Posts Tagged ‘Robert Bork’

“Competition is one click away:” can the Internet ever be a dominated market?

January 4, 2013

After a lengthy investigation and several compromises on Google’s part, the Department of Justice has announced that it is dropping its antitrust probe into Google’s advertising model. Throughout the investigation, a catchphrase among Google’s various agents involved in the investigation was that, no matter how restrictive their agreements with sites and advertisers, no matter how far the reach of Google’s algorithms, Google’s competitors were always just “one click away.” But is this actually a sensible defense to the kind of antitrust investigation that the Department of Justice was running? And if it is, is it ever actually possible to commit an antitrust violation on the internet?

The DoJ’s investigation in Google was on a wide variety of issues, but most of the important issues orbited the question of whether or not Google had been abusing its dominant market share in search engine traffic to leverage unfair or overly restrictive arrangements with advertisers. Note that the question is not whether Google has dominant market share, or even if Google actually is a monopoly (it isn’t), since, contrary to a widespread misunderstanding of antitrust law, it is not illegal per se to be a monopoly or to hold dominant market power. The inquiry is into the methods used to acquire the power, and how that power is used once it has been acquired. Conversely, a firm does not need dominant market share or monopoly power in order to be guilty of most antitrust crimes: two tiny boutique firms that sign an agreement not to compete in a certain city (a “geographic market distribution” violation) or mutually agree not to price below a certain level (a “horizontal price-fixing scheme,” the only antitrust violation that more or less guarantees criminal penalties on top of civil ones) are just as guilty as a giant firm.

The question becomes stickier when it comes to mergers, but fortunately for the complexity of this post, the DoJ investigation that recently ended is separate from the investigation into Google’s acquisition of Motorola, which caused quite a stir in the DoJ and forced Google to make certain concessions in the European Union.

Antitrust laws are targeted to anything that harms competition – not competitors. Google’s acquisition of a huge market share through ingenuity, good products, and dumb luck has surely been ruinous to several competitors along the way, but that’s all in the nature of the free market and is beyond the purview of the antitrust laws. What was more interesting to the Department of Justice was Google’s manipulation of search engine rankings according to deals made between Google and its advertisers. Combined with certain restrictive non-compete agreements with this advertisers made the DoJ increasingly nervous that Google was making deals in “restraint of trade-” the money phrase for antitrust violations. Google reminded the investigators simply that, for consumers looking for a better deal, competition was only “a click away.”

But the simple fact is that the antitrust laws do not really much care about the impact on consumers. The subject of yesterday’s post wrote a widely-read treatise on antitrust laws called The Antitrust Paradox making precisely the point that antitrust laws often result in worse outcomes for consumers, completely missing the point of antitrust laws, which is to protect no people, no businesses, and no products: just competition itself. Whether or not the average internet user got a better browsing experience, or if advertisers saw better returns on their marketing investments, is immaterial to the question of whether or not Google violated the antitrust laws.

In addition to being largely irrelevant, Google’s claim that its competitors are but a click away is usually simply false: Google’s advertising pervades the internet. Even if one might get to a different search engine some other way, many other search engines actually incorporate Google results into their algorithms, and the site that one actually accesses after using a search engine are often consumers of Google advertising deals. Google’s competitors were simply having a tough time getting a word in edgewise because many web content providers (including, until a couple of years ago, this blogging platform) were under exclusive deals to contract with Google’s AdSense.

Another sign of weakness in Google’s one-click defense is that Google actually made several concessions throughout the investigation; Google either knew the DoJ wasn’t going to buy its defenses, thought that it might not buy them, or had actually been told that the DoJ wasn’t going to buy them. In either event, over the course of the investigation, Google “voluntarily” changed many of its back-end practices and the structure of some of its advertising deals to make the market more accessible to competitors.

It remains an open (and legally irrelevant) question as to whether or not consumers will benefit from these deals, and if so, which consumers – advertisers? Web users? Search engine providers? The theoretical underpinning of antitrust law is that protection of competition is protection of consumers, since our laws are built to protect an economic model that assumes that competition yields the best market outcomes. Whether or not that is true is entirely beyond the purview of the antitrust laws or this post, but the fact is that the antitrust laws assume that one follows from the other. It remains to be seen whether or not consumers will fare better, or even notice, the products of the Department of Justice’s investigation of Google.

