I will talk about elections this weekend and start Monday on Wall Street financial policy and where that has taken America. What I want everyone to take away from my posts is that
WE THE PEOPLE CAN REVERSE THIS GLOBAL CORPORATE CAPTURE VERY EASILY. WE SIMPLY NEED PEOPLE TO ENGAGE.
Two things would downsize global corporations right away and both are simply reinstating Rule of Law. First, we recover the trillions of dollars in corporate fraud and that will downsize global corporations and next we enforce Sherman Anti-Trust Laws rather than having pols and appointments who write excuses for mergers that have no basis in truth. If your pols are not shouting that these anti-trust laws are not being enforced
THEY WORK FOR GLOBAL CORPORATIONS---GET RID OF THEM. ALL MARYLAND POLS ARE GLOBAL CORPORATE POLS.
'Monopolies
Section two of the Sherman Act prohibits monopolies, attempts to monopolize, or conspiracies to monopolize. A monopoly is a form of market structure where only one or very few companies dominate the total sales of a particular product or service. Economic theories show that monopolists will use their power to restrict production of goods and raise prices. The public suffers under a monopolistic market because it does not have the quantity of goods or the low prices that a competitive market could offer'.
In conclusion, I agree with Zepher Teachout:
'There are also reasons to think an antitrust policy focused on size and power makes good economic sense. Despite economic theorizing, bigger companies are not always more efficient companies. And even if they were, there are important societal efficiencies that go beyond whether individual companies operate cheaply or produce low-cost products. As Bert Foer of the American Antitrust Institute recently testified before Congress, we can choose to use competition policy to help prevent much of the systemic risk that has crippled our economy. By focusing more on size and concentration, we might be able to avoid collapse, unplanned nationalization, and bailouts'.
What are the Sherman Antitrust and Clayton Acts?
In the late 1800’s and early 1900’s, the U.S. government struggled with anti-competitive practices between businesses. Part of the concern was related to artificial pricing practices that harmed consumers. In response to these monopolies, cartels, and trusts, Congress passed two major pieces of legislation: The Sherman Antitrust Act and the Clayton Act.
The Sherman Antitrust Act
Passed in 1890, the Sherman Antitrust Act was the first major legislation passed to address oppressive business practices associated with cartels and oppressive monopolies. The Sherman Antitrust Act is a federal law prohibiting any contract, trust, or conspiracy in restraint of interstate or foreign trade.
Even though the title of the act refers to trusts, the Sherman Antitrust Act actually has a much broader scope. It provides that no person shall monopolize, attempt to monopolize or conspire with another to monopolize interstate or foreign trade or commerce, regardless of the type of business entity.
Penalties for violating the act can range from civil to criminal penalties; an individual violating these laws may be jailed for up to three years and fined up to $350,000 per violation. Corporations may be fined up to $10 million per violation. Like most laws, the Sherman Antitrust Act has been expanded by court rulings and other legislative amendments since its passage. One such amendment came in the form of the Clayton Act.
The Clayton Act
The purpose of the Clayton Act was to give more enforcement teeth to the Sherman Antitrust Act. Passed in 1914, the Clayton Act regulates general practices that may be detrimental to fair competition. Some of these general practices regulated by the Clayton Act are: price discrimination, exclusive dealing contracts, tying agreements, or requirement contracts; mergers and acquisitions; and interlocking directorates.
The Clayton Act is enforced by the Federal Trade Commission (FTC) and the Department of Justice (DOJ). Many of the provisions of the Clayton Act set out how the FTC or DOJ can respond to violations. Other parts of the Clayton Act are designed to proactively prevent anti-trust issues. For example, before two companies can merge, they must notify the FTC and obtain approval prior to the merger. The Clayton Act also created exemptions from enforcement for certain organizations, the most significant being labor unions.
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Notice this article was written in the Reagan Administration as neo-liberalism was pushed mainstream. 'Trustbusting was a law created by farmers and small businesses inept and afraid of REAL BUSINESS MINDS say neo-liberals'. Indeed, at the time this article was written small farmers were being wiped out by BIG AG which became GLOBAL AG. Small businesses have been wiped out by BIG BOX and GLOBAL BIG BOX. We now have a captured, crony, criminal, unaccountable globally controlled economy with huge unemployment. So, ignoring Anti-Trust killed the US economy and US consumers....the very reason these laws were written. The idea that whoever is in power can pick and choose which Constitutional laws to enforce does not work IN A RULE OF LAW EQUAL PROTECTION NATION. They cannot simply decide to ignore anti-trust laws.
They know that and when the FTC and US Justice Department approves these mergers----they allow excuses for how the merger will be good for competition and the consumer THAT NO ONE BELIEVES. IT IS PROPAGANDA.
We can reverse all of these deals by simply reinstating Rule of Law. Public malfeasance and duplicity in wrongful contract does not hold up. Citizens should be outside every courtroom that might decide to rule against the American people on these issues. Global corporate pols have passed laws that send these cases to particular courts that then are staffed with judges that rule for corporations----
STOP ALLOWING THEM TO FIX OUR COURT SYSTEM AND DEMAND EQUAL PROTECTION AND RULE OF LAW!
This was written by an historian that also wrote a book on MADE IN THE USA. The failure to enforce Anti-Trust laws is the very reason we lost all of our industries.
Trustbusting And The Images Of An Earlier Time
October 30, 1986|By Thomas V. DiBacco.
One of the most salutary, unheralded developments in recent years is that trustbusting has gone the way of the wind. To be sure, the Justice Department and the Federal Trade Commission sometimes put their feet in the way of proposed mergers, but the breaking up of large corporations is dead--except, of course, in those rare situations like the telephone industry where one company controls virtually everything.
The Sherman Antitrust Act of 1890 was a bad law, conceived by farmers and uncompetitive small businesses who wanted to keep their world unchanged. They defied obvious realities, such as that the large corporation could effect economies of scale; small retailers even campaigned against extending the nation`s mail system in the early 20th Century because it would benefit Sears, Roebuck & Co. and its catalogue business.
Even worse, the notions of the farmer and small retailer toward what was monopolistic drew upon emotion rather than sensible criteria. Take one example: The first multi-unit big business in the United States was Western Union, which grew in the wake of Samuel F.B. Morse`s pioneering work with the telegraph in 1844. By 1857 there were six telegraph companies controlling the industry, a few years later there were three and by 1866 there was only Western Union. To be sure, there were subsequent attempts to cut into Western Union`s monopolistic position, but all failed and no major antitrust movement arose.
At the same time, the nation`s numerous railroads would come under rigorous legislative scrutiny. The first federal regulatory measure, the Interstate Commerce Act, came in 1887, three years before the Sherman Antitrust Act. And no industry was more the object of antitrust action in subsequent years than the railroads.
Some analysts might suggest that the telegraph industry would raise little antitrust fervor because it created a vast communications system that made economic sense. The rails, on the other hand, were spread without much rhyme or reason throughout the land, creating enormous frustrations for users, such as farmers, who claimed their lines were too few and expensive.
Maybe so, but one cannot disregard the emotional aspects of popular democracy in the late 19th Century. Just as today, Americans lived to some degree by images as well as reality.
The image of the railroad--belching black smoke, deafening all other sounds, killing livestock and people before technology came to its rescue--was not likely to leave Americans emotionally neutral. In addition, the railroads looked massive, and so were readily associated with wealth.
The vision of the telegraph industry, on the other hand, was that of a small, green-visored telegrapher tapping away in a small office. Unlike the railroad`s steel rails, a thin telegraph line could not conjure up much emotion. Even the recent break-up of AT&T was led by competitors rather than consumers.
So let`s not mourn the end of trustbusting, a democratic notion whose history merits rich obscurity.
Thomas V. DiBacco is a historian at the American University, Washington, D.C. His book, ``Made in the U.S.A.: The History of American Business,`` will be published by Harper & Row in March.
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'The judge who wrote this opinion? Clarence Thomas, who took Judge Bork's place on the D.C. Circuit after Bork resigned. Thomas was joined in the opinion by Ruth Bader Ginsburg. Justice Sotomayor has used applied Bork reasoning in antitrust cases when she sat on the 2nd Circuit Court of Appeals. Elena Kagan has agreed that the Bork/Posner drive to incorporate neoliberal economics into antitrust law is necessary. During her confirmation hearings she said "it’s clear that antitrust law needs to take account of economic theory and economic understandings."
If the American media educated as to the issues that really matter------not whether a pol supports a higher minimum wage but are they neo-liberals who do not value anti-trust laws and thus embrace global corporations that break these anti-trust laws. That is what we would have known about Obama had any media outlet educated voters during the election. Obama is from The Chicago School of Law that is ground zero for neo-liberal economic policy and law. Take a look at the names in the article on anti-trust policy over the decades to see why people are nominated for court ====especially the Supreme Court====and you see how neo-liberalism and the dismantlement of anti-trust has been the goal of court appointments especially for Obama. Everyone says----even Republicans -----that we do not have free market economics----we have a crony economics and that happened when Sherman Anti-Trust laws were ignored.
Sun Jan 09, 2011 at 06:58 PM PST
Robert Bork's influence over antitrust law
by brooklynbadboy for Daily Kos
When President Reagan nominated Judge Robert Bork to the Supreme Court in 1987, a political war began. Judge Bork had been a circuit judge on the District of Columbia Court of Appeals, which could be considered the second most powerful court in the nation. Although he was 60 years
old, his influence over ultra-conservative jurisprudence became well known at the time of his nomination. He is one of the founding fathers, so to speak, of originalism. Democrats feared that his confirmation would shift the court so far to the right that it would be decades before balance could be restored. That political war was fought mainly over Judge Bork's stance on Roe vs. Wade, a war which President Reagan lost. Fierce opposition from Democrats like Ted Kennedy and some Republicans like Arlen Specter, led to Bork being rejected by the Senate 58 to 42. Anthony Kennedy was confirmed unanimously in his wake. Judge Bork resigned his seat on the DC Circuit the following year, leaving his colleague on the court Antonin Scalia to carry the battle flag for another time. But Judge Bork's influence didn't fade. He is still held in high esteem by conservative legal scholars over such matters as federalism, original intent, and other matters. But his influence over another body of law is deep, pervasive and is playing out across the nation in ways that will probably be felt for generations.
