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People are smearing Lina Khan because she is radically different, yes. People are also smearing Lina Khan because she keeps failing in court in very bad, obviou

People are smearing Lina Khan because she is radically different, yes. People are also smearing Lina Khan because she keeps failing in court in very bad, obvious ways. She is also consistently ignoring the advice of the very seasoned lawyers in her own organization, who are not in political positions (federal agencies have both career employees and political ones). Her organization has started to lose faith with her, and even scores in things like "honesty and integrity" dropped by 50% (from 84 points to <40 points), with comments pointing out they feel like they are being forced to pursue cases with frivolous arguments. See FEVS[1]. None of these are good things. Cory wants her to be successful because she's a true believer, and she is a true believer in things he supports. But the true believers are rarely (maybe never) successful when they have zero pragmatism. So far, she has zero pragmatism. She is consistently losing in court (Meta/Within, Lumina/Grail, Activision/MS, Altria/Juul, etc). If Lina continues on the path she is on, she will be totally unsuccessful. She will change nothing, and will in fact, set things back and make people unwilling to try it again. The Activision case is a great example - the FTC's arguments are just silly. I think this merger is a bad thing, but the tact the FTC is taking stands no chance of winning. She will move precisely nothing forward in the world at this rate - it will only get harder - losses make it more likely you keep losing, people scrutinize arguments harder, etc. The kind of change she wants and Cory wants doesn't happen by throwing abstract policy positions at the wall (in the form of court cases), even if the positions are ones I mostly agree with. It happens by moving your legal position from where it is, in reasonable, logical steps, to where you want it to be, and convincing courts along the way to take those steps with you. That may suck in a lot of ways - especially when you think you are very right and everything sucks (and you might be!). But bringing people along on the journey is necessary for courts too, the same way it is for any other part of society. The righteousness of your cause or position rarely matters to the speed at which you can do successfully something about it . [1] These are not employees who love or hate any particular company or industry, and have maintained high scores despite plenty of changes in administrations over the decades.

hotpotamus 3y ago
Why do you think the Activision merger is bad? And how could the FTC change their case to win?
- worrycue 3y ago
  Not the person you were replying to. Consoles rely on 3rd party support to be successful. Microsoft just bought out one of the largest 3rd party publishers in the gaming industry. By failing to stop it, it's signaling to other players in the console space that they shouldn't bother continuing in the business as there is no way they can compete with the spending power of Microsoft - whose market cap is >14x both their competitors combined.
- jamesliudotcc 3y ago
  Khan and the "Neo-Brandeisians" have a legal theory, which to oversimplify, holds that the true meaning of the antitrust statutes is "big business is antithetical to democracy, and so the federal government is empowered to stop businesses getting bigger." The current precedent in antitrust holds that antitrust means that the government is only empowered to act when bigness results in consumer harm, mostly in the form of higher prices. Note, legal theories are not like scientific theories! Courts can be influenced by legal theories. And in fact, the current mainstream in antitrust, which focuses on consumer harm, started as a legal theory propounded by the likes of Bork (yes, that Bork) and Posner. Because it has been adopted by the courts, especially by the Supreme Court, it is the precedent. Trial courts are bound to follow the precedent! So, of course the legal strategy was bound to lead to losses in court. You can win under this strategy, but only in the Supreme Court, which isn't bound to follow the precedent, but mostly prefers to follow its own precedent. Getting to the Supreme court typically takes years, and it requires the Supreme Court wanting to take the case. We'll see in the next stage if this was the strategy. If I were pursuing this strategy, I would say so. Then the losses wouldn't hurt morale!
  - xp84 3y ago
    > legal theories are not like scientific theories! Good advice. Because unlike a scientific theory no one can really prove (or disprove) her opinion about what policy should be applied to antitrust issues. It doesn’t matter in politics who’s “right” in this way, just who can convince others that they’re right. (the “right” people too)
  - cafard 3y ago
tremorscript 3y ago
Cory is a bit radical, yes. However, some of your talking points I suspect are coming from the WSJ which I think is the Cory for the other side. Philosophically, I think one must not be afraid to lose, it leads to inaction. https://www.goodreads.com/book/show/34397551-the-chickenshit-club https://www.goodreads.com/book/show/34397551-the-chickenshit...
- DannyBee 3y ago
  I have no talking points, i'm giving you my own analysis. This is a pretty obvious situation, you will find views like mine (and cory's!) in a lot of places, across the ideological spectrum. Even if you just throw out the clear astroturfing, you will find this - there are plenty of people who believe that amazon, et al are doing a lot of harm, but that she is not going to be able to the fix that effectively with the current approach. Plus, again, the people who do this for a living in her organization don't buy it either. I've met a number of them over the years living in DC (plenty of then had been there a long ass time). These are people who believe in the overall mission, but think the tactics are bad. 71 senior-level attorneys left in 2021-2022 (99 total but 27 were planned retirements, so let's give them a pass). That's a lot for them - the most in decades. https://news.bloomberglaw.com/antitrust/senior-ftc-staff-departures-spike-as-ambitious-agenda-looms https://news.bloomberglaw.com/antitrust/senior-ftc-staff-dep... I'm not sure how you can look at all of this and think it's working well. She's even now arguing that the fact that she's losing means that Congress should give her more power. This is overall a bad tactical plan. It's fine to lose occasionally. Constantly losing like she is doesn't work though. The book you cite doesn't even try to argue that losing often is a good idea (AFAIK, it's been a while since I read it. It was a tough read) That's the thing - cases are winnable, just not by completely out there theories. Take one of them to task on something with only moderate or mild extension of current legal theories. You don't need the world's strongest remedy. You just need to win. Then use that to extend your theories a little more and then a little more and a little more. That is how this works - small change until the large thing you wanted to achieve is just a step away. This approach has been wildly successful, both for conservatives and liberals in the courts. The attempts at sudden leaps sometimes works, but like it's a few percent vs very high % by strategically moving forward. Once you do that, admiral tarkin was right, "fear will keep the other systems in line" Large companies were afraid of what happened to MS, even though it wasn't broken up. This let the next group of small companies grow big. Nobody is afraid of anyone who loses constantly. (And the ninth circuit just denied their bid to stay the judge's order. Of any circuit that might bite, the ninth would be the one)

