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Take No Comfort
I've mentioned that the Microsoft monopoly--like all monopolies in
America--is under the special protection of the higher courts in the U.S.,
e.g., the 2nd tier court of appeals in Washington, the DC Circuit, which is
dominated by Reagan appointees, and of course the U.S. Supreme Court, with 8
of its 9 members (the exception being Stevens) having long records of
consistently voting for the monopolies appearing before them.
Some members here are taking comfort from the appointment, by the
trial judge in the Microsoft case, of Lawrence Lessig as a 'special master'
to unsnarl the high-tech issues for him by summer '98. While Lessig is
currently visiting at Harvard, his permanent teaching post is the University
of Chicago--home of the pro-monopoly Chicago 'school' of economics.
Perhaps the two most fanatical of the pro-monopoly judges in America are
Richard Posner, former FTC mole during my tenure there and currently on the
7th circuit (Chicago) court of appeals--a Reagan appointee--and Antonin
Scalia (another Reagan appointee) on the Supreme Court. Lessig has served
as law clerk to BOTH of them--Posner and Scalia. Guess what his 'report' on
Microsoft next summer is going to say? Case dismissed.
Then there's the news today that a handful of our 50 state attorneys
general-- and the EU, Japan, etc.--are looking at Microsoft's monopoly.
Forget it. A majority of our states do indeed have antitrust statutes but
their enforcement is almost entirely limited to the most blatant cases of
hard-core price fixing. And in reality they have no choice in the matter:
Their local (state) laws generally contain express provisions that they're
to be interpreted in accordance with our FEDERAL antitrust laws, i.e., as
interpreted by Posner and Scalia. Whether the state attorneys general go
into their own state courts or into U.S. courts, then, they'll be slapped
down by judges who think monopoly is wonderful. Keeps prices up, profits
up, stock prices up, investors prosperous and happy. Competition sucks:
Prices fall, profits shrink, stock prices plunge, widows and orphans lose
their (stock) savings, and the economy goes to hell in a handbasket. U.S.
judges, having been through Chicago's 'economic seminars' for 20 years, are
quite clear that monopoly is good, competition is bad.
More enlightened antimonopoly policy in the EU, Japan, Australia,
etc.? On the contrary, of the 60 plus countries with antitrust statutes on
the books, virtually none enforces even its most elementary anti-cartel
provisions: Corporate thievery by collusion on price, for example, is a way
of life in all of them. Bust up a real- world monopoly in Europe, Japan,
South Korea, South Africa, Australia, Brazil, Argentina, and so on? Of
course not. Monopoly pulls in the money and, with the big bucks, one can
buy 'antitrust protection' in all of the 200 countries around the globe.
Bill Gates--with a $40 billion bank account that was rising rapidly
the last time I heard--can and will write his own 'antitrust' laws in every
U.S. state and in the full roster of the 200 nations on the planet.
Antimonopoly laws, like a lot of others, atrophy if unused. Ignore
the small monopolies and bigger ones will develop. Businessmen acquire a
sense that monopoly is a 'natural' right, the normal state of industries and
markets across the nation and the globe. Buy up or crush your competitors.
Winner is the ONE 'left standing,' who then gets to rip off the public, via
monopoly prices, forevermore. The democratic ideal of economic
competition--industries in which dozens of contending firms are born,
renewed, replaced, and enlarge in numbers over time in healthy markets--is
an alien concept in 'judicial economics' around the world.
Charles Mueller, Editor
ANTITRUST LAW & ECONOMICS REVIEW