After serving as Solicitor-General for Presidents Nixon and Ford from 1973 to 1977, Bork wrote a book that has had a lasting influence on the American economy. The Antitrust Paradox is Robert Bork's magnum opus. Along with Judge Robert Posner's seminal book Antitrust Law(1976), the influence that Bork's book has had on modern competition law in the conservative era is difficult to overstate. Both men are associated with the so-called Chicago School of neoliberal economics with its heavy emphasis on deregulated markets and the rational choice theory. Conservative legal minds like George Priest at Yale have praised his influence:
Virtually all would agree that the Supreme Court, in its change of direction of antitrust law beginning in the late 1970s, drew principally from Judge Bork's book both for guidance and support of its new consumer welfare basis for antitrust doctrine.
Liberal legal minds like Zephyr Teachout have written about Bork's influence as well:
The spirit of antitrust has been eviscerated over decades by people like Robert Bork, who argued that antitrust had to be about "efficiency," as if efficiency was a nonpolitical, objective idea we all might measure.
The D.C. Circuit Court of Appeals made Bork's doctrine official in a 1990 ruling in United States vs. Baker Hugues, which was a Clayton Antitrust Act enforcement action brought against Texas oil services company Baker Hughes. That influential ruling solidified the Chicago School's influence over antitrust enforcement by holding:
The Supreme Court has adopted a totality-of-the-circumstances approach to the statute, weighing a variety of factors to determine the effects of particular transactions on competition. That the government can establish a prima facie case through evidence on only one factor, market concentration, does not negate the breadth of this analysis. Evidence of market concentration simply provides a convenient starting point for a broader inquiry into future competitiveness...
The judge who wrote this opinion? Clarence Thomas, who took Judge Bork's place on the D.C. Circuit after Bork resigned. Thomas was joined in the opinion by Ruth Bader Ginsburg. Justice Sotomayor has used applied Bork reasoning in antitrust cases when she sat on the 2nd Circuit Court of Appeals. Elena Kagan has agreed that the Bork/Posner drive to incorporate neoliberal economics into antitrust law is necessary. During her confirmation hearings she said "it’s clear that antitrust law needs to take account of economic theory and economic understandings."
While Justice John Paul Stevens is now considered a liberal champion, his primary, if lesser known, achievement on the court was initiating the embrace of Robert Bork's antitrust reasoning. When President Ford appointed Stevens to the Supreme Court in 1976, replacing traditional antitrust crusader William O. Douglas, he had already spent 20 years as an antitrust lawyer in Chicago. He taught antitrust law at the University of Chicago, where many other Chicago School neoliberals had ensconced themselves. He had been recruited there by the dean of the University of Chicago Law School, Ed Levi. After serving as a Nixon appointment to the 7th Circuit Appellate Court, he came highly recommended to President Ford by now Attorney-General Ed Levi and one other: Ford's Solicitor-General, Robert Bork.
Ford appointed Stevens to the Court in 1976. Shortly thereafter, the Court began to take Chicago School ideas seriously, ultimately completely overturning antitrust doctrine in a movement that continues today.
It is difficult to overstate Stevens' contribution. At the time of his appointment, the development of antitrust doctrine for four decades had consisted of the continuous expansion of per se rules prohibiting a wide range of practices: price-fixing and territorial restrictions; group boycotts; tying arrangements; predatory pricing; and resale price maintenance, among others.
When John Paul Stevens' position on antitrust law is the left-most position, that is clearly indicative of a fundamental transformation of applied law. It happened quickly and the scope and effect of it has been breathtaking. And Robert Bork was right at the center of making it happen.
While I don't want to get into heavy legal theory in this piece, I'll try to summarize quickly how Judge Bork's views changed the nature of enforcement of antitrust law and then move to the effects these changes are having on our economy. This is not a scholarly essay, but rather a polemic. My goal in describing how Judge Bork's views affect America is political, not exclusively legal in nature.
In a 2007 paper published at Berkeley, antitrust scholars Johnathan Baker and Carl Shapiro get to the heart of the matter:
The past forty years have witnessed a remarkable transformation in horizontal merger enforcement in the United States. With no change in the underlying statute, the Clayton Act, the weight given to market concentration by the federal courts and by the federal antitrust agencies has declined dramatically. Instead, increasing weight has been given to three arguments often made by merging firms in their defense: entry, expansion and efficiencies.
The primary effect that Judge Bork had on antitrust enforcement is changing the standards by which antitrust actions are brought and decided. The basic point of Judge Bork's book is that the determinative factor of when and how an antitrust action should be decided should be economic rather than political. This is why the factors determining the use antitrust powers are decidedly financial in nature: Are there any barriers to entry? Is the consumer paying higher prices than usual? The fixation on consumer choices and prices, rather than market concentration and number of actors is the basic fundamental difference between modern and classical antitrust enforcement. This is why you have not and will not see a breakup of a major corporation in America today no matter how large or how concentrated its market share. In simpler terms, it does not matter if Wal-Mart is the sole source of food in your county as long there are a wide variety of products, the prices are low and in theory someone else could open up a store. No barrier to entry? Wide variety? Low prices? Monopoly approved.
The original spirit of competition law in America, however, was decidedly political. Senator John Sherman of Sherman Antitrust Act fame, put it this way:
If we will not endure a king as a political power we should not endure a king over the production, transportation, and sale of any of the necessaries of life.
Justice William O. Douglas, writing in a 5-4 dissent in United States vs. Columbia Steel, however, may have put the purpose of antitrust law better than anyone else:
"We have here the problem of bigness. Its lesson should by now have been burned into our memory by Brandeis. The Curse of Bigness shows how size can become a menace--both industrial and social. It can be an industrial menace because it creates gross inequalities against existing or putative competitors. It can be a social menace...In final analysis, size in steel is the measure of the power of a handful of men over our economy...The philosophy of the Sherman Act is that it should not exist...Industrial power should be decentralized. It should be scattered into many hands so that the fortunes of the people will not be dependent on the whim or caprice, the political prejudices, the emotional stability of a few self-appointed men...That is the philosophy and the command of the Sherman Act. It is founded on a theory of hostility to the concentration in private hands of power so great that only a government of the people should have it."
That isn't an economic argument about consumer prices or market efficiency. Justice Douglas' argument for antitrust law was moral/political and it was not uncommon in his time.
The 1950's and 1960's were what might be considered the "golden age" in classical antitrust enforcement. During that era, the use of the Sherman, Clayton, and Robinson-Patman Acts inter alia, were buttressed by the Celler-Kefauver Act. Those bills allowed the Federal Government to aggressively limit mergers, intervene in concentrated markets and combat anti-competitive behavior with the heavy hand of consent decree regulation. While the era did not bring about a great deal of break-ups, the corporations knew there was a tough cop on the beat. The problem with these laws, however, was that they were so broad that they left a great deal of discretion over enforcement to the executive branch and the courts. What would happen if both institutions developed a very different view of "bigness" than John Sherman or Justice Douglas?
The "golden age" ended partly because of the tremendous legal influence of Robert Bork. His view of competition law fit neatly with the ascendancy of neoliberal economic thought. New antitrust enforcement guidelines were written by successive conservative administrations, whose members accepted Bork & Posner's thinking on the subject. Antitrust actions declined on both number and scope. The few actions that were brought were on the most obvious price-fixing and the like. Next, lawyers who accepted or in some cases enforced Bork's views were appointed to the district and appellate bench. Even nominally liberal judges appointed by Bill Clinton accepted the economic view of antitrust law and focused their concerns solely on consumer prices, product choice, etc. Mergers that in the 1950's would have completely rejected were approved.
You need only look at the recent history of Bank of America since 1980 to see the effects of the lack of meaningful antitrust enforcement. In the first thirty years of the conservative era, Bank of America was allowed by antitrust enforcers to become so gargantuan, that it's failure posed a direct threat to the entire national economy. So huge in fact, that only the government could bail it out as it approached failure in 2008. While Judge Bork and his ilk would likely point to the benefits of "free checking" and "national ATM coverage" to the consumer, classical antitrust enforcers would look at the size and concentration of an entity that large and conclude it's massive size poses an excessive risk to society as a whole. Taxpayers now know costly "the problem of bigness" can be.
When one considers the Citizens United ruling within the context of the dominant laissez-faire thinking among antitrust lawyers, it is easy to understand why large corporations have become the dominant institutions in American life. While there was a strong progressive and labor movement in the early part of the 20th Century to act as a counterweight to to the "robber barons" and "trusts," today no such movements exist. Perhaps progressives had thought the laws they worked so hard for, laws expressly designed to curb the size and concentration of corporate power, had largely made monitoring such things no longer imperative. But antitrust law was just a much a fundamental element of economic justice for the middle class as the labor movement. Even in cases where the trust busters failed, the people could see that there were people in government who were on their side, protecting the weak from the strong. But the conservatives planned ahead and planned well. Their victory was so complete, the Bush Administration didn't bother trying to enforce even the relatively lax Bork antitrust rules. And now, things are so far diverted from their original purpose, that Obama Administration's more robust antitrust action is firmly ensconced in Chicago School-style enforcement. Without traditional antitrust laws, or a labor movement, and unlimited corporate spending on elections, who or what will bring balance to the forces corporate power have over the people and their government?
In conclusion, I agree with Zepher Teachout:
There are also reasons to think an antitrust policy focused on size and power makes good economic sense. Despite economic theorizing, bigger companies are not always more efficient companies. And even if they were, there are important societal efficiencies that go beyond whether individual companies operate cheaply or produce low-cost products. As Bert Foer of the American Antitrust Institute recently testified before Congress, we can choose to use competition policy to help prevent much of the systemic risk that has crippled our economy. By focusing more on size and concentration, we might be able to avoid collapse, unplanned nationalization, and bailouts.
To get there, we will either need a new body of competition law, or new teaching to undo the effects of the influential Robert Bork.
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'This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” As this article has shown, however, “the constitutional guarantee of liberty deserves more respect—a lot more.”
