3 ms·

I can’t think of a single legitimate reason why Google should be allowed to pay Apple to use its search engine. Google is using the proceeds of its monopoly to

I can’t think of a single legitimate reason why Google should be allowed to pay Apple to use its search engine. Google is using the proceeds of its monopoly to exclude competition to maintain its monopoly. How is that norm per se antitrust violation? (That said, I’m not an antitrust lawyer and find it quite unintuitive, lol.)

xrd 1y ago
Your caveat rubs me the wrong way because this case proves the so-called experts don't have a clue either. Anti-trust lawyers means nothing in the current state of lawlessness.
ameister14 1y ago
Basically it should be illegal per se but since the 70's the Court has really limited how they apply that and so courts generally prefer to do a competitive analysis/quick look first. In this case, the argument might be that since the cost to consumer doesn't increase, it isn't a naked price fix so it's not per se illegal. As I learned it, since BMI & ASCAP v. CBS, in 1979, it's essentially been that the per se rule is applied when the courts have enough experience with an accused restraint to know that it is so plainly anticompetitive, and so often lacks any redeeming virtue, that further inquiry in any given case is almost certainly wasted effort Bork and his acolytes really screwed us, basically, turning a half-baked understanding of economics into a justification to ignore legislation and 60+ years of jurisprudence, and that's carried the day since.
- actionfromafar 1y ago
  Is that why call things getting "borked"?
  - mcherm 1y ago
    It is not. Judge Bork was proposed as a candidate for the US Supreme Court. While the Senate was reviewing his nomination they began discussing his actual views on various topics which were so abhorrent that the Senate voted not to confirm him. The conservative community complained he had been treated unfairly and coined the term.
    - rayiner 1y ago
      The Senate voted not to confirm Bork because Democrats controlled the Senate 55-45 and had the power to insist on a more ideologically liberal nominee. (Which I think is a fair use of the advice and consent power by the way. And a successful gambit, because they got Anthony Kennedy, who swung liberal on many key votes.) Bork was subject to attacks on his views of constitutional law. Many of the attacks were just not true. The Wikipedia write up on this is quite even-handed: https://en.wikipedia.org/wiki/Robert_Bork https://en.wikipedia.org/wiki/Robert_Bork. Apart from that, “abhorrent” is not a word that makes sense in discussing legal interpretation. It’s a category error. For example, Bork believed the Civil Rights Act of 1964 (which his party got through Congress) was unconstitutional. To this day, the law rests on shaky Commerce Clause footings with all sorts of exceptions and caveats to avoid conflict with the first amendment freedom of association and to overcome Congress’s lack of authority to regulate morality directly.[1] The attacks on him over it was midwits having an emotional reaction to a complex legal debate that was beyond their understanding. Bork’s antitrust theories, and its foundation in armchair economics analysis, is far better target for criticism. Ironically, that wasn’t the subject of Ted Kennedy’s speech against his candidacy. [1] You can see this tension in the laws themselves. Why doesn’t the Fair Housing Act apply to small, owner-occupied rental properties? Because Congress lacks the constitutional power to force people to not be racist in their choice of who they live with. In more than half a century, liberals haven’t even seriously attacked these carve outs even though they would seem like low hanging fruit.
      - dctoedt 1y ago
        > Bork believed the Civil Rights Act of 1964 (which his party got through Congress) was unconstitutional. Um: You're massively overstating the case for GOP involvement in the Civil Rights Act. The Act was muscled through by President Lyndon Johnson — a Democrat and protégé of LBJ; liberal congressional Democrats; and a few (and now-extinct) liberal Republicans. The racist, segregation-forever southern Democrats, who as powerful committee chairs had blocked civil-rights legislation for decades — mostly died off or became Republicans in the 1970s and 1980s thanks to the GOP's "Southern Strategy."
        1y ago
- rayiner 1y ago
  The current state of antitrust law expands far beyond Bork and conservatives. I’d be surprised if any of the top antitrust scholars are conservatives: https://leiterlawschool.typepad.com/leiter/2021/10/10-most-cited-antitrust-faculty-in-the-us-2016-2020.html https://leiterlawschool.typepad.com/leiter/2021/10/10-most-c...
  - ameister14 1y ago
    I'm not saying current political conservatives are the cause, Bork was hugely influential beyond traditional conservative circles, particularly in antitrust law. If you read Bork's work, especially The Antitrust Paradox, and if you study the caselaw prior to and post 1970's, you'll see a stark difference. It was really a conservative idea at that point but I'd say it's more neoliberal, which has a strong backing in the democratic party and has for decades, beginning with Carter. The per se analysis and application, particularly, is just massively different from the pre-Bork era. He's the single largest reason that the three main elements of cost, quality, and quantity as a standard for antitrust analysis has eventually boiled down almost entirely to cost, partially because it's so much easier to measure but also because he advocated for it as a mechanism to measure business efficiency. One of the big problems of this is the change in fundamentals since Bork was writing in the 70's, particularly with union membership declining so heavily. He was countering a very strong and powerful union system and factored that into his analysis, and we just don't have that in the private sector any longer. I've been working on a paper for a while about theoretically adding in wage and labor market analysis into the mix, particularly with monopoly and monopsony situations, but it's kinda stalled since I've been clerking. Honestly, read the guy's book and read some cases if you're interested. You'll see it fairly quickly.
    - rayiner 1y ago
      I think we basically agree. My point is that his ideas gained so much traction because neoliberalism was ascendant during this period. Law & economics started in the 1960s, and as you note, by Carter it had widely reshaped regulatory law in general.
xyzzyz 1y ago
All the while they keep blocking the most mundane acquisitions.
theshrike79 1y ago
This is like Ford making a deal with Goodyear to only ship their cars with Goodyear tires and Goodyear pays them for it. Anyone can swap the tires to anything they want, but the default is Goodyear.

