercising the power of 
                 Or am I missing something.
  Ralph Anspach