The research paper below has a great overview of the history of corporate monopoly in American history. Take a look---it is too long to post in entirety. What we know is that the US Constitution does not allow for the merging of US corporations to the extent that has happened and it occurs because we elect pols that ignore the Constitution. We are now watching as these global corporate pols manufacture reasons why global corporations are good for the public and economy -----
Northwestern University School of LawNorthwestern University School of Law Scholarly CommonsFaculty Working Papers2012
Monopolies and the Constitution: A History of Crony Capitalism
Steven G. CalabresiNorthwestern University School of Law, s-calabresi@law.northwestern.eduLarissa Price
CONCLUSION
While the evils of state granted monopolies in England did not lead to an antimonopoly provision in the federal constitution, there is ample evidence that the right to be free from government monopolies is deeply rooted in this country’s history and tradition. The English fear of monopolies was a fear that Americans experienced under colonial rule, and it provided one of many justifications put forward for American independence. The Antifederalists spoke out against monopolies, and Federalists such as James Madison discussed the issue with Thomas Jefferson and George Mason during the debates on the Constitution. During the ratification of the federal Constitution, six states even requested the inclusion of an antimonopoly clause as an amendment to the Constitution. In addition, Congress is only given enumerated power to create monopolies in the Patent and copyright context, which implies that Congress lacks such power in other contexts. Moreover, the Privileges and Immunities Clause of Article IV may very well have recognized a constitutional right to be free from partial or discriminatory laws. Two states had antimonopoly provisions in their constitutions at the time of the founding, and many more states added antimonopoly provisions to their constitutions during the nineteenth century due to the Jacksonian concern about monopolies. This thread of Jacksonian thought was adopted by the Abolitionists and then by Reconstruction era Republicans who argued that the institution of slavery was itself a particularly perverse monopoly. The antimonopoly argument thus played an important role in the writing of the Fourteenth Amendment, which for the Radical Republicans was a ban on all systems of class-based legislation, of exclusive privileges, and of monopolies
All of this evidence—from Seventeenth Century England, from the colonial period, from the experience in the states, and from the framing of the Fourteenth Amendment--makes it clear that there is a strong antimonopoly tradition in U.S. constitutional law.The fact that inrecent times the federal courts have, for the most part, relegated cases involving economic regulations to limited “rational basis” review, however, has meant that until recently challenges to laws on antimonopoly grounds were unlikely to be successful. This may change now that the rational basis test has been employed to strike down classifications on the basis of sex, sexual orientation, and mental retardation, and now that the Takings Clause is experiencing a revival at the level of the U.S. Supreme Court. Despite the post New Deal rational basis mindset, this article has shown that state antimonopoly clauses in particular have proven to be important for striking down a number of economic regulations that grant special privileges to some at the expenseof others—licensing requirements, taxes designed to benefit preferred industries, monopolies to do business with the government, and price controls designed to benefit insiders. Antimonopoly clauses can also be used to strike down laws such as licensing requirements where the court finds that the laws grant special privilege absent any health and safety concerns. Challenges to state laws on antimonopoly grounds have been made recently, such as with a law governing Maryland horse massages and with the Texas horse floating cases discussed in Section III. The right to compete, and more fundamentally, the right to earn an honest living, is a basic right embodied in U.S. constitutional law. There is substantial evidence, from the English and colonial history, from debates on the federal constitution and its ratification, from the history of the Fourteenth Amendment, and from state constitutional law, to show that this is the case. However, the longstanding use of rational basis review has meant that the courts have too often surrendered to a legislative process that is dominated by well-entrenched interest groups seeking monopoly rents from the state. It means that fundamental economic liberties too often go unprotected by the courts. In short, the use of rational basis review has meant that “property is at the mercy of the pillagers.” As this article has shown, however, “the constitutional guarantee of liberty deserves more respect—a lot more.”
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Please take time to understand the intended effects of the Affordable Care Act. It seeks to consolidate and deregulate the health industry just as Clinton's policies to consolidate and deregulate the financial industry. What will become global health systems will control every aspect of health care. IT WILL BECOME A MONOPOLY.
The discussion below is a good start----it takes a business viewpoint but the arguments are laid out. The fact is that ACA sets the stage for violations of anti-trust and with global corporate pols in office all of this will be ignored.
IT MATTERS HAVING CLINTON GLOBAL CORPORATE POLS CONTROLLING THE PEOPLE'S DEMOCRATIC PARTY. NATIONAL LABOR AND JUSTICE LEADERS BACKING THESE NEO-LIBERALS ARE NOT WORKING FOR AMERICAN FAMILIES.
Sherman Antitrust Act versus Affordable Care Act: FTC's successful merger challenge in the matter of St. Luke’s Hospital of Idaho
29 APR 20142:00 PM - 3:15 PM (UTC-05:00) Webinar
In a widely reported decision, the FTC has successfully challenged the merger between St. Luke’s Hospital of Idaho and Salzer Medical Group, resulting in a federal court ruling that the merger would violate US antitrust law. DLA Piper is pleased to present a webinar discussing the ramifications of this significant case.
Webinar Playback
Presentation Slides AMONG THE TOPICS:
Carl Hittinger, Co-Chair, US Antitrust and Trade Regulation Group
Steve Goff, Co-Chair, Health Care Sector
Downloads
Presentation Slides
Webinar Playback
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WE THE PEOPLE can reverse this global corporate takeover very easily. Simply running and voting against Clinton neo-liberals will send them packing. Then we will have pols shouting for Rule of Law. Rule of Law itself will downsize US global corporations. First, there is the recovery of trillions in corporate fraud that will downsize these fraud- bloated corporations. Then there is the Anti-Trust laws in the Constitution that will break apart these unlawful mergers and acquisitions. Remember, it is the FED and Treasury that regulates banks and is allowing all the financial frauds and the President and a Clinton neo-liberal Senate appointed these agency heads. It is the FTC---Federal Trade Commission and the US Justice Department----Eric Holder ----that stops mergers that violate anti-trust. Again, these are Clinton neo-liberal appointments approved by a neo-liberal Senate who are ignoring anti-trust laws. WE ALL KNOW THESE MERGERS ARE CREATING MONOPOLIES.
'Still, the act was a far-reaching legislative departure from the predominant laissez-faire philosophy of the era'.
If courts are stacked with Bork neo-liberal judges then a politician and citizens stand outside and shout that such rulings are not to be interpreted from the intent of this law. This is very boring but it gives the law as it is written. Think about Clinton allowing the telecommunications industry to merge after the ATT breakup. Flash forward to today and we have Verizon and Comcast each flooding advertising offering the same things for the same price. The cable competition is now disappearing with the last approved merger of Comcast.
HOW IS THIS COMPETITION AND HOW IS PAYING $200 A MONTH PRICE AFFORDABILITY. WALL STREET ANNOUNCED THAT WHEN CABLE GOES THOSE PRICES WILL GO TO $400 A MONTH.
Sherman Anti-Trust Act
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Sherman Anti-Trust Act The Sherman Anti-Trust Act of 1890 (15 U.S.C.A. §§ 1 et seq.), the first and most significant of the U.S. antitrust laws, was signed into law by President Benjamin Harrison and is named after its primary supporter, Ohio Senator John Sherman.
The prevailing economic theory supporting antitrust laws in the United States is that the public is best served by free competition in trade and industry. When businesses fairly compete for the consumer's dollar, the quality of products and services increases while the prices decrease. However, many businesses would rather dictate the price, quantity, and quality of the goods that they produce, without having to compete for consumers. Some businesses have tried to eliminate competition through illegal means, such as fixing prices and assigning exclusive territories to different competitors within an industry. Antitrust laws seek to eliminate such illegal behavior and promote free and fair marketplace competition.
Until the late 1800s the federal government encouraged the growth of big business. By the end of the century, however, the emergence of powerful trusts began to threaten the U.S. business climate. Trusts were corporate holding companies that, by 1888, had consolidated a very large share of U.S. manufacturing and mining industries into nationwide monopolies. The trusts found that through consolidation they could charge Monopoly prices and thus make excessive profits and large financial gains. Access to greater political power at state and national levels led to further economic benefits for the trusts, such as tariffs or discriminatory railroad rates or rebates. The most notorious of the trusts were the Sugar Trust, the Whisky Trust, the Cordage Trust, the Beef Trust, the Tobacco Trust, John D. Rockefeller's Oil Trust (Standard Oil of New Jersey), and J. P. Morgan's Steel Trust (U.S. Steel Corporation).
Consumers, workers, farmers, and other suppliers were directly hurt monetarily as a result of the monopolizations. Even more important, perhaps, was that the trusts fanned into renewed flame a traditional U.S. fear and hatred of unchecked power, whether political or economic, and particularly of monopolies that ended or threatened equal opportunity for all businesses. The public demanded legislative action, which prompted Congress, in 1890, to pass the Sherman Act. The act was followed by several other antitrust acts, including the Clayton Act of 1914 (15 U.S.C.A. §§ 12 et seq.), the Federal Trade Commission Act of 1914 (15 U.S.C.A. §§ 41 et seq.), and the Robinson-Patman Act of 1936 (15 U.S.C.A. §§ 13a, 13b, 21a). All of these acts attempt to prohibit anticompetitive practices and prevent unreasonable concentrations of economic power that stifle or weaken competition.
The Sherman Act made agreements "in restraint of trade" illegal. It also made it a crime to "monopolize, or attempt to monopolize … any part of the trade or commerce." The purpose of the act was to maintain competition in business. However, enforcement of the act proved to be difficult. Congress had enacted the Sherman Act pursuant to its constitutional power to regulate interstate commerce, but this was only the second time that Congress relied on that power. Because Congress was somewhat uncertain of the reach of its legislative power, it framed the law in broad common-law concepts that lacked detail. For example, such key terms as monopoly and trust were not defined. In effect, Congress passed the problem of enforcing the law to the Executive Branch, and to the judicial branch, it gave the responsibility of interpreting the law. Still, the act was a far-reaching legislative departure from the predominant laissez-faire philosophy of the era.
Initial enforcement of the Sherman Act was halting, set back in part by the decision of the Supreme Court in United States v. E. C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 325 (1895), that manufacturing was not interstate commerce. This problem was soon circumvented, and President Theodore Roosevelt promoted the antitrust cause, calling himself a "trustbuster." In 1914, Congress established the Federal Trade Commission (FTC) to formalize rules for fair trade and to investigate and curtail unfair trade practices. As a result, a number of major cases were successfully brought in the first decade of the century, largely terminating trusts and basically transforming the face of U.S. industrial organization.
