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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.
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.
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.
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
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.