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LinuxPlanet Interviews Robert Bork
Greg writes: "Robert Bork, former Supreme Court appointee from the Reagan era and a recent entrant in the MS antitrust case, did an
interview
over at LinuxPlanet. The topic? The Evil Empire's court settlement." Bork isn't actually new to the Microsoft case or to the subject of monopolies -- his legal experience makes this an interesting read, even for those who don't consider Microsoft an "evil empire."
Robert Bork is the #1 authority on modern antitrust law, with Richard Posner (who served as a mediator in this case) a close #2.
Modern antitrust law is essentially what Bork & Posner suggested would better protect consumers in a series of law beginning inthe late 60's. They pointed out that the current state of the law made no sense, conflicting wsith itself and the economics it dealt with (Brown Shoe, Bork's favorite: Brown & Kinney, with 5% and 1% of the manufacturing & sales markets for shoes, wanted to merge. DoJ blocked this (successfully with the USSC) on the grounds that it would allow them to sell a product of comparable quality at a lower price than their competitors . . . aren't you grateful for such protection?)
Anyway, Bork is seen as a rabid conservative, which is inaccurate (though he's now a conservative on many issues), but he wasactually a screaming leftist (borderline socialist) who learned some economics and changed his positions based on them--to achieve the original goals.
Bork argued that the sole legitimate test of the competition was whether it benefitted or hurt the consumer: if consumers will see lower prices from the merger of ten firms down to 3, than it is a pro-competitive merger. He also arugued that the law should protect competition, not the other competitors.
His antitrust rules are *not* republican--the Clinton administration pretty much took the same path.
hawk, esq.
Yes and no. You are right--he was not an "appointee", implying that he was appointed and confirmed. He was appointed, but rejected. More accurate would be "Bork, Reagan's Supreme Court nominee"
However, "Borking" does not mean rejected for idealogical reasons, per se. Those that opposed Bork's nomination didn't like his ideology, we presume, but "Borking" is a process whereby you spike a nomination through a series of procedural delays, character smearing, mud-slinging, and/or the calling in of political favors or threatening of political retribution. It's the casting of a nominee in the worst possible light and using parlimentary schemes to discourage passage of the nomination.
It's a shameful way of doing the "People's Business", and has probably been in constant use since ancient Rome.
Potato chips are a by-yourself food.
To be fair, this is only in stark contrast to the other type of interpretation of the constitution, where the justice will start with a belief about what the law OUGHT to say, and the proceeds to find sections of the constitution that can be broadly inferred to mean what they want. Never mind precendent, other parts of the constitution, etc.
7 November 2006: The day Americans realized corruption and incompetence weren't addressing 11 September 2001
George Will is wrong. Or, if you prefer, he's wrong, but in an interesting way.
Capitalist economies do spring up automatically. It is in our nature to get what we want at the best price. The interworking of this with more than a single person will be inherently capitalist. Look at kids trading baseball cards: each gets what they want for what they want to pay.
Government does not bring forth capitalism: government's nature is to grow more government. Government's place in a capitalist society is to inhibit the strong from unfairly overpowering the weak. Remember those baseball card trading kids? Government is the teacher on the playground keeping the big kid from knocking the other kids down and simply taking their baseball cards.
The means by which, and the extent to which the government does this is where we get today's political parties. However, after some 60 years of steadily increasing government involvement, it seems that the more government gets involved, the less good it does. Indeed, it seems, at least to some people, to be doing more harm than good.
George Will, in saying that government promotes capitalism, is wrong. Government does have a role, but that role (if you are to have pure capitalism) is very, very limited. Capitalism is intuitive and inherent in our nature.
Potato chips are a by-yourself food.
IANAL, but there must be more to consumer 'benefit' that simply tomorrow's retail prices.
What good does it do for consumers to pay lower prices tomorrow, but inflated monopoly or collusion prices 5 years from now become some anti-trust decision deemed that lower prices tomorrow was in the 'consumer interest'.
What good does it do for consumers to pay lower prices tomorrow because of some anti-trust decision when future innovations that could could create evolutionarily or revolutionarily better products are stifled by that decision?
The trick is, consumer retail prices are easy to measure, and and therefore make for more straightforward cases.
Lawyers like easy cases.
You might want to read a book before posting next time. I can suggest Ludwig von Mises "Human Action" as an excellent trist on the subject.
Here's why capitalism is like crabgrass: Any time property rights are protected to any degree, and freedom to associate is allowed to any degree, people begin to trade their skills and materials with others. If money is available, money is used.
Those with high skills or materials in demand trade their skills or materials at a higher "price" than lesser skills or materials.
Bingo. Capitalism. Supply and demand. A good barber in Kabul the day after the Taliban runs out has more business than a bad barber. No one plans it, the myriad decisions of each individual creates capitalism spontainiously.