During the 1920s, enforcement efforts were more modest, and during much of the 1930s, the national recovery program of the New Deal encouraged industrial collaboration rather than competition. During the late 1930s, an intensive enforcement of antitrust laws was undertaken. Since World War II, antitrust enforcement has become increasingly institutionalized in the Antitrust Division of the Justice Department and in the Federal Trade Commission, which over time, was granted greater authority by Congress. Justice Department enforcement activities against cartels are particularly vigorous, and criminal sanctions are increasingly sought. In 1992, the Justice Department expanded its enforcement policy to cover foreign company conduct that harms U.S. exports.
Restraint of Trade
Section one of the Sherman Act provides that "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations is hereby declared to be illegal." The broad language of this section has been slowly defined and narrowed through judicial decisions.
The courts have interpreted the act to forbid only unreasonable restraints of trade. The Supreme Court promulgated this flexible rule, called the Rule of Reason, in Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911). Under the Rule of Reason, the courts will look to a number of factors in deciding whether the particular restraint of trade unreasonably restricts competition. Specifically, the court considers the makeup of the relevant industry, the defendants' positions within that industry, the ability of the defendants' competitors to respond to the challenged practice, and the defendants' purpose in adopting the restraint. This analysis forces courts to consider the pro-competitive effects of the restraint as well as its anticompetitive effects.
The Supreme Court has also declared certain categories of restraints to be illegal per se: that is, they are conclusively presumed to be unreasonable and therefore illegal. For those types of restraints, the court does not have to go any further in its analysis than to recognize the type of restraint, and the plaintiff does not have to show anything other than that the restraint occurred.
Restraints of trade can be classified as horizontal or vertical. A horizontal agreement is one involving direct competitors at the same level in a particular industry, and a vertical agreement involves participants who are not direct competitors because they are at different levels. Thus, a horizontal agreement can be among manufacturers or retailers or wholesalers, but it does not involve participants from across the different groups. A vertical agreement involves participants from one or more of the groups—for example, a manufacturer, a wholesaler, and a retailer. These distinctions become difficult to make in certain fact situations, but they can be significant in determining whether to apply a per se rule of illegality or the Rule of Reason. For example, horizontal market allocations are per se illegal, but vertical market allocations are subject to the rule-of-reason test.
Concerted Action
Section one of the Sherman Act prohibits concerted action, which requires more than a unilateral act by a person or business alone. The Supreme Court has stated that an organization may deal or refuse to deal with whomever it wants, as long as that organization is acting independently. But if a manufacturer and certain retailers agree that a manufacturer will only provide products to those retailers and not to others, then that is a concerted action that may violate the Sherman Act. A company and its employees are considered an individual entity for the purposes of this act. Likewise, a parent company and its wholly owned subsidiaries are considered an individual entity.
Evidence of a concerted action may be shown by an express or written agreement, or it may be inferred from Circumstantial Evidence. Conscious parallelism (similar patterns of conduct among competitors) is not sufficient in and of itself to imply a conspiracy. The courts have held that conspiracy requires an additional element such as complex actions that would benefit each competitor only if all of them acted in the same way.
Joint ventures, which are a form of business association among competitors designed to further a business purpose, such as sharing cost or reducing redundancy, are generally scrutinized under the Rule of Reason. But courts first look at the reason that the Joint Venture was established to determine whether its purpose was to fix prices or engage in some other unlawful activity. Congress passed the National Cooperative Research Act of 1984 (15 U.S.C.A. §§ 4301-06) to permit and encourage competitors to engage in joint ventures that promote research and development of new technologies. The Rule of Reason will apply to those types of joint ventures.
Price Fixing
The agreement to inhibit price competition by raising, depressing, fixing, or stabilizing prices is the most serious example of a per se violation under the Sherman Act. Under the act, it is immaterial whether the fixed prices are set at a maximum price, a minimum price, the actual cost, or the fair market price. It is also immaterial under the law whether the fixed price is reasonable.
All horizontal and vertical price-fixing agreements are illegal per se. Horizontal price-fixing agreements include agreements among sellers to establish maximum or minimum prices on certain goods or services. This can also include competitors' changing their prices simultaneously in some circumstances. Also significant is the fact that horizontal price-fixing agreements may be direct or indirect and still be illegal. Thus, a promotion or discount that is tied closely to price cannot be raised, depressed, fixed, or stabilized, without a Sherman Act violation. Vertical price-fixing agreements include situations where a wholesaler mandates the minimum or maximum price at which retailers may sell certain products.
Market Allocations
Market allocations are situations where competitors agree to not compete with each other in specific markets, by dividing up geographic areas, types of products, or types of customers. Market allocations are another form of price fixing. All horizontal market allocations are illegal per se. If there are only two computer manufacturers in the country and they enter into a market allocation agreement whereby manufacturer A will only sell to retailers east of the Mississippi and manufacturer B will only sell to retailers west of the Mississippi, they have created monopolies for themselves, a violation of the Sherman Act. Likewise, it is an illegal agreement that manufacturer A will only sell to retailers C and D and manufacturer B will only sell to retailers E and F.
Territorial and customer vertical market allocations are not per se illegal but are judged by the Rule of Reason. In 1985, the Justice Department announced that it would not challenge any restraints by a company that has less than 10 percent of the relevant market or whose vertical price index, a measure of the relevant market share, indicates that collusion and exclusion are not possible for that company in that market.
Boycotts
A boycott, or a concerted refusal to deal, occurs when two or more companies agree not to deal with a third party. These agreements may be clearly anticompetitive and may violate the Sherman Act because they can result in the elimination of competition or the reduction in the number of participants entering the market to compete with existing participants. Boycotts that are created by groups with market power and that are designed to eliminate a competitor or to force that competitor to agree to a group standard are per se illegal. Boycotts that are more cooperative in nature, designed to increase economic efficiency or make markets more competitive, are subject to the Rule of Reason. Generally, most courts have found that horizontal boycotts, but not vertical boycotts, are per se illegal.
Tying Arrangements
When a seller conditions the sale of one product on the purchase of another product, the seller has set up a Tying Arrangement, which calls for close legal scrutiny. This situation generally occurs with related products, such as a printer and paper. In that example, the seller only sells a certain printer (the tying product) to consumers if they agree to buy all their printer paper (the tied product) from that seller.
Tying arrangements are closely scrutinized because they exploit market power in one product to expand market power in another product. The result of tying arrangements is to reduce the choices for the buyer and exclude competitors. Such arrangements are per se illegal if the seller has considerable economic power in the tying product and affects a substantial amount of interstate commerce in the tied product. If the seller does not have economic power in the tying product market, the tying arrangement is judged by the Rule of Reason. A seller is considered to have economic power if it occupies a dominant position in the market, its product is advantaged over other competing products as a result of the tying, or a substantial number of consumers has accepted the tying arrangement (evidencing the seller's economic power in the market).
Monopolies
Section two of the Sherman Act prohibits monopolies, attempts to monopolize, or conspiracies to monopolize. A monopoly is a form of market structure where only one or very few companies dominate the total sales of a particular product or service. Economic theories show that monopolists will use their power to restrict production of goods and raise prices. The public suffers under a monopolistic market because it does not have the quantity of goods or the low prices that a competitive market could offer.
Although the language of the Sherman Act forbids all monopolies, the courts have held that the act only applies to those monopolies attained through abused or unfair power. Monopolies that have been created through efficient, competitive behavior are not illegal under the Sherman Act, as long as honest methods have been employed. In determining whether a particular situation that involves more than one company is a monopoly, the courts must determine whether the presence of monopoly power exists in the market. Monopoly power is defined as the ability to control price or to exclude competitors from the marketplace. The courts look to several criteria in determining market power but primarily focus on market share (the company's fractional share of the total relevant product and geographic market). A market share greater than 75 percent indicates monopoly power, a share less than 50 percent does not, and shares between 50 and 75 percent are inconclusive in and of themselves.
In focusing on market shares, courts will include not only products that are exactly the same but also those that may be substituted for the company's product based on price, quality, and adaptability for other purposes. For example, an oat-based, round-shaped breakfast cereal may be considered a substitutable product for a rice-based, square-shaped breakfast cereal, or possibly even a granola breakfast bar.
In addition to the product market, the geographic market is also important in determining market share. The relevant geographic market, the territory in which the firm sells its products or services, may be national, regional, or local in nature. Geographic market may be limited by transportation costs, the types of product or service, and the location of competitors.
Once sufficient monopoly power has been proved, the Sherman Act requires a showing that the company in question engaged in unfair conduct. The courts have differing opinions as to what constitutes unfair conduct. Some courts require the company to prove that it acquired its monopoly power passively or that the power was thrust upon them. Other courts consider it an unfair power if the monopoly power is used in conjunction with conduct designed to exclude competitors. Still other courts find an unfair power if the monopoly power is combined with some predatory practice, such as pricing below marginal costs.
Attempts to Monopolize
Section two of the Sherman Act also prohibits attempts to monopolize. As with other behavior prohibited under the Sherman Act, courts have had a difficult time developing a standard that distinguishes unlawful attempts to monopolize from normal competitive behavior. The standard that the courts have developed requires a showing of Specific Intent to monopolize along with a dangerous probability of success. However, the courts have no uniform definition for the terms intent or success. Cases suggest that the more market power a company has acquired, the less flagrant its attempt to monopolize must be.
Conspiracies to Monopolize
Conspiracies to monopolize are unlawful under section two of the Sherman Act. This offense is rarely charged alone, because a conspiracy to monopolize is also a combination in restraint of trade, which violates section one of the Sherman Act.
In accordance with traditional conspiracy law, conspirators to monopolize are liable for the acts of each co-conspirator, even their superiors and employees, if they are aware of and participate in the overall mission of the conspiracy. Conspirators who join in the conspiracy after it has already started are liable for every act during the course of the conspiracy, even those events that occurred before they joined.
