5 ms·

> The United States and European Union have, at least since the Reagan Administration, differed on this point: the U.S. is primarily concerned with consumer wel

by zeteo 9y ago

> The United States and European Union have, at least since the Reagan Administration, differed on this point: the U.S. is primarily concerned with consumer welfare [...] The European Commission, on the other hand, is explicitly focused on competition What is missing here is that the US has diverged from a previously common interpretation. Between roughly 1890 (Sherman Act) and 1982 (Reagan administration antitrust guidelines) the US authorities were mainly concerned with competition too (breakup of Standard Oil: 1911; breakup of Bell System: 1984). As late as 2001 Microsoft had a serious brush with antitrust law for anticompetitive practices [1]. There's a case to be made that the US is currently just going through a lapse in enforcement. [1] https://en.wikipedia.org/wiki/United_States_v._Microsoft_Corp https://en.wikipedia.org/wiki/United_States_v._Microsoft_Cor....

DannyBee 9y ago
"Between roughly 1890 (Sherman Act) and 1982 (Reagan administration antitrust guidelines) the US authorities were mainly concerned with competition too (breakup of Standard Oil: 1911; breakup of Bell System: 1984)." This is the wrong timeline. The spectrum shifted towards consumer welfare very early on (right after standard oil), because they found the legal definitions in the sherman act too broad to be useful (every contract is a restraint of trade). If you read the bell cases, etc that you cite, they were already focused on consumer welfare. This is because otherwise the bounds of antitrust are limitless. Every competition between businesses harms a business :) Also note: The AT&T case was settled. The original case was filed in 1949, not 1984. You can see this in the 1982 settlement, which is a modification of the final judgment from 1956: http://web.archive.org/web/20060830041121/http://members.cox.net/hwilkerson/documents/AT&T_Consent_Decree.pdf http://web.archive.org/web/20060830041121/http://members.cox... (a lot of folks are not aware of the 1949 case, it seems :P)
- zeteo 9y ago
  > The spectrum shifted towards consumer welfare very early on You seem unaware that Bork's Antitrust Paradox only came out in 1978 [1]. Yes, it's not surprising that its views would appear in cases from the '80s. Here's prof. Orbach in the Washington Post on Bork's influence [2]: > Antitrust was defined by Robert Bork. I cannot overstate his influence. [...] Antitrust [in 1960] was about protecting small businesses. [Bork] built a full framework about how antitrust should be more about economic efficiency than about helping small businesses. [...] He wrote a sentence: Congress enacted the Sherman act [ed - the main antitrust act] as a "consumer welfare prescription.” The Supreme Court adopted that sentence in 1979. That is the stated goal in antitrust today. It is a big deal. A huge deal. In antitrust, it’s operational. Robert Bork defined it. > In antitrust, antimonopoly law, it is easy to think about why big is bad. The view is, "Big businesses are bad. We should protect small businesses. We should not have big businesses." So that’s what happened in the history of the Sherman Act, between 1880 and 1960. [1] https://en.wikipedia.org/wiki/The_Antitrust_Paradox https://en.wikipedia.org/wiki/The_Antitrust_Paradox [2] https://www.washingtonpost.com/news/wonk/wp/2012/12/20/antitrust-was-defined-by-robert-bork-i-cannot-overstate-his-influence/?utm_term=.d89d3fa384d6 https://www.washingtonpost.com/news/wonk/wp/2012/12/20/antit...
  - DannyBee 9y ago
    "ou seem unaware that Bork's Antitrust Paradox only came out in 1978 [1]" I'm quite aware. " Antitrust [in 1960] was about protecting small businesses." Citation? I gave you a case from the late 40's that was about protecting consumer welfare. You give me a news article about a law professor who loved robert bork's work? Look, Bork was influential for sure. I can and have cited you cases where, over a short period of time, the supreme court decided that the sherman act was unworkable (see all the various changes around resale price maintenance, over the years as well), and started pushing towards other theories for antitrust. Contrary to these claims, it's not "Bork wrote a book, things changed overnight". That's just a history rewrite. Bork was the final nail in the coffin.
    - zeteo 9y ago
      > Citation? How about Bork himself in 1963 [1]: > The incipiency theory starts from the idea that it is possible to nip restraints of trade and monopolies in the bud before they blossom to Sherman Act proportions. It underlies the Clayton Act, the Robinson-Patman Act, and the Federal Trade Commission Act. [...] The courts have used the incipiency notion as a license for almost unlimited extrapolation, reasoning from any trend toward concentration in an industry that there is an incipient lessening of competition. [...] In case after case the FTC, for example, nails down its finding that competition is injured with the testimony of competitors of the respondent that his activities and aggressiveness may or have cost them sales. [...] When the head of the Antitrust Division or the FTC reports to a congressional committee, protocol requires that he wear a suitable number of bloody scalps of businessmen at his belt. [1] https://www.scribd.com/document/117500897/The-Crisis-in-Antitrust https://www.scribd.com/document/117500897/The-Crisis-in-Anti...
      - DannyBee 9y ago
        Err, Bork was advocating for his view, so i'm not sure he's a good source? Look, your argument amounts to: For 60+ years, between 1920 and 1982, there was literally no legal theory development in antitrust. No other cases, no thoughts by anyone, no articles. Then suddenly, Bork came on the scene and redefined everything overnight! Certainly that would have made my antitrust law classes a lot shorter, but i don't think it's reality :) Let me try a different source for you Here's what one of the authors of the act (Senator Hoar) had to say about it: ""... [a person] who merely by superior skill and intelligence...got the whole business because nobody could do it as well as he could was not a monopolist..(but was if) it involved something like the use of means which made it impossible for other persons to engage in fair competition."" Oh look, a consumer welfare argument. Also, here's another case from the supreme court in 1940 (Apex Hosiery Co. v. Leader 310 U. S. 469) "The goal [of the sherman act] was to prevent restraints of free competition in business and commercial transactions which tended to restrict production, raise prices, or otherwise control the market to the detriment of purchasers or consumers of goods and services, all of which had come to be regarded as a special form of public injury." (emph mine). A very clear consumer welfare argument. They also cite supreme court cases.