So, Eryq, do you wish to say why you believe "capitalism" does not exist except by some plan or decision from On High? Care to give an example? Would you please support your assertion?
Bob-
The Ludwig von Mises Institute. The reasoning individuals economics
During the Watergate scandal, Archibald Cox (the first ever independent prosecutor, a la Ken Starr) faced down the Whitehouse in an (ultimately succesful) effort to unearth damning evidence of criminal activity by both President Nixon and Veep Spiro Agnew.
Nixon wanted to fire Cox, but it wasn't in his power to do so. As an Independent Prosecutor, Cox was subordinate only to the Attorney General, Elliot Richardson. So Nixon demanded that Richardson fire Cox. This was an appalling abuse of power. Nixon essentially threw out the rule of law to satisfy his political ends. In an act of great courage, Richardson refused to comply. So Nixon fired him. Then he promoted the Deputy A.G. to acting A.G. and gave him the same order --- fire Cox. Again, a refusal; and again Nixon fired the guy. Next in line at the Justice Dept was the Solicitor General. At the time, this was none other than our friend Robert Bork. Nixon made him acting A.G. and ordered him to fire Cox. Bork consented and fired him. As an added bonus, he sent FBI agents over to the Prosecutor's office to seal it off, temporarily shutting down the investigation of the President.
This was the famous "Saturday Night Massacre" --- the most serious constitutional crisis ever faced by the United States, in fact. Bork's decision to cave in to Nixon's unconstitutional power grab forever marked him in the eyes of many Americans, and not just Democrats, either. When Reagan nominated him for the Supreme Court, the possibility of having someone who had helped Richard Nixon flaunt the rule of law sitting on the highest court in the land was just too much for many to bear. And so he was borked.
People talk about "Microsoft using its monopoly power to..." without recognizing that the only power Microsoft has is the price at which they sell their product.
That's not quite true, but it's a good start. You realize, with their market share, that this power means that Microsoft could instantly destroy Dell, Gateway, Compaq, or any other computer manufacturing company they choose by simply raising that OEM's prices through the roof? That they could bring about such a destruction a bit more slowly by simply raising OEM costs for Windows and Offices up to the retail price? And that the OEMs know this, and so are forced to sign whatever anticompetitive agreement Microsoft wants in order to stay alive?
If you're so libertarian that you don't have any problem with abuse of monopoly power, then what's your problem with the government? Just tell yourself, "The government owns all land within it's borders, and 'property deeds' are just end user license agreements that let me use the land as long as I follow the government's laws." Then you can think of the government as just the luckiest of the big corporations, you can happily bend over for them too, and everything should be A-OK.
Many people do not have that choice. The whole point of Microsoft's manopoly is that they're stifling choice and, incidentally, innovation. It's all very well to say that you have the choice of using another product, but Microsoft has deliberately used its power in a manner that has resulted in a situation where anyone who uses an alternative can find themselves at a major disadvantage--witness, if you will, the ubiquitous .doc format. Sure, I can use AbiWord or StarOffice, and send files as html or txt, but what happens when someone sends me a .doc file because everyone else uses Microsoft Word? Yes, AbiWord and SO have built in Word compatibility. Why do you think that is? Because Microsoft has such control over the market that without conforming to their "standards" you are crippled. The open source support for .doc is imperfect, and always one step behind as Microsoft constantly changes the format system each time they bring out a new version of Word. Why do you think that is? The only reason I can think of to do something so pointless is to keep the competition one step behind. It's not like there're any new features in Word that would require significant reworkings of the .doc format. Additions yes. Modifications? I don't think so.
It's all very well to say that everyone has a choice, and that if we're using Microsoft software it must be because we all chose to, but that's a very naive and simplistic, not to mention unexamined and self-deluding viewpoint.
If I weren't so nice, I'd be inclined to think you're a Microsoft employee, trolling (quite successfully I might add. It's not often I meet a troll browsing at +3).
I'm a Chicken! Tweet!
That's a gross oversimplification. Microsoft wouldn't be worth jack squat if there weren't billions of .doc and .xls files out there that their products process better than anybody else's.
Why can't others duplicate Microsoft's products? Because Microsoft enjoys the dual protections of copyright and trade secrets. Without either one, competitors would swarm out of the woodwork and eat Microsoft's lunch because office software is a mature product that should be a commmodity by now.
How are the copyright and trade secret protections facilitated? By the heavy hand of government, of course. It is interesting that when the U.S. Constitution was written, there was no single technology such as software that could combine the two protections in such a powerful way. The powerful combination allows the barrier of entry into a monopolized software market to be almost infinite.
