3 ms·

> 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

by 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

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.