WE THE PEOPLE CAN REVERSE THIS GLOBAL CORPORATE CAPTURE VERY EASILY. WE SIMPLY NEED PEOPLE TO ENGAGE.
Two things would downsize global corporations right away and both are simply reinstating Rule of Law. First, we recover the trillions of dollars in corporate fraud and that will downsize global corporations and next we enforce Sherman Anti-Trust Laws rather than having pols and appointments who write excuses for mergers that have no basis in truth. If your pols are not shouting that these anti-trust laws are not being enforced
THEY WORK FOR GLOBAL CORPORATIONS---GET RID OF THEM. ALL MARYLAND POLS ARE GLOBAL CORPORATE POLS.
'Monopolies
Section two of the Sherman Act prohibits monopolies, attempts to monopolize, or conspiracies to monopolize. A monopoly is a form of market structure where only one or very few companies dominate the total sales of a particular product or service. Economic theories show that monopolists will use their power to restrict production of goods and raise prices. The public suffers under a monopolistic market because it does not have the quantity of goods or the low prices that a competitive market could offer'.
In conclusion, I agree with Zepher Teachout:
'There are also reasons to think an antitrust policy focused on size and power makes good economic sense. Despite economic theorizing, bigger companies are not always more efficient companies. And even if they were, there are important societal efficiencies that go beyond whether individual companies operate cheaply or produce low-cost products. As Bert Foer of the American Antitrust Institute recently testified before Congress, we can choose to use competition policy to help prevent much of the systemic risk that has crippled our economy. By focusing more on size and concentration, we might be able to avoid collapse, unplanned nationalization, and bailouts'.
What are the Sherman Antitrust and Clayton Acts?
In the late 1800’s and early 1900’s, the U.S. government struggled with anti-competitive practices between businesses. Part of the concern was related to artificial pricing practices that harmed consumers. In response to these monopolies, cartels, and trusts, Congress passed two major pieces of legislation: The Sherman Antitrust Act and the Clayton Act.
The Sherman Antitrust Act
Passed in 1890, the Sherman Antitrust Act was the first major legislation passed to address oppressive business practices associated with cartels and oppressive monopolies. The Sherman Antitrust Act is a federal law prohibiting any contract, trust, or conspiracy in restraint of interstate or foreign trade.
Even though the title of the act refers to trusts, the Sherman Antitrust Act actually has a much broader scope. It provides that no person shall monopolize, attempt to monopolize or conspire with another to monopolize interstate or foreign trade or commerce, regardless of the type of business entity.
Penalties for violating the act can range from civil to criminal penalties; an individual violating these laws may be jailed for up to three years and fined up to $350,000 per violation. Corporations may be fined up to $10 million per violation. Like most laws, the Sherman Antitrust Act has been expanded by court rulings and other legislative amendments since its passage. One such amendment came in the form of the Clayton Act.
The Clayton Act
The purpose of the Clayton Act was to give more enforcement teeth to the Sherman Antitrust Act. Passed in 1914, the Clayton Act regulates general practices that may be detrimental to fair competition. Some of these general practices regulated by the Clayton Act are: price discrimination, exclusive dealing contracts, tying agreements, or requirement contracts; mergers and acquisitions; and interlocking directorates.
The Clayton Act is enforced by the Federal Trade Commission (FTC) and the Department of Justice (DOJ). Many of the provisions of the Clayton Act set out how the FTC or DOJ can respond to violations. Other parts of the Clayton Act are designed to proactively prevent anti-trust issues. For example, before two companies can merge, they must notify the FTC and obtain approval prior to the merger. The Clayton Act also created exemptions from enforcement for certain organizations, the most significant being labor unions.
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Notice this article was written in the Reagan Administration as neo-liberalism was pushed mainstream. 'Trustbusting was a law created by farmers and small businesses inept and afraid of REAL BUSINESS MINDS say neo-liberals'. Indeed, at the time this article was written small farmers were being wiped out by BIG AG which became GLOBAL AG. Small businesses have been wiped out by BIG BOX and GLOBAL BIG BOX. We now have a captured, crony, criminal, unaccountable globally controlled economy with huge unemployment. So, ignoring Anti-Trust killed the US economy and US consumers....the very reason these laws were written. The idea that whoever is in power can pick and choose which Constitutional laws to enforce does not work IN A RULE OF LAW EQUAL PROTECTION NATION. They cannot simply decide to ignore anti-trust laws.
They know that and when the FTC and US Justice Department approves these mergers----they allow excuses for how the merger will be good for competition and the consumer THAT NO ONE BELIEVES. IT IS PROPAGANDA.
We can reverse all of these deals by simply reinstating Rule of Law. Public malfeasance and duplicity in wrongful contract does not hold up. Citizens should be outside every courtroom that might decide to rule against the American people on these issues. Global corporate pols have passed laws that send these cases to particular courts that then are staffed with judges that rule for corporations----
STOP ALLOWING THEM TO FIX OUR COURT SYSTEM AND DEMAND EQUAL PROTECTION AND RULE OF LAW!
This was written by an historian that also wrote a book on MADE IN THE USA. The failure to enforce Anti-Trust laws is the very reason we lost all of our industries.
Trustbusting And The Images Of An Earlier Time
October 30, 1986|By Thomas V. DiBacco.
One of the most salutary, unheralded developments in recent years is that trustbusting has gone the way of the wind. To be sure, the Justice Department and the Federal Trade Commission sometimes put their feet in the way of proposed mergers, but the breaking up of large corporations is dead--except, of course, in those rare situations like the telephone industry where one company controls virtually everything.
The Sherman Antitrust Act of 1890 was a bad law, conceived by farmers and uncompetitive small businesses who wanted to keep their world unchanged. They defied obvious realities, such as that the large corporation could effect economies of scale; small retailers even campaigned against extending the nation`s mail system in the early 20th Century because it would benefit Sears, Roebuck & Co. and its catalogue business.
Even worse, the notions of the farmer and small retailer toward what was monopolistic drew upon emotion rather than sensible criteria. Take one example: The first multi-unit big business in the United States was Western Union, which grew in the wake of Samuel F.B. Morse`s pioneering work with the telegraph in 1844. By 1857 there were six telegraph companies controlling the industry, a few years later there were three and by 1866 there was only Western Union. To be sure, there were subsequent attempts to cut into Western Union`s monopolistic position, but all failed and no major antitrust movement arose.
At the same time, the nation`s numerous railroads would come under rigorous legislative scrutiny. The first federal regulatory measure, the Interstate Commerce Act, came in 1887, three years before the Sherman Antitrust Act. And no industry was more the object of antitrust action in subsequent years than the railroads.
Some analysts might suggest that the telegraph industry would raise little antitrust fervor because it created a vast communications system that made economic sense. The rails, on the other hand, were spread without much rhyme or reason throughout the land, creating enormous frustrations for users, such as farmers, who claimed their lines were too few and expensive.
Maybe so, but one cannot disregard the emotional aspects of popular democracy in the late 19th Century. Just as today, Americans lived to some degree by images as well as reality.
The image of the railroad--belching black smoke, deafening all other sounds, killing livestock and people before technology came to its rescue--was not likely to leave Americans emotionally neutral. In addition, the railroads looked massive, and so were readily associated with wealth.
The vision of the telegraph industry, on the other hand, was that of a small, green-visored telegrapher tapping away in a small office. Unlike the railroad`s steel rails, a thin telegraph line could not conjure up much emotion. Even the recent break-up of AT&T was led by competitors rather than consumers.
So let`s not mourn the end of trustbusting, a democratic notion whose history merits rich obscurity.
Thomas V. DiBacco is a historian at the American University, Washington, D.C. His book, ``Made in the U.S.A.: The History of American Business,`` will be published by Harper & Row in March.
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'The judge who wrote this opinion? Clarence Thomas, who took Judge Bork's place on the D.C. Circuit after Bork resigned. Thomas was joined in the opinion by Ruth Bader Ginsburg. Justice Sotomayor has used applied Bork reasoning in antitrust cases when she sat on the 2nd Circuit Court of Appeals. Elena Kagan has agreed that the Bork/Posner drive to incorporate neoliberal economics into antitrust law is necessary. During her confirmation hearings she said "it’s clear that antitrust law needs to take account of economic theory and economic understandings."
If the American media educated as to the issues that really matter------not whether a pol supports a higher minimum wage but are they neo-liberals who do not value anti-trust laws and thus embrace global corporations that break these anti-trust laws. That is what we would have known about Obama had any media outlet educated voters during the election. Obama is from The Chicago School of Law that is ground zero for neo-liberal economic policy and law. Take a look at the names in the article on anti-trust policy over the decades to see why people are nominated for court ====especially the Supreme Court====and you see how neo-liberalism and the dismantlement of anti-trust has been the goal of court appointments especially for Obama. Everyone says----even Republicans -----that we do not have free market economics----we have a crony economics and that happened when Sherman Anti-Trust laws were ignored.
Sun Jan 09, 2011 at 06:58 PM PST
Robert Bork's influence over antitrust law
by brooklynbadboy for Daily Kos
When President Reagan nominated Judge Robert Bork to the Supreme Court in 1987, a political war began. Judge Bork had been a circuit judge on the District of Columbia Court of Appeals, which could be considered the second most powerful court in the nation. Although he was 60 years
old, his influence over ultra-conservative jurisprudence became well known at the time of his nomination. He is one of the founding fathers, so to speak, of originalism. Democrats feared that his confirmation would shift the court so far to the right that it would be decades before balance could be restored. That political war was fought mainly over Judge Bork's stance on Roe vs. Wade, a war which President Reagan lost. Fierce opposition from Democrats like Ted Kennedy and some Republicans like Arlen Specter, led to Bork being rejected by the Senate 58 to 42. Anthony Kennedy was confirmed unanimously in his wake. Judge Bork resigned his seat on the DC Circuit the following year, leaving his colleague on the court Antonin Scalia to carry the battle flag for another time. But Judge Bork's influence didn't fade. He is still held in high esteem by conservative legal scholars over such matters as federalism, original intent, and other matters. But his influence over another body of law is deep, pervasive and is playing out across the nation in ways that will probably be felt for generations.
