Philadelphia Reflections

The musings of a physician who has served the community for over six decades

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Robert H. Bork (1 of 1) 5 blogs
"The life of the law has not been logic. It has been experience. "--Oliver Wendell Holmes, Jr.

The Sherman Antitrust Statute and its Penumbra

The Sherman antitrust statute was written in haste, and most of its real substance is found in the Clayton antitrust statute, the National Labor Relations Act, the Federal Trade Relations Act, and countless commentaries from decisions of the Supreme Court. Cases related to this subject often run for several years, so a whole industry of lawyers on both sides of the aisle concentrates on this subject alone, and defends its methods. The patron saint of this industry is Justice Brandeis, who helped mold a Republican law into a Democratic concept that evil pricing and merger practices result in the discomfort or dissolution of small business competitors, and competition, therefore, must suffer. In time, proof or admission of any one of the per se violations became sufficient to complete a case without further litigation. Since the computer case which destroyed Philadelphia's computer dominance went on for years, the per se shortcut was thought to have a real advantage over "trials of the merits." But it also resulted in the Maricopa case which had multiple appeals of a per se violation eliminating physician control of HMOs -- by a 4-3 Supreme Court decision, deemed final without any examination of the substance of the underlying accusation. The great majority of cases were tried on the per se violations level, and never examined the merits of other evidence. It has even become rumored that some courts sacrificed justice in order to clear crowded calendars of settled law, on which the judges had long ago made up their minds about rightful outcomes..

Into this atmosphere rushed Bork the young whippersnapper. The law gradually shifted its position from praising smallness to praising competition, probably noticing that the Industrial Revolution had shifted the upper edge of "small "business to a billion dollars of revenue per year. Bork persisted in the belief that this was not enough. The real test should be whether consumer prices become lower after a merger, or whether some other evidence might be produced that the public benefitted from the change, primarily through "vertical integration". Where the question rests is now whether the integration of any sort might merely be a smokescreen for producer capture of unelected regulatory agencies. Years after Bork himself has died, it remains a political decision whether "abdication to unelected regulators" is the real goal, or whether Bork's revolution will stop with "consumer benefit". Either way, it is a great victory for logic, to shift the goalposts so far within one man's lifetime, and continuing to gather momentum nearly a decade after he has died.

Please notice that Bork's "logic" also threatens Oliver Holmes's "experience", so Bork may be far from finished with us, even after the visible tangles have been addressed.

Originally published: Wednesday, April 03, 2019; most-recently modified: Friday, May 31, 2019