hotpotamus 3y ago

Why do you think the Activision merger is bad? And how could the FTC change their case to win?

worrycue 3y ago
Not the person you were replying to. Consoles rely on 3rd party support to be successful. Microsoft just bought out one of the largest 3rd party publishers in the gaming industry. By failing to stop it, it's signaling to other players in the console space that they shouldn't bother continuing in the business as there is no way they can compete with the spending power of Microsoft - whose market cap is >14x both their competitors combined.
jamesliudotcc 3y ago
Khan and the "Neo-Brandeisians" have a legal theory, which to oversimplify, holds that the true meaning of the antitrust statutes is "big business is antithetical to democracy, and so the federal government is empowered to stop businesses getting bigger." The current precedent in antitrust holds that antitrust means that the government is only empowered to act when bigness results in consumer harm, mostly in the form of higher prices. Note, legal theories are not like scientific theories! Courts can be influenced by legal theories. And in fact, the current mainstream in antitrust, which focuses on consumer harm, started as a legal theory propounded by the likes of Bork (yes, that Bork) and Posner. Because it has been adopted by the courts, especially by the Supreme Court, it is the precedent. Trial courts are bound to follow the precedent! So, of course the legal strategy was bound to lead to losses in court. You can win under this strategy, but only in the Supreme Court, which isn't bound to follow the precedent, but mostly prefers to follow its own precedent. Getting to the Supreme court typically takes years, and it requires the Supreme Court wanting to take the case. We'll see in the next stage if this was the strategy. If I were pursuing this strategy, I would say so. Then the losses wouldn't hurt morale!
- xp84 3y ago
  > legal theories are not like scientific theories! Good advice. Because unlike a scientific theory no one can really prove (or disprove) her opinion about what policy should be applied to antitrust issues. It doesn’t matter in politics who’s “right” in this way, just who can convince others that they’re right. (the “right” people too)
- cafard 3y ago

tremorscript 3y ago

Cory is a bit radical, yes. However, some of your talking points I suspect are coming from the WSJ which I think is the Cory for the other side. Philosophically, I think one must not be afraid to lose, it leads to inaction. https://www.goodreads.com/book/show/34397551-the-chickenshit-club https://www.goodreads.com/book/show/34397551-the-chickenshit...

DannyBee 3y ago
I have no talking points, i'm giving you my own analysis. This is a pretty obvious situation, you will find views like mine (and cory's!) in a lot of places, across the ideological spectrum. Even if you just throw out the clear astroturfing, you will find this - there are plenty of people who believe that amazon, et al are doing a lot of harm, but that she is not going to be able to the fix that effectively with the current approach. Plus, again, the people who do this for a living in her organization don't buy it either. I've met a number of them over the years living in DC (plenty of then had been there a long ass time). These are people who believe in the overall mission, but think the tactics are bad. 71 senior-level attorneys left in 2021-2022 (99 total but 27 were planned retirements, so let's give them a pass). That's a lot for them - the most in decades. https://news.bloomberglaw.com/antitrust/senior-ftc-staff-departures-spike-as-ambitious-agenda-looms https://news.bloomberglaw.com/antitrust/senior-ftc-staff-dep... I'm not sure how you can look at all of this and think it's working well. She's even now arguing that the fact that she's losing means that Congress should give her more power. This is overall a bad tactical plan. It's fine to lose occasionally. Constantly losing like she is doesn't work though. The book you cite doesn't even try to argue that losing often is a good idea (AFAIK, it's been a while since I read it. It was a tough read) That's the thing - cases are winnable, just not by completely out there theories. Take one of them to task on something with only moderate or mild extension of current legal theories. You don't need the world's strongest remedy. You just need to win. Then use that to extend your theories a little more and then a little more and a little more. That is how this works - small change until the large thing you wanted to achieve is just a step away. This approach has been wildly successful, both for conservatives and liberals in the courts. The attempts at sudden leaps sometimes works, but like it's a few percent vs very high % by strategically moving forward. Once you do that, admiral tarkin was right, "fear will keep the other systems in line" Large companies were afraid of what happened to MS, even though it wasn't broken up. This let the next group of small companies grow big. Nobody is afraid of anyone who loses constantly. (And the ninth circuit just denied their bid to stay the judge's order. Of any circuit that might bite, the ninth would be the one)