After serving as Solicitor-General for Presidents Nixon and Ford from 1973 to 1977, Bork wrote a book that has had a lasting influence on the American economy. The Antitrust Paradox is Robert Bork's magnum opus. Along with Judge Robert Posner's seminal book Antitrust Law(1976), the influence that Bork's book has had on modern competition law in the conservative era is difficult to overstate. Both men are associated with the so-called Chicago School of neoliberal economics with its heavy emphasis on deregulated markets and the rational choice theory. Conservative legal minds like George Priest at Yale have praised his influence:
Virtually all would agree that the Supreme Court, in its change of direction of antitrust law beginning in the late 1970s, drew principally from Judge Bork's book both for guidance and support of its new consumer welfare basis for antitrust doctrine.
Liberal legal minds like Zephyr Teachout have written about Bork's influence as well:
The spirit of antitrust has been eviscerated over decades by people like Robert Bork, who argued that antitrust had to be about "efficiency," as if efficiency was a nonpolitical, objective idea we all might measure.
The D.C. Circuit Court of Appeals made Bork's doctrine official in a 1990 ruling in United States vs. Baker Hugues, which was a Clayton Antitrust Act enforcement action brought against Texas oil services company Baker Hughes. That influential ruling solidified the Chicago School's influence over antitrust enforcement by holding:
The Supreme Court has adopted a totality-of-the-circumstances approach to the statute, weighing a variety of factors to determine the effects of particular transactions on competition. That the government can establish a prima facie case through evidence on only one factor, market concentration, does not negate the breadth of this analysis. Evidence of market concentration simply provides a convenient starting point for a broader inquiry into future competitiveness...
The judge who wrote this opinion? Clarence Thomas, who took Judge Bork's place on the D.C. Circuit after Bork resigned. Thomas was joined in the opinion by Ruth Bader Ginsburg. Justice Sotomayor has used applied Bork reasoning in antitrust cases when she sat on the 2nd Circuit Court of Appeals. Elena Kagan has agreed that the Bork/Posner drive to incorporate neoliberal economics into antitrust law is necessary. During her confirmation hearings she said "it’s clear that antitrust law needs to take account of economic theory and economic understandings."
While Justice John Paul Stevens is now considered a liberal champion, his primary, if lesser known, achievement on the court was initiating the embrace of Robert Bork's antitrust reasoning. When President Ford appointed Stevens to the Supreme Court in 1976, replacing traditional antitrust crusader William O. Douglas, he had already spent 20 years as an antitrust lawyer in Chicago. He taught antitrust law at the University of Chicago, where many other Chicago School neoliberals had ensconced themselves. He had been recruited there by the dean of the University of Chicago Law School, Ed Levi. After serving as a Nixon appointment to the 7th Circuit Appellate Court, he came highly recommended to President Ford by now Attorney-General Ed Levi and one other: Ford's Solicitor-General, Robert Bork.
Ford appointed Stevens to the Court in 1976. Shortly thereafter, the Court began to take Chicago School ideas seriously, ultimately completely overturning antitrust doctrine in a movement that continues today.
It is difficult to overstate Stevens' contribution. At the time of his appointment, the development of antitrust doctrine for four decades had consisted of the continuous expansion of per se rules prohibiting a wide range of practices: price-fixing and territorial restrictions; group boycotts; tying arrangements; predatory pricing; and resale price maintenance, among others.
When John Paul Stevens' position on antitrust law is the left-most position, that is clearly indicative of a fundamental transformation of applied law. It happened quickly and the scope and effect of it has been breathtaking. And Robert Bork was right at the center of making it happen.
While I don't want to get into heavy legal theory in this piece, I'll try to summarize quickly how Judge Bork's views changed the nature of enforcement of antitrust law and then move to the effects these changes are having on our economy. This is not a scholarly essay, but rather a polemic. My goal in describing how Judge Bork's views affect America is political, not exclusively legal in nature.
In a 2007 paper published at Berkeley, antitrust scholars Johnathan Baker and Carl Shapiro get to the heart of the matter:
The past forty years have witnessed a remarkable transformation in horizontal merger enforcement in the United States. With no change in the underlying statute, the Clayton Act, the weight given to market concentration by the federal courts and by the federal antitrust agencies has declined dramatically. Instead, increasing weight has been given to three arguments often made by merging firms in their defense: entry, expansion and efficiencies.
The primary effect that Judge Bork had on antitrust enforcement is changing the standards by which antitrust actions are brought and decided. The basic point of Judge Bork's book is that the determinative factor of when and how an antitrust action should be decided should be economic rather than political. This is why the factors determining the use antitrust powers are decidedly financial in nature: Are there any barriers to entry? Is the consumer paying higher prices than usual? The fixation on consumer choices and prices, rather than market concentration and number of actors is the basic fundamental difference between modern and classical antitrust enforcement. This is why you have not and will not see a breakup of a major corporation in America today no matter how large or how concentrated its market share. In simpler terms, it does not matter if Wal-Mart is the sole source of food in your county as long there are a wide variety of products, the prices are low and in theory someone else could open up a store. No barrier to entry? Wide variety? Low prices? Monopoly approved.
The original spirit of competition law in America, however, was decidedly political. Senator John Sherman of Sherman Antitrust Act fame, put it this way:
If we will not endure a king as a political power we should not endure a king over the production, transportation, and sale of any of the necessaries of life.
Justice William O. Douglas, writing in a 5-4 dissent in United States vs. Columbia Steel, however, may have put the purpose of antitrust law better than anyone else:
"We have here the problem of bigness. Its lesson should by now have been burned into our memory by Brandeis. The Curse of Bigness shows how size can become a menace--both industrial and social. It can be an industrial menace because it creates gross inequalities against existing or putative competitors. It can be a social menace...In final analysis, size in steel is the measure of the power of a handful of men over our economy...The philosophy of the Sherman Act is that it should not exist...Industrial power should be decentralized. It should be scattered into many hands so that the fortunes of the people will not be dependent on the whim or caprice, the political prejudices, the emotional stability of a few self-appointed men...That is the philosophy and the command of the Sherman Act. It is founded on a theory of hostility to the concentration in private hands of power so great that only a government of the people should have it."
That isn't an economic argument about consumer prices or market efficiency. Justice Douglas' argument for antitrust law was moral/political and it was not uncommon in his time.
The 1950's and 1960's were what might be considered the "golden age" in classical antitrust enforcement. During that era, the use of the Sherman, Clayton, and Robinson-Patman Acts inter alia, were buttressed by the Celler-Kefauver Act. Those bills allowed the Federal Government to aggressively limit mergers, intervene in concentrated markets and combat anti-competitive behavior with the heavy hand of consent decree regulation. While the era did not bring about a great deal of break-ups, the corporations knew there was a tough cop on the beat. The problem with these laws, however, was that they were so broad that they left a great deal of discretion over enforcement to the executive branch and the courts. What would happen if both institutions developed a very different view of "bigness" than John Sherman or Justice Douglas?
The "golden age" ended partly because of the tremendous legal influence of Robert Bork. His view of competition law fit neatly with the ascendancy of neoliberal economic thought. New antitrust enforcement guidelines were written by successive conservative administrations, whose members accepted Bork & Posner's thinking on the subject. Antitrust actions declined on both number and scope. The few actions that were brought were on the most obvious price-fixing and the like. Next, lawyers who accepted or in some cases enforced Bork's views were appointed to the district and appellate bench. Even nominally liberal judges appointed by Bill Clinton accepted the economic view of antitrust law and focused their concerns solely on consumer prices, product choice, etc. Mergers that in the 1950's would have completely rejected were approved.
You need only look at the recent history of Bank of America since 1980 to see the effects of the lack of meaningful antitrust enforcement. In the first thirty years of the conservative era, Bank of America was allowed by antitrust enforcers to become so gargantuan, that it's failure posed a direct threat to the entire national economy. So huge in fact, that only the government could bail it out as it approached failure in 2008. While Judge Bork and his ilk would likely point to the benefits of "free checking" and "national ATM coverage" to the consumer, classical antitrust enforcers would look at the size and concentration of an entity that large and conclude it's massive size poses an excessive risk to society as a whole. Taxpayers now know costly "the problem of bigness" can be.
When one considers the Citizens United ruling within the context of the dominant laissez-faire thinking among antitrust lawyers, it is easy to understand why large corporations have become the dominant institutions in American life. While there was a strong progressive and labor movement in the early part of the 20th Century to act as a counterweight to to the "robber barons" and "trusts," today no such movements exist. Perhaps progressives had thought the laws they worked so hard for, laws expressly designed to curb the size and concentration of corporate power, had largely made monitoring such things no longer imperative. But antitrust law was just a much a fundamental element of economic justice for the middle class as the labor movement. Even in cases where the trust busters failed, the people could see that there were people in government who were on their side, protecting the weak from the strong. But the conservatives planned ahead and planned well. Their victory was so complete, the Bush Administration didn't bother trying to enforce even the relatively lax Bork antitrust rules. And now, things are so far diverted from their original purpose, that Obama Administration's more robust antitrust action is firmly ensconced in Chicago School-style enforcement. Without traditional antitrust laws, or a labor movement, and unlimited corporate spending on elections, who or what will bring balance to the forces corporate power have over the people and their government?
In conclusion, I agree with Zepher Teachout:
There are also reasons to think an antitrust policy focused on size and power makes good economic sense. Despite economic theorizing, bigger companies are not always more efficient companies. And even if they were, there are important societal efficiencies that go beyond whether individual companies operate cheaply or produce low-cost products. As Bert Foer of the American Antitrust Institute recently testified before Congress, we can choose to use competition policy to help prevent much of the systemic risk that has crippled our economy. By focusing more on size and concentration, we might be able to avoid collapse, unplanned nationalization, and bailouts.
To get there, we will either need a new body of competition law, or new teaching to undo the effects of the influential Robert Bork.
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'This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” As this article has shown, however, “the constitutional guarantee of liberty deserves more respect—a lot more.”
