On April 21, 2021, the Federalist Society's Corporations, Securities, & Antitrust Practice Group hosted a teleforum titled "The Antitrust Paradox: A Conversation with Sen. Mike Lee and Robert Bork, Jr." Judge Robert H. Bork's famous work, The Antitrust Paradox, has been republished so that the new generation of general practitioners and antitrust thinkers alike can bring his work to bear on their own. Senator Mike Lee, who wrote the republished edition's foreword, and Robert Bork, Jr., discussed the book, the present state of antitrust issues, and more.
- Robert H. Bork, Jr., President, The Bork Foundation; President, Antitrust Education Project
- Sen. Mike Lee, United States Senate, Utah
- Moderator: Dean Reuter, Vice President, General Counsel, and Director of Practice Groups, The Federalist Society
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Dean Reuter: Welcome to The Federalist Society's special Zoom conference call as today, April 27th, 2021 we discuss the republication of the classic and seminal work, The Antitrust Paradox. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.
I'm very pleased to welcome two guests today, both experts on antitrust to discuss our topic. I'm very pleased to announce, I guess in terms of The Federalist Society's audience, the republication of The Antitrust Paradox. It is available now for sale.
And you don't have to buy early additions of the book for hundreds and hundreds of dollars. Senator Lee is thankfully, helpfully holding a copy of the book up. It's available at bookstores everywhere and online everywhere. So please take a look at that.
Today, we're going to get some opening remarks from Robert Bork, Jr. He is the President of the Bork Foundation and the Antitrust Education Project. He's obviously been the leader in the republication effort of the book. And then we're going to have a bit of a conversation with Senator Mike Lee, who wrote a forward for the book.
Mike Lee, of course, is U.S. Senator from the State of Utah. And then, as always, we'll be getting to you with questions. We're going to ask you to use the chat function on your Zoom feature to ask questions, or to propose questions and we'll get to as many questions as possible.
I should say at the outset that we only have Senator Lee until 12:30. He's got a hard stop then. But we'll carry on with additional questions to the extent there are additional questions. With that, Bob Bork, 8 to 10 minutes for opening remarks. Please go right ahead.
Robert Bork, Jr.: All right. Well, you cut off my microphone if I get to long. Anyway, I just want to thank you, Dean, and The Federalist Society for hosting this event. And to Senator Lee, many thanks for writing the introduction to the new addition of The Antitrust Paradox.
Bringing my father's seminal work back into print has been a labor of love over the past three years and I couldn't be happier to launch it with Senator Lee, who is a true champion of the consumer welfare standard.
Now, unlike Mike, I'm not a lawyer. But when Robert Bork is your father, you get your law degree, of sorts, at the dinner table growing up. And I remember my father working at his cramped attic study in New Haven to develop his concept of antitrust law. He was about 40 at the time, sitting at a desk my mother made for him out of an old door, scribbling with his Scripto mechanical pencil on the blue-lined pages of yellow legal pads. And unfortunately, a cloud of smoke surrounded him from the Camel cigarette hanging from the corner of his mouth. And this was all before the beard.
My father was teaching himself, at that time, calculus. And he did so because he believed that specialist in antitrust should have as much command of basic price theory as specialists in other areas of law have of forensic medicine, or tax accounting. The product of his labors was this masterpiece, The Antitrust Paradox: A Policy at War with Itself, for which Senator Lee has written this magnificent introduction to the new edition.
The conclusion of my father's work was a profound declaration that antitrust law was designed to protect consumers. Up until that time, antitrust law had become a barrage of conflicting decisions that tended to raise prices and support inefficient firms to the detriment of consumers. That was the paradox of his title.
My father saw that antitrust law had fallen under the sway of subjective biases. Justice Louis Brandeis denounced the curse of bigness against small dealers and worthy men. The idea being that the law should protect small, often artisanal firms against the predations of larger, more efficient firms.
Justice William O. Douglas took up this cudgel in the '60s and '70s, slacking businesses for being too successful. What was getting lost was the obvious question. Did the transaction or practice in question harm or benefit consumers?
To provide the means to answer these questions is why I found my father studying calculus late at night. He believed judges had a duty to think through the real-world consequences of their jurisprudence. Thus, the consumer welfare standard was born as the metric by with to apply a cost benefit analysis to antitrust law from the perspective of the consumer.
The Antitrust Paradox advanced the view that judges should apply neutral principles with no slant against or for big business, or small dealer, or a magical ability to identify worthy men. Justice Douglas, who longed to become President, was perhaps the greatest example of what my father thought a judge should never be, a philosopher king on the bench.