xrd 1y ago

Your caveat rubs me the wrong way because this case proves the so-called experts don't have a clue either. Anti-trust lawyers means nothing in the current state of lawlessness.

ameister14 1y ago

Basically it should be illegal per se but since the 70's the Court has really limited how they apply that and so courts generally prefer to do a competitive analysis/quick look first. In this case, the argument might be that since the cost to consumer doesn't increase, it isn't a naked price fix so it's not per se illegal. As I learned it, since BMI & ASCAP v. CBS, in 1979, it's essentially been that the per se rule is applied when the courts have enough experience with an accused restraint to know that it is so plainly anticompetitive, and so often lacks any redeeming virtue, that further inquiry in any given case is almost certainly wasted effort Bork and his acolytes really screwed us, basically, turning a half-baked understanding of economics into a justification to ignore legislation and 60+ years of jurisprudence, and that's carried the day since.

actionfromafar 1y ago
Is that why call things getting "borked"?
- mcherm 1y ago
  It is not. Judge Bork was proposed as a candidate for the US Supreme Court. While the Senate was reviewing his nomination they began discussing his actual views on various topics which were so abhorrent that the Senate voted not to confirm him. The conservative community complained he had been treated unfairly and coined the term.
  - rayiner 1y ago
    The Senate voted not to confirm Bork because Democrats controlled the Senate 55-45 and had the power to insist on a more ideologically liberal nominee. (Which I think is a fair use of the advice and consent power by the way. And a successful gambit, because they got Anthony Kennedy, who swung liberal on many key votes.) Bork was subject to attacks on his views of constitutional law. Many of the attacks were just not true. The Wikipedia write up on this is quite even-handed: https://en.wikipedia.org/wiki/Robert_Bork https://en.wikipedia.org/wiki/Robert_Bork. Apart from that, “abhorrent” is not a word that makes sense in discussing legal interpretation. It’s a category error. For example, Bork believed the Civil Rights Act of 1964 (which his party got through Congress) was unconstitutional. To this day, the law rests on shaky Commerce Clause footings with all sorts of exceptions and caveats to avoid conflict with the first amendment freedom of association and to overcome Congress’s lack of authority to regulate morality directly.[1] The attacks on him over it was midwits having an emotional reaction to a complex legal debate that was beyond their understanding. Bork’s antitrust theories, and its foundation in armchair economics analysis, is far better target for criticism. Ironically, that wasn’t the subject of Ted Kennedy’s speech against his candidacy. [1] You can see this tension in the laws themselves. Why doesn’t the Fair Housing Act apply to small, owner-occupied rental properties? Because Congress lacks the constitutional power to force people to not be racist in their choice of who they live with. In more than half a century, liberals haven’t even seriously attacked these carve outs even though they would seem like low hanging fruit.
    - dctoedt 1y ago
      > Bork believed the Civil Rights Act of 1964 (which his party got through Congress) was unconstitutional. Um: You're massively overstating the case for GOP involvement in the Civil Rights Act. The Act was muscled through by President Lyndon Johnson — a Democrat and protégé of LBJ; liberal congressional Democrats; and a few (and now-extinct) liberal Republicans. The racist, segregation-forever southern Democrats, who as powerful committee chairs had blocked civil-rights legislation for decades — mostly died off or became Republicans in the 1970s and 1980s thanks to the GOP's "Southern Strategy."
      - 1y ago
rayiner 1y ago
The current state of antitrust law expands far beyond Bork and conservatives. I’d be surprised if any of the top antitrust scholars are conservatives: https://leiterlawschool.typepad.com/leiter/2021/10/10-most-cited-antitrust-faculty-in-the-us-2016-2020.html https://leiterlawschool.typepad.com/leiter/2021/10/10-most-c...
- ameister14 1y ago
  I'm not saying current political conservatives are the cause, Bork was hugely influential beyond traditional conservative circles, particularly in antitrust law. If you read Bork's work, especially The Antitrust Paradox, and if you study the caselaw prior to and post 1970's, you'll see a stark difference. It was really a conservative idea at that point but I'd say it's more neoliberal, which has a strong backing in the democratic party and has for decades, beginning with Carter. The per se analysis and application, particularly, is just massively different from the pre-Bork era. He's the single largest reason that the three main elements of cost, quality, and quantity as a standard for antitrust analysis has eventually boiled down almost entirely to cost, partially because it's so much easier to measure but also because he advocated for it as a mechanism to measure business efficiency. One of the big problems of this is the change in fundamentals since Bork was writing in the 70's, particularly with union membership declining so heavily. He was countering a very strong and powerful union system and factored that into his analysis, and we just don't have that in the private sector any longer. I've been working on a paper for a while about theoretically adding in wage and labor market analysis into the mix, particularly with monopoly and monopsony situations, but it's kinda stalled since I've been clerking. Honestly, read the guy's book and read some cases if you're interested. You'll see it fairly quickly.
  - rayiner 1y ago
    I think we basically agree. My point is that his ideas gained so much traction because neoliberalism was ascendant during this period. Law & economics started in the 1960s, and as you note, by Carter it had widely reshaped regulatory law in general.

xyzzyz 1y ago

All the while they keep blocking the most mundane acquisitions.

theshrike79 1y ago

This is like Ford making a deal with Goodyear to only ship their cars with Goodyear tires and Goodyear pays them for it. Anyone can swap the tires to anything they want, but the default is Goodyear.