The research paper below has a great overview of the history of corporate monopoly in American history. Take a look---it is too long to post in entirety. What we know is that the US Constitution does not allow for the merging of US corporations to the extent that has happened and it occurs because we elect pols that ignore the Constitution. We are now watching as these global corporate pols manufacture reasons why global corporations are good for the public and economy -----
Northwestern University School of LawNorthwestern University School of Law Scholarly CommonsFaculty Working Papers2012
Monopolies and the Constitution: A History of Crony Capitalism
Steven G. CalabresiNorthwestern University School of Law, s-calabresi@law.northwestern.eduLarissa Price
CONCLUSION
While the evils of state granted monopolies in England did not lead to an antimonopoly provision in the federal constitution, there is ample evidence that the right to be free from government monopolies is deeply rooted in this country’s history and tradition. The English fear of monopolies was a fear that Americans experienced under colonial rule, and it provided one of many justifications put forward for American independence. The Antifederalists spoke out against monopolies, and Federalists such as James Madison discussed the issue with Thomas Jefferson and George Mason during the debates on the Constitution. During the ratification of the federal Constitution, six states even requested the inclusion of an antimonopoly clause as an amendment to the Constitution. In addition, Congress is only given enumerated power to create monopolies in the Patent and copyright context, which implies that Congress lacks such power in other contexts. Moreover, the Privileges and Immunities Clause of Article IV may very well have recognized a constitutional right to be free from partial or discriminatory laws. Two states had antimonopoly provisions in their constitutions at the time of the founding, and many more states added antimonopoly provisions to their constitutions during the nineteenth century due to the Jacksonian concern about monopolies. This thread of Jacksonian thought was adopted by the Abolitionists and then by Reconstruction era Republicans who argued that the institution of slavery was itself a particularly perverse monopoly. The antimonopoly argument thus played an important role in the writing of the Fourteenth Amendment, which for the Radical Republicans was a ban on all systems of class-based legislation, of exclusive privileges, and of monopolies
All of this evidence—from Seventeenth Century England, from the colonial period, from the experience in the states, and from the framing of the Fourteenth Amendment--makes it clear that there is a strong antimonopoly tradition in U.S. constitutional law.The fact that inrecent times the federal courts have, for the most part, relegated cases involving economic regulations to limited “rational basis” review, however, has meant that until recently challenges to laws on antimonopoly grounds were unlikely to be successful. This may change now that the rational basis test has been employed to strike down classifications on the basis of sex, sexual orientation, and mental retardation, and now that the Takings Clause is experiencing a revival at the level of the U.S. Supreme Court. Despite the post New Deal rational basis mindset, this article has shown that state antimonopoly clauses in particular have proven to be important for striking down a number of economic regulations that grant special privileges to some at the expenseof others—licensing requirements, taxes designed to benefit preferred industries, monopolies to do business with the government, and price controls designed to benefit insiders. Antimonopoly clauses can also be used to strike down laws such as licensing requirements where the court finds that the laws grant special privilege absent any health and safety concerns. Challenges to state laws on antimonopoly grounds have been made recently, such as with a law governing Maryland horse massages and with the Texas horse floating cases discussed in Section III. The right to compete, and more fundamentally, the right to earn an honest living, is a basic right embodied in U.S. constitutional law. There is substantial evidence, from the English and colonial history, from debates on the federal constitution and its ratification, from the history of the Fourteenth Amendment, and from state constitutional law, to show that this is the case. However, the longstanding use of rational basis review has meant that the courts have too often surrendered to a legislative process that is dominated by well-entrenched interest groups seeking monopoly rents from the state. It means that fundamental economic liberties too often go unprotected by the courts. In short, the use of rational basis review has meant that “property is at the mercy of the pillagers.” As this article has shown, however, “the constitutional guarantee of liberty deserves more respect—a lot more.”
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Please take time to understand the intended effects of the Affordable Care Act. It seeks to consolidate and deregulate the health industry just as Clinton's policies to consolidate and deregulate the financial industry. What will become global health systems will control every aspect of health care. IT WILL BECOME A MONOPOLY.
The discussion below is a good start----it takes a business viewpoint but the arguments are laid out. The fact is that ACA sets the stage for violations of anti-trust and with global corporate pols in office all of this will be ignored.
IT MATTERS HAVING CLINTON GLOBAL CORPORATE POLS CONTROLLING THE PEOPLE'S DEMOCRATIC PARTY. NATIONAL LABOR AND JUSTICE LEADERS BACKING THESE NEO-LIBERALS ARE NOT WORKING FOR AMERICAN FAMILIES.
Sherman Antitrust Act versus Affordable Care Act: FTC's successful merger challenge in the matter of St. Luke’s Hospital of Idaho
29 APR 20142:00 PM - 3:15 PM (UTC-05:00) Webinar
In a widely reported decision, the FTC has successfully challenged the merger between St. Luke’s Hospital of Idaho and Salzer Medical Group, resulting in a federal court ruling that the merger would violate US antitrust law. DLA Piper is pleased to present a webinar discussing the ramifications of this significant case.
Webinar Playback
Presentation Slides AMONG THE TOPICS:
- Overview of the intersection between the Affordable Care Act and the Sherman Antitrust Act
- Summary of the St. Luke’s matter, including the district court’s rulings on market power, cost efficiencies and reimbursement rates
- Cost efficiencies and related risks under the ACA that were at issue
- What next? Antitrust and health care takeaways
Carl Hittinger, Co-Chair, US Antitrust and Trade Regulation Group
Steve Goff, Co-Chair, Health Care Sector
Downloads
Presentation Slides
Webinar Playback
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WE THE PEOPLE can reverse this global corporate takeover very easily. Simply running and voting against Clinton neo-liberals will send them packing. Then we will have pols shouting for Rule of Law. Rule of Law itself will downsize US global corporations. First, there is the recovery of trillions in corporate fraud that will downsize these fraud- bloated corporations. Then there is the Anti-Trust laws in the Constitution that will break apart these unlawful mergers and acquisitions. Remember, it is the FED and Treasury that regulates banks and is allowing all the financial frauds and the President and a Clinton neo-liberal Senate appointed these agency heads. It is the FTC---Federal Trade Commission and the US Justice Department----Eric Holder ----that stops mergers that violate anti-trust. Again, these are Clinton neo-liberal appointments approved by a neo-liberal Senate who are ignoring anti-trust laws. WE ALL KNOW THESE MERGERS ARE CREATING MONOPOLIES.
'Still, the act was a far-reaching legislative departure from the predominant laissez-faire philosophy of the era'.
If courts are stacked with Bork neo-liberal judges then a politician and citizens stand outside and shout that such rulings are not to be interpreted from the intent of this law. This is very boring but it gives the law as it is written. Think about Clinton allowing the telecommunications industry to merge after the ATT breakup. Flash forward to today and we have Verizon and Comcast each flooding advertising offering the same things for the same price. The cable competition is now disappearing with the last approved merger of Comcast.
HOW IS THIS COMPETITION AND HOW IS PAYING $200 A MONTH PRICE AFFORDABILITY. WALL STREET ANNOUNCED THAT WHEN CABLE GOES THOSE PRICES WILL GO TO $400 A MONTH.
Sherman Anti-Trust Act
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Sherman Anti-Trust Act The Sherman Anti-Trust Act of 1890 (15 U.S.C.A. §§ 1 et seq.), the first and most significant of the U.S. antitrust laws, was signed into law by President Benjamin Harrison and is named after its primary supporter, Ohio Senator John Sherman.
The prevailing economic theory supporting antitrust laws in the United States is that the public is best served by free competition in trade and industry. When businesses fairly compete for the consumer's dollar, the quality of products and services increases while the prices decrease. However, many businesses would rather dictate the price, quantity, and quality of the goods that they produce, without having to compete for consumers. Some businesses have tried to eliminate competition through illegal means, such as fixing prices and assigning exclusive territories to different competitors within an industry. Antitrust laws seek to eliminate such illegal behavior and promote free and fair marketplace competition.
Until the late 1800s the federal government encouraged the growth of big business. By the end of the century, however, the emergence of powerful trusts began to threaten the U.S. business climate. Trusts were corporate holding companies that, by 1888, had consolidated a very large share of U.S. manufacturing and mining industries into nationwide monopolies. The trusts found that through consolidation they could charge Monopoly prices and thus make excessive profits and large financial gains. Access to greater political power at state and national levels led to further economic benefits for the trusts, such as tariffs or discriminatory railroad rates or rebates. The most notorious of the trusts were the Sugar Trust, the Whisky Trust, the Cordage Trust, the Beef Trust, the Tobacco Trust, John D. Rockefeller's Oil Trust (Standard Oil of New Jersey), and J. P. Morgan's Steel Trust (U.S. Steel Corporation).
Consumers, workers, farmers, and other suppliers were directly hurt monetarily as a result of the monopolizations. Even more important, perhaps, was that the trusts fanned into renewed flame a traditional U.S. fear and hatred of unchecked power, whether political or economic, and particularly of monopolies that ended or threatened equal opportunity for all businesses. The public demanded legislative action, which prompted Congress, in 1890, to pass the Sherman Act. The act was followed by several other antitrust acts, including the Clayton Act of 1914 (15 U.S.C.A. §§ 12 et seq.), the Federal Trade Commission Act of 1914 (15 U.S.C.A. §§ 41 et seq.), and the Robinson-Patman Act of 1936 (15 U.S.C.A. §§ 13a, 13b, 21a). All of these acts attempt to prohibit anticompetitive practices and prevent unreasonable concentrations of economic power that stifle or weaken competition.
The Sherman Act made agreements "in restraint of trade" illegal. It also made it a crime to "monopolize, or attempt to monopolize … any part of the trade or commerce." The purpose of the act was to maintain competition in business. However, enforcement of the act proved to be difficult. Congress had enacted the Sherman Act pursuant to its constitutional power to regulate interstate commerce, but this was only the second time that Congress relied on that power. Because Congress was somewhat uncertain of the reach of its legislative power, it framed the law in broad common-law concepts that lacked detail. For example, such key terms as monopoly and trust were not defined. In effect, Congress passed the problem of enforcing the law to the Executive Branch, and to the judicial branch, it gave the responsibility of interpreting the law. Still, the act was a far-reaching legislative departure from the predominant laissez-faire philosophy of the era.