Robert Bork saw that if antitrust law were detached from consumer welfare, it would be free to pursue aesthetic and political goals at the expense of consumers and innovation. Worst of all, he saw in the jurisprudence of his times a dangerous anti-democratic principle arising. There was a kind of consumer democracy that Americans practice at the check-out aisle by voting with their dollars.
Then there is the actual democracy, and the laws made by officials elected by the people. When judges use antitrust law to reorder a business according to their personal whims or aesthetic principles, they degrade both forms of democracy.
Antitrust law detached from the consumer welfare standard becomes a judicial Ouija board. It is apt to go anywhere and spell out anything guided by the personal preferences of the judge. Such ruthless jurisprudence allows judges to create new law, introducing a level of unpredictability into business that stymies innovation harming consumers.
The first Supreme Court opinion to cite The Antitrust Paradox came just a year after the book's publication in 1979. From that moment on, the Court explicitly adopted the consumer welfare standard as antitrust defining principle. This common understanding of antitrust law's purpose is in danger of being replaced by theories that are more vague, subjective, and politicized than they were before the book was published.
Recent lawsuits against technology companies supported by almost every state and the Department of Justice are rooted in animus [inaudible 00:06:53] resurrecting the old, but discredited, dogma of the curse of bigness. Government attorneys in both parties demonize multi-billion dollar acquisitions as harmful to innovation when such buyouts were allowed by regulators and have stimulated the desire for innovators to innovate.
Proponents of a new antitrust standard ignore the benefits of economies of scale and network of effects which are the result of the choices consumer s who remain free to destroy corporate empires with mere purchase [inaudible 00:07:24]. Modern thinkers are losing touch with how vital to democracy it is to have neutral judges enforcing a neutral standard. We all lose when judges replace the laws enacted by our elected representatives with their personal sensibilities.
Critics charge that the consumer welfare standard has an obsessive focus on price at the expense of innovation and competition. This has never been true. The Antitrust Paradox established that a successful consumer standard bears many fruits in addition to low prices, innovation, output, abundant product choices, and quality.
What is behind this renewed wave of ruthless antitrust action? Why is this happening now? Well, on the left, a new Brandeis movement is underway articulated by Lina Khan, and others. Ms. Khan says the new Brandeis movement isn't just about antitrust. It's about values. And Senator Klobuchar has introduced into the 117th Congress a sweeping bill that contains many provisions to protect workers and consumers spurring innovation and promoting economic equity.
One again, a body of law meant to defend consumers is now being adorned like the White House Christmas tree. It protects workers. It promotes equity. It somehow, and here is the jurisprudential Ouija board, helps us realize new and better values.
Antitrust is in danger of becoming the Swiss army knife of laws. Only it will never open a single bottle of wine. On the right, conservatives outraged by liberal bias by big tech are suddenly all too happy to join in this dilution of long-standing antitrust principles. Many are ready to throw out the consumer welfare standard and neutral principles, all to give Mark Zuckerberg and Jeff Bezos a little heartburn.
Senator Josh Hawley would outlaw mergers and acquisitions for companies with valuations over 100 billion, which would freeze Boeing, Exxon Mobile, Proctor & Gamble and dozens of other leading businesses in place. This is not the recipe for protecting competition. It is a recipe for fossilizing American capitalism.
While practically all Democrats lined up behind Klobuchar's bill, and more and more Republicans, like Senator Hawley and Senator Ted Cruz, we could well see the end of capitalism as we know it under the guise of antitrust law.
As I watch this all unfold, I had to do something to reinforce what we already know. So I established the Bork Foundation and The Antitrust Education Project and became a publisher, bringing The Antitrust Paradox back into print.
I'm here today to defend the consumer welfare standard from this bipartisan assault. I understand why Republican senators are angry. But destroying American capitalism is an extremist approach to getting back at woke social media companies. We should have faith that innovation and more capitalism, not less, will correct today's irritations. It always does. And that's why I'm proud to republish and represent The Antitrust Paradox to a newly skeptical world. Thank you very much. Dean?
Dean Reuter: Thank you so much, Bob Bork. That was a great way to set the table. I appreciate your remarks. We're going to turn now to a discussion with Senator Mike Lee. And a reminder for those of you who joined late, or information for those who joined late, we have Senator Lee until 12:30 and then we'll carry on without him afterwards.
Senator Lee, welcome and thank you for being here. We certainly appreciate you spending some time with us today. I guess my first question is, why -- maybe more why than how, but why did you get involved in this project in the relaunch republication of The Antitrust Paradox?
Sen. Mike Lee: Well, first of all, I'm a nearly lifelong fan of Judge Bork. An interesting fact here is, the very first Senate Judiciary Committee that I remember paying any attention to was that of Judge Bork when he was nominated to the Supreme Court in 1987. I was a junior in high school at the time. And I watched the entire thing with rapt attention and became a huge fan of his.
He and my father had worked together, and knew each other well, and were very fond of each other. My dad told me great things about him. But I became independently a fan of him all the way back then and was grateful for his willingness to serve and his willingness to go very patiently through a very cruel process.
So it was my first Senate Judiciary Committee hearing that I paid attention to. It also resulted the very first Federalist Society event that I ever attended. As a junior in high school, a few months after he went through that process, I found out that Judge Bork would be speaking just a couple miles from my law school -- from my high school at Brigham Young University Law School, where my dad was teaching at the time. And so I did what any teenager would do, I organized an official field trip of the Teenage Republican Club to go watch him speak.
Since becoming a lawyer, I've become a huge believer in, and a defender of the consumer welfare standard. And so naturally, given my affinity for Judge Bork, and I also go to know Bob, many years later, as a young associate at Sidley and Austin, where he was consulting with one of our clients there, when I was working with Gene Share [sp] and some other great lawyers at Sidley.
So anyway, when I found out that this book was coming out, it was just a wonderful opportunity when I was asked to put together an introduction. And I'm just honored to have done so.
Dean Reuter: Well terrific. As always, when we're doing a book event, I'm tempted to repeat the title, The Antitrust Paradox, endlessly. But it's already well known to so many people, I don't know if I need to continue to do that. But thank you for those first remarks.
I'm wondering if you could share your views, Senator, on what I guess has become known as hipster antitrust or I don't know if that could be used interchangeably with biggest bad -- the biggest bad sort of view of the world when it comes to businesses and corporations, but I'd love to hear your views on that.
Sen. Mike Lee: Very time question for the reasons that you elude to in your question, there. There is certainly a movement. A movement on the left consisting largely of people who'd like to consider themselves to be neo-Brandeisians. Meaning that they want a progressive approach to the law. And they want to return to the way that antitrust laws were interpreted and applied in the middle of the 20th century.
This is the crowd that wants to think and wants all of us to imagine that big is always bad. That big is necessarily bad. It's bad because it's big. Now you see this among academics. And you see it among many others who increasingly are starting to label themselves as anti-monopoly, rather than simply saying that they support aggressive antitrust enforcement. And that they support competition and do so while lauding the virtues of competition. It tends to bring prices down and tends to increase quality.
I think this is incredibly revealing. Because being anti-monopoly is a blanket statement suggesting that every big business is bad, regardless of whether it achieved its success, and therefore its bigness through innovation and through competition, or through something less wholesome. One of the things that distinguishes American antitrust law is that it does not, and to my knowledge, never has made it illegal in the abstract to hold a monopoly. It, instead, makes unlawful the efforts to acquire or to maintain a monopoly through exclusionary conduct. Through anti-competitive behavior.
Even if enforcement has been perfect, and let's be clear, there have been big mistakes in the way our antitrust laws have been interpreted and implemented over the course of many decades, this has been a source of explosive economic prosperity. And it's because we've focused on competition. Or the fact that competition, in itself, is a good thing.
I'm also concerned about efforts to shoehorn left-wing social policies into antitrust. And this isn't a hypothetical concern. This is happening right now. People are aggressively taking this approach in many cases.
Take labor issues, for instance. There are growing calls by people on the left to use antitrust laws to deal with labor policy. But recent history shows how this might backfire. Look, for example, of the merger of American Airlines with U.S. Air. The Department of Justice sued to block a deal, but it was supported by American Airlines labor unions after they got contract concessions from the company. So DOJ ultimately settled for what many viewed as a slap on the wrist.
But bringing labor and other political factors into antitrust enforcement is only going to increase this kind of rent seeking. And may actually lead to more consolidation and less competition. And so this sort of thing, we find, ends up being good for special interests, but really bad for consumers.
So all that said, it's also become a project of mine to fight against this false dichotomy that says that you've got a binary choice. That you either have to abandon the consumer welfare standard or defend big tech and other monopolies. And that's a lie.
So I've taken it upon myself a sort of mission to remind lawmakers and enforcers that you can support the consumer welfare standard and fight against anti-competitive conduct, whether in big tech or anywhere else.
The consumer welfare standard doesn't mean the government loses. Just like it doesn’t mean that only price matters. The consumer welfare standard is about adhering to objective criteria that, one, find a basis is statutory text, and two, are appropriate for judicial decision-making.
Evaluating the competitive effects of conduct or of mergers on the basis of