2 ms·

roughly: In the US, the state has to prove consumer harm. In the EU, the state has to prove competitor harm.

CPLX 3y ago
No it doesn't. There's truth to your statement in the sense that there's now a generation of confused judges that think this is true. But the plain language of US antitrust statutes is pretty clear on this point, simply engaging in certain kinds of anti-competitive behavior is illegal, you definitely do not need to prove that the illegal behavior had specific effects.
- whiddershins 3y ago
  I think you are correct, the harm is assumed.
- jessriedel 3y ago
  The plain language of the statute doesn't matter much once legal precedent is entrenched. This is especially true when the plain language is incredibly underspecified. For those who don't know, the Sherman antitrust act has only two key paragraphs (and six procedural paragraphs). > Sec. 1. Every contract, combination in the form of trust or other- wise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, at the discretion of the court. > Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof; shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. https://www.archives.gov/milestone-documents/sherman-anti-trust-act https://www.archives.gov/milestone-documents/sherman-anti-tr... If we strip out the penalties, the words defining what's illegal are literally just "contract, ...trust..., or conspiracy, in restraint of trade or commerce" and "monopolize any part of the trade or commerce". Given that ambiguity, it's inevitable that courts will essentially have to write the law themselves.
  - mjan22640 3y ago
    The courts are bound by the law arent they. Ie what is stated in the law is illegal, and anything else is legal.
    - jessriedel 3y ago
      The law doesn't clearly state what's illegal. In this case, it barely mumbles and gestures at it. In applying the law, it is inevitable that it will have to be more precisely defined (or, worse, applied inconsistently).
      - CPLX 3y ago
        The law isn't particularly confusing. There's just been a multi-decade lobbying effort funded by the most powerful and moneyed interests in the country to muddy the waters about this.
        jessriedel 3y ago
        I didn't say "confusing". I said "unclear" and "underspecified". I'm looking I the words of the law myself and I have no idea what should and shouldn't be illegal.
- nielsbot 3y ago
  "The consumer welfare standard gradually replaced the rule of reason principle as the dominant legal theory behind antitrust enforcement by the 1980s." https://en.wikipedia.org/wiki/Consumer_welfare_standard https://en.wikipedia.org/wiki/Consumer_welfare_standard Maybe the judges are confused, but there was a shift in enforcement around the Reagan era. I also think "consumer welfare" in this context is taken to mainly maen low pricing. That is, if a monopoly causes higher prices, then we should go after them. The DOJ going after Google and Amazon is a bit of a return to the former standard. (Source: news programs I listen to such as The Majority Report.)
  - CPLX 3y ago
    What happened is monpolistic businesses bought off both parties and the elite law schools. They didn’t actually rewrite antitrust law though, so it’s still there.

CPLX 3y ago

No it doesn't. There's truth to your statement in the sense that there's now a generation of confused judges that think this is true. But the plain language of US antitrust statutes is pretty clear on this point, simply engaging in certain kinds of anti-competitive behavior is illegal, you definitely do not need to prove that the illegal behavior had specific effects.

whiddershins 3y ago
I think you are correct, the harm is assumed.
jessriedel 3y ago
The plain language of the statute doesn't matter much once legal precedent is entrenched. This is especially true when the plain language is incredibly underspecified. For those who don't know, the Sherman antitrust act has only two key paragraphs (and six procedural paragraphs). > Sec. 1. Every contract, combination in the form of trust or other- wise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, at the discretion of the court. > Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof; shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. https://www.archives.gov/milestone-documents/sherman-anti-trust-act https://www.archives.gov/milestone-documents/sherman-anti-tr... If we strip out the penalties, the words defining what's illegal are literally just "contract, ...trust..., or conspiracy, in restraint of trade or commerce" and "monopolize any part of the trade or commerce". Given that ambiguity, it's inevitable that courts will essentially have to write the law themselves.
- mjan22640 3y ago
  The courts are bound by the law arent they. Ie what is stated in the law is illegal, and anything else is legal.
  - jessriedel 3y ago
    The law doesn't clearly state what's illegal. In this case, it barely mumbles and gestures at it. In applying the law, it is inevitable that it will have to be more precisely defined (or, worse, applied inconsistently).
    - CPLX 3y ago
      The law isn't particularly confusing. There's just been a multi-decade lobbying effort funded by the most powerful and moneyed interests in the country to muddy the waters about this.
      - jessriedel 3y ago
        I didn't say "confusing". I said "unclear" and "underspecified". I'm looking I the words of the law myself and I have no idea what should and shouldn't be illegal.
nielsbot 3y ago
"The consumer welfare standard gradually replaced the rule of reason principle as the dominant legal theory behind antitrust enforcement by the 1980s." https://en.wikipedia.org/wiki/Consumer_welfare_standard https://en.wikipedia.org/wiki/Consumer_welfare_standard Maybe the judges are confused, but there was a shift in enforcement around the Reagan era. I also think "consumer welfare" in this context is taken to mainly maen low pricing. That is, if a monopoly causes higher prices, then we should go after them. The DOJ going after Google and Amazon is a bit of a return to the former standard. (Source: news programs I listen to such as The Majority Report.)
- CPLX 3y ago
  What happened is monpolistic businesses bought off both parties and the elite law schools. They didn’t actually rewrite antitrust law though, so it’s still there.