by zeteo 9y ago

DannyBee 9y ago

"Between roughly 1890 (Sherman Act) and 1982 (Reagan administration antitrust guidelines) the US authorities were mainly concerned with competition too (breakup of Standard Oil: 1911; breakup of Bell System: 1984)." This is the wrong timeline. The spectrum shifted towards consumer welfare very early on (right after standard oil), because they found the legal definitions in the sherman act too broad to be useful (every contract is a restraint of trade). If you read the bell cases, etc that you cite, they were already focused on consumer welfare. This is because otherwise the bounds of antitrust are limitless. Every competition between businesses harms a business :) Also note: The AT&T case was settled. The original case was filed in 1949, not 1984. You can see this in the 1982 settlement, which is a modification of the final judgment from 1956: http://web.archive.org/web/20060830041121/http://members.cox.net/hwilkerson/documents/AT&T_Consent_Decree.pdf http://web.archive.org/web/20060830041121/http://members.cox... (a lot of folks are not aware of the 1949 case, it seems :P)

zeteo 9y ago
> The spectrum shifted towards consumer welfare very early on You seem unaware that Bork's Antitrust Paradox only came out in 1978 [1]. Yes, it's not surprising that its views would appear in cases from the '80s. Here's prof. Orbach in the Washington Post on Bork's influence [2]: > Antitrust was defined by Robert Bork. I cannot overstate his influence. [...] Antitrust [in 1960] was about protecting small businesses. [Bork] built a full framework about how antitrust should be more about economic efficiency than about helping small businesses. [...] He wrote a sentence: Congress enacted the Sherman act [ed - the main antitrust act] as a "consumer welfare prescription.” The Supreme Court adopted that sentence in 1979. That is the stated goal in antitrust today. It is a big deal. A huge deal. In antitrust, it’s operational. Robert Bork defined it. > In antitrust, antimonopoly law, it is easy to think about why big is bad. The view is, "Big businesses are bad. We should protect small businesses. We should not have big businesses." So that’s what happened in the history of the Sherman Act, between 1880 and 1960. [1] https://en.wikipedia.org/wiki/The_Antitrust_Paradox https://en.wikipedia.org/wiki/The_Antitrust_Paradox [2] https://www.washingtonpost.com/news/wonk/wp/2012/12/20/antitrust-was-defined-by-robert-bork-i-cannot-overstate-his-influence/?utm_term=.d89d3fa384d6 https://www.washingtonpost.com/news/wonk/wp/2012/12/20/antit...
- DannyBee 9y ago
  "ou seem unaware that Bork's Antitrust Paradox only came out in 1978 [1]" I'm quite aware. " Antitrust [in 1960] was about protecting small businesses." Citation? I gave you a case from the late 40's that was about protecting consumer welfare. You give me a news article about a law professor who loved robert bork's work? Look, Bork was influential for sure. I can and have cited you cases where, over a short period of time, the supreme court decided that the sherman act was unworkable (see all the various changes around resale price maintenance, over the years as well), and started pushing towards other theories for antitrust. Contrary to these claims, it's not "Bork wrote a book, things changed overnight". That's just a history rewrite. Bork was the final nail in the coffin.
  - zeteo 9y ago
    > Citation? How about Bork himself in 1963 [1]: > The incipiency theory starts from the idea that it is possible to nip restraints of trade and monopolies in the bud before they blossom to Sherman Act proportions. It underlies the Clayton Act, the Robinson-Patman Act, and the Federal Trade Commission Act. [...] The courts have used the incipiency notion as a license for almost unlimited extrapolation, reasoning from any trend toward concentration in an industry that there is an incipient lessening of competition. [...] In case after case the FTC, for example, nails down its finding that competition is injured with the testimony of competitors of the respondent that his activities and aggressiveness may or have cost them sales. [...] When the head of the Antitrust Division or the FTC reports to a congressional committee, protocol requires that he wear a suitable number of bloody scalps of businessmen at his belt. [1] https://www.scribd.com/document/117500897/The-Crisis-in-Antitrust https://www.scribd.com/document/117500897/The-Crisis-in-Anti...
    - DannyBee 9y ago
      Err, Bork was advocating for his view, so i'm not sure he's a good source? Look, your argument amounts to: For 60+ years, between 1920 and 1982, there was literally no legal theory development in antitrust. No other cases, no thoughts by anyone, no articles. Then suddenly, Bork came on the scene and redefined everything overnight! Certainly that would have made my antitrust law classes a lot shorter, but i don't think it's reality :) Let me try a different source for you Here's what one of the authors of the act (Senator Hoar) had to say about it: ""... [a person] who merely by superior skill and intelligence...got the whole business because nobody could do it as well as he could was not a monopolist..(but was if) it involved something like the use of means which made it impossible for other persons to engage in fair competition."" Oh look, a consumer welfare argument. Also, here's another case from the supreme court in 1940 (Apex Hosiery Co. v. Leader 310 U. S. 469) "The goal [of the sherman act] was to prevent restraints of free competition in business and commercial transactions which tended to restrict production, raise prices, or otherwise control the market to the detriment of purchasers or consumers of goods and services, all of which had come to be regarded as a special form of public injury." (emph mine). A very clear consumer welfare argument. They also cite supreme court cases.