Initial enforcement of the Sherman Act was halting, set back in part by the decision of the Supreme Court in United States v. E. C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 325 (1895), that manufacturing was not interstate commerce. This problem was soon circumvented, and President Theodore Roosevelt promoted the antitrust cause, calling himself a "trustbuster." In 1914, Congress established the Federal Trade Commission (FTC) to formalize rules for fair trade and to investigate and curtail unfair trade practices. As a result, a number of major cases were successfully brought in the first decade of the century, largely terminating trusts and basically transforming the face of U.S. industrial organization.
During the 1920s, enforcement efforts were more modest, and during much of the 1930s, the national recovery program of the New Deal encouraged industrial collaboration rather than competition. During the late 1930s, an intensive enforcement of antitrust laws was undertaken. Since World War II, antitrust enforcement has become increasingly institutionalized in the Antitrust Division of the Justice Department and in the Federal Trade Commission, which over time, was granted greater authority by Congress. Justice Department enforcement activities against cartels are particularly vigorous, and criminal sanctions are increasingly sought. In 1992, the Justice Department expanded its enforcement policy to cover foreign company conduct that harms U.S. exports.
Restraint of Trade
Section one of the Sherman Act provides that "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations is hereby declared to be illegal." The broad language of this section has been slowly defined and narrowed through judicial decisions.
The courts have interpreted the act to forbid only unreasonable restraints of trade. The Supreme Court promulgated this flexible rule, called the Rule of Reason, in Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911). Under the Rule of Reason, the courts will look to a number of factors in deciding whether the particular restraint of trade unreasonably restricts competition. Specifically, the court considers the makeup of the relevant industry, the defendants' positions within that industry, the ability of the defendants' competitors to respond to the challenged practice, and the defendants' purpose in adopting the restraint. This analysis forces courts to consider the pro-competitive effects of the restraint as well as its anticompetitive effects.
The Supreme Court has also declared certain categories of restraints to be illegal per se: that is, they are conclusively presumed to be unreasonable and therefore illegal. For those types of restraints, the court does not have to go any further in its analysis than to recognize the type of restraint, and the plaintiff does not have to show anything other than that the restraint occurred.
Restraints of trade can be classified as horizontal or vertical. A horizontal agreement is one involving direct competitors at the same level in a particular industry, and a vertical agreement involves participants who are not direct competitors because they are at different levels. Thus, a horizontal agreement can be among manufacturers or retailers or wholesalers, but it does not involve participants from across the different groups. A vertical agreement involves participants from one or more of the groups—for example, a manufacturer, a wholesaler, and a retailer. These distinctions become difficult to make in certain fact situations, but they can be significant in determining whether to apply a per se rule of illegality or the Rule of Reason. For example, horizontal market allocations are per se illegal, but vertical market allocations are subject to the rule-of-reason test.
Concerted Action
Section one of the Sherman Act prohibits concerted action, which requires more than a unilateral act by a person or business alone. The Supreme Court has stated that an organization may deal or refuse to deal with whomever it wants, as long as that organization is acting independently. But if a manufacturer and certain retailers agree that a manufacturer will only provide products to those retailers and not to others, then that is a concerted action that may violate the Sherman Act. A company and its employees are considered an individual entity for the purposes of this act. Likewise, a parent company and its wholly owned subsidiaries are considered an individual entity.
Evidence of a concerted action may be shown by an express or written agreement, or it may be inferred from Circumstantial Evidence. Conscious parallelism (similar patterns of conduct among competitors) is not sufficient in and of itself to imply a conspiracy. The courts have held that conspiracy requires an additional element such as complex actions that would benefit each competitor only if all of them acted in the same way.
Joint ventures, which are a form of business association among competitors designed to further a business purpose, such as sharing cost or reducing redundancy, are generally scrutinized under the Rule of Reason. But courts first look at the reason that the Joint Venture was established to determine whether its purpose was to fix prices or engage in some other unlawful activity. Congress passed the National Cooperative Research Act of 1984 (15 U.S.C.A. §§ 4301-06) to permit and encourage competitors to engage in joint ventures that promote research and development of new technologies. The Rule of Reason will apply to those types of joint ventures.
Price Fixing
The agreement to inhibit price competition by raising, depressing, fixing, or stabilizing prices is the most serious example of a per se violation under the Sherman Act. Under the act, it is immaterial whether the fixed prices are set at a maximum price, a minimum price, the actual cost, or the fair market price. It is also immaterial under the law whether the fixed price is reasonable.
All horizontal and vertical price-fixing agreements are illegal per se. Horizontal price-fixing agreements include agreements among sellers to establish maximum or minimum prices on certain goods or services. This can also include competitors' changing their prices simultaneously in some circumstances. Also significant is the fact that horizontal price-fixing agreements may be direct or indirect and still be illegal. Thus, a promotion or discount that is tied closely to price cannot be raised, depressed, fixed, or stabilized, without a Sherman Act violation. Vertical price-fixing agreements include situations where a wholesaler mandates the minimum or maximum price at which retailers may sell certain products.
Market Allocations
Market allocations are situations where competitors agree to not compete with each other in specific markets, by dividing up geographic areas, types of products, or types of customers. Market allocations are another form of price fixing. All horizontal market allocations are illegal per se. If there are only two computer manufacturers in the country and they enter into a market allocation agreement whereby manufacturer A will only sell to retailers east of the Mississippi and manufacturer B will only sell to retailers west of the Mississippi, they have created monopolies for themselves, a violation of the Sherman Act. Likewise, it is an illegal agreement that manufacturer A will only sell to retailers C and D and manufacturer B will only sell to retailers E and F.
Territorial and customer vertical market allocations are not per se illegal but are judged by the Rule of Reason. In 1985, the Justice Department announced that it would not challenge any restraints by a company that has less than 10 percent of the relevant market or whose vertical price index, a measure of the relevant market share, indicates that collusion and exclusion are not possible for that company in that market.
Boycotts
A boycott, or a concerted refusal to deal, occurs when two or more companies agree not to deal with a third party. These agreements may be clearly anticompetitive and may violate the Sherman Act because they can result in the elimination of competition or the reduction in the number of participants entering the market to compete with existing participants. Boycotts that are created by groups with market power and that are designed to eliminate a competitor or to force that competitor to agree to a group standard are per se illegal. Boycotts that are more cooperative in nature, designed to increase economic efficiency or make markets more competitive, are subject to the Rule of Reason. Generally, most courts have found that horizontal boycotts, but not vertical boycotts, are per se illegal.
Tying Arrangements
When a seller conditions the sale of one product on the purchase of another product, the seller has set up a Tying Arrangement, which calls for close legal scrutiny. This situation generally occurs with related products, such as a printer and paper. In that example, the seller only sells a certain printer (the tying product) to consumers if they agree to buy all their printer paper (the tied product) from that seller.
Tying arrangements are closely scrutinized because they exploit market power in one product to expand market power in another product. The result of tying arrangements is to reduce the choices for the buyer and exclude competitors. Such arrangements are per se illegal if the seller has considerable economic power in the tying product and affects a substantial amount of interstate commerce in the tied product. If the seller does not have economic power in the tying product market, the tying arrangement is judged by the Rule of Reason. A seller is considered to have economic power if it occupies a dominant position in the market, its product is advantaged over other competing products as a result of the tying, or a substantial number of consumers has accepted the tying arrangement (evidencing the seller's economic power in the market).
Monopolies
Section two of the Sherman Act prohibits monopolies, attempts to monopolize, or conspiracies to monopolize. A monopoly is a form of market structure where only one or very few companies dominate the total sales of a particular product or service. Economic theories show that monopolists will use their power to restrict production of goods and raise prices. The public suffers under a monopolistic market because it does not have the quantity of goods or the low prices that a competitive market could offer.
Although the language of the Sherman Act forbids all monopolies, the courts have held that the act only applies to those monopolies attained through abused or unfair power. Monopolies that have been created through efficient, competitive behavior are not illegal under the Sherman Act, as long as honest methods have been employed. In determining whether a particular situation that involves more than one company is a monopoly, the courts must determine whether the presence of monopoly power exists in the market. Monopoly power is defined as the ability to control price or to exclude competitors from the marketplace. The courts look to several criteria in determining market power but primarily focus on market share (the company's fractional share of the total relevant product and geographic market). A market share greater than 75 percent indicates monopoly power, a share less than 50 percent does not, and shares between 50 and 75 percent are inconclusive in and of themselves.
In focusing on market shares, courts will include not only products that are exactly the same but also those that may be substituted for the company's product based on price, quality, and adaptability for other purposes. For example, an oat-based, round-shaped breakfast cereal may be considered a substitutable product for a rice-based, square-shaped breakfast cereal, or possibly even a granola breakfast bar.
In addition to the product market, the geographic market is also important in determining market share. The relevant geographic market, the territory in which the firm sells its products or services, may be national, regional, or local in nature. Geographic market may be limited by transportation costs, the types of product or service, and the location of competitors.
Once sufficient monopoly power has been proved, the Sherman Act requires a showing that the company in question engaged in unfair conduct. The courts have differing opinions as to what constitutes unfair conduct. Some courts require the company to prove that it acquired its monopoly power passively or that the power was thrust upon them. Other courts consider it an unfair power if the monopoly power is used in conjunction with conduct designed to exclude competitors. Still other courts find an unfair power if the monopoly power is combined with some predatory practice, such as pricing below marginal costs.
Attempts to Monopolize
Section two of the Sherman Act also prohibits attempts to monopolize. As with other behavior prohibited under the Sherman Act, courts have had a difficult time developing a standard that distinguishes unlawful attempts to monopolize from normal competitive behavior. The standard that the courts have developed requires a showing of Specific Intent to monopolize along with a dangerous probability of success. However, the courts have no uniform definition for the terms intent or success. Cases suggest that the more market power a company has acquired, the less flagrant its attempt to monopolize must be.
Conspiracies to Monopolize
Conspiracies to monopolize are unlawful under section two of the Sherman Act. This offense is rarely charged alone, because a conspiracy to monopolize is also a combination in restraint of trade, which violates section one of the Sherman Act.
In accordance with traditional conspiracy law, conspirators to monopolize are liable for the acts of each co-conspirator, even their superiors and employees, if they are aware of and participate in the overall mission of the conspiracy. Conspirators who join in the conspiracy after it has already started are liable for every act during the course of the conspiracy, even those events that occurred before they joined.
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