Take the example of Sun, who is giving away a capable office suite for free. Most people doubt that even at this price that they can significantly impact Microsoft's market share. This is largely because their handling of proprietary .doc and .xls files is less than perfect. This proves that microsoft's chosen pricing has little to do with the dynamics of this market.
In fact, I'd argue that if you can't even give a product away, it's not a market. There is no market for office software today. Just a government-facilitated fiefdom.
I'm not surprised that Bork opposes that joke of a deal. While he's certainly been a critic of antitrust law in general, he at least sticks to his principles. Many "conservatives" bash the antitrust case out of either deference to Micro$oft (a large campaign contributor) or sheer ignorance.
Many people overlook another conservative who chose to follow the law and base his thinking on the facts: Thomas Penfield Jackson...the judge in the original antitrust case. Jackson too was appointed by Reagan. In fact, he was appointed specifically to quash antitrust cases that came his way. But U.S. vs. Microsoft was just too compelling...they openly flaunted the law and even went so far as to fabricate evidence (the infamous video showing how difficult it was to remove IE). His findings of fact in the case, which were upheld by the appellate court, paint a picture of an extremely arrogant and socially destructive corporation openly engaging in socially destructive practices in clear violation of the law of the land.
I long for the days when there were still principled conservatives to be found in positions of power. I can respect an honest difference of opinion...but that's rare anymore. In a world where most conservatives are Enron conservatives it's nice to see someone take a principled stand (Bork's work for Netscape notwithstanding).
"You done taken a wrong turn."
-Bill McKinney, in Deliverance
You overstate the case, he is also considered a heel in many other legal circles. Consider his 1963 article "Civil Rights - A Challenge" (New Republic, July 6, 1963 pp 21-24). There he argued that forcing whites to deal with blacks on an equal footing was an infringment upon whites' freedom of contract.
(The editors saw fit to apoligize for the article at the end.)
Amendments 9 and 10 just spelled that out in neon lettering.
As far as "interpretability" goes, the 2nd is slightly vague, but when taken with the other writings and sayings of the people who wrote it, it becomes clear that they intended that the average Joe have access to weaponry. They didn't want a standing army, etc. Each male with a gun was part of the "militia," called up to defend the neighborhood/town/city/state/nation. Rather than have a standing army, the idea was to train teh regular citizenry to be the defenders of the nation. Those "other writings" aren't part of the Constitution, but all the other laws of the country are interpreted by the courts along with the "intent of congress," so including the "intentions of the founders" in adjudication of constitutional law is par for the course. On a strict reading it would seem to say that each state can have its own army, but armed gangs are illegal.
However: remembering that the constitution doesn't grant people rights, it only limits the government 's scope of actions by granting it specific, enumerated powers, there's no where in the Constitution that prohibits citizens from owning weapons. We would be able to own guns without the 2nd amendment at all. Assuming, of course, that the courts could also remember (alas, they cannot) that U.S. Citizens are not granted specific rights, but have all rights be default.
A clearer case is #1:
"Congress shall make no law" doesn't have much wiggle room in it.
Number 9 is pretty clear, too:
"Shall not." Gotcha.
However, the quality went down as the years progressed. Number 17, for instance, is a mess. It changed the U.S. from a Republic into a Representative Democracy. From a Federation of Soverign States into one big state. It should really be repealed.
It's pretty clean compared to number 12, though. Sheesh:
Napster-to-go says "Fill and refill your compatible MP3 player", which is a lie. It's not MP3. It's WMA with DRM.
No, No, No, NO! People are NEVER EVER granted rights. It is self-evident ALL men(women now too) are created equal and endowed by their creator with certian inalienable rights.
Now lets look at the 2nd Ammendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
It talks about 3 things: a free State, a Militia and the People. Obiously those 3 things are different since they are called by 3 seperate names. If the founders had ment that the Militia or Army could have guns the ammendment would have read:
A well regulated Militia, being necessary to the security of a free State, the right of the *Militia* to keep and bear Arms, shall not be infringed.
But it doesn't it sais the People, and so it would be foolish to interprit it any other way than what it *clearly* sais.
NOTE: I personally find it interesting to note that the language here differs from the 1st Ammendment. In the first Ammendment it is only congress that is barred from making laws about speech. The language here is argueably stronger, the right shall not be infringed, meaning by any branch. Thus it would seem that the courts clearly don't have any jurisdiction to limit firearms ownership in any way. Thus I would agree that you have a right to own Thermonucs, Biological, and Chemical weapons.
That is one of the problems with this Ammendment, and thus we should change this situation. However, the proper way to change it is not to get the courts to decide that that it really doesn't mean what it clearly sais it means because it is unreasonable in todays society. The answer is to ammend the constitution. If we allow the courts to reinterprit this right, then we have *NO* rights. We allow lawyers to become arbiters of our society, the law is unclear because it no longer sais what is written, but what someone sais it sais.