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Robert Bork the Catholic

January 3, 2013

We recently lost Robert Bork, a relatively clever jurist better known for his bloody and ultimately unsuccessful Supreme Court nomination. Accurately or not, his was a nomination almost immediately attacked by a coalition of liberal interests from civil libertarians and civil rights advocates to reproductive rights advocates and the ACLU to Ted Kennedy, ultimately failing by a solid majority in the Senate. This puts Bork in the whopping 8% of Supreme Court nominees to have a confirmation rejected after a full vote by the Senate, though this was far from the end of his long and successful career.

Something you may not know, something more apropos to a skeptical blog than his CV, is that Bork is a convert to Catholicism. While a fellow of the American Enterprise Institute, his second wife (his first wife died in 1980) introduced him to the Church, one of whose agents told him that his views were closely aligned with those of the Catholic Church. He formally converted in 2003 with some hand-waving references to intelligent design and a close alignment with its social policies. While he waited until his 70s to convert (advantageous, Bork said, because by that age one was too old to commit any more interesting sins anyway so a single absolution should suffice), there are certainly hints of his affinity for Catholic thinking in his judicial career, and not just in his social policy. While Bork spent much of his post-confirmation failure claiming that he had been slandered and smeared by the American left, the fact that Bork saw such similarity between himself and an authoritarian, anti-woman, anti-gay, fiercely plutocratic organization speaks volumes as to the sincerity of those objections.

Bork’s views on homosexuality were mainstream for 20th jurisprudence, which is to say, rather unfriendly to the gay crowd. The parallel to Catholic theology is clear, but again, this criticism of Bork isn’t entirely fair because there were no significant pro-gay judges in the 20th century who had any meaningful impact on the law. More telling is his affinity for the jurisprudential framework called originalism.” Originalism is the view that the only appropriate reading of the Constitution is to pretend that the authors of the Constitution all thought the same thing about each of its provisions, then pretend that you know what they were thinking using your modern interpretive lens (Scalia, for example, has very strong ideas about what the Founding Fathers thought about weapons that hadn’t yet been invented in the 18th century), then decide the laws of a 21st-century nation according to the products of those various imaginings. Originalism is a deeply religious concept; the Catholic Church, too, prioritizes the antiquity of a document as a marker of its authority over its actual persuasiveness. Originalism holds up the actual text and structure of a founding document and confers authority upon it not in virtue of its actual merits as a framework for a well-ordered society, or for the outcomes that it yields in terms of equity or justice, but simply because of who wrote it and how old it is.

I describe originalism sarcastically because it makes very little sense to me. I think that it has problems of both its outcomes for constitutional interpretation and in its internal coherence. But Bork was one of its luminaries (strange that an ideology so geared towards the Constitution’s origins has only seen its greatest popularity centuries after those origins), and he religiously advocated that religion-like doctrine.

Originalism is a not unpopular legal doctrine and so it is no particular black mark on Bork’s record that he, along with Antonin Scalia, virtually founded the modern originalist movement. Less flattering to his legacy as a jurist, though perhaps more important to his legacy as a Catholic, is the book he wrote in the mid-90s while at the Enterprise Institute, Slouching Towards Gomorrah. I read the book in preparation for writing this post, and I must say, it is a real disaster as far as what one should expect from a decently able-minded jurist. Where Bork’s other written works, such as his treatise on antitrust law, are polished and more thoroughly-cited than a law review article, Slouching is more like what I would expect from a merely average Christian whiner targeting the late-70s, white, Christian, “get-off-my-lawn!” crowd. Without going into much detail beyond “moral terpitude,” Bork spends the book attacking everything even vaguely associated with political leftism from reproductive liberty to pornography to “bra-burning” (he is unperturbed by the fact that bra-burning was never actually a thing), and in the good Catholic tradition, he roundly blames virtually everything not advocated on the 1962 GOP party platform for the “decline” of America (his book was written during the historical peak of American prosperity; in fact, the “decline” that he describes as beginning in the 1960s was in fact interrupted by only a single lengthy economic downturn: the Reagan era).

Grouchy social conservatism and originalism are defining features of the Catholic Church, and they are the two things that Bork may be most remembered for. Which is too bad, because Bork was not by any stretch an unlettered fellow, and he would probably have been a significant presence on the Supreme Court. He hopefully would have learned a thing or two while there. But now he is lost to us, and unfortunately he is commended to history with a lengthy screed against the damn hippies and a rare but highly cinematic failure before the Supreme Court to his name. In remembering him, I encourage you to pursue his more important works, especially his inquiry into antitrust law, since though today he may be more widely-known merely as a political ninny, the first to be “Borked,” he was wiser than that as a scholar, and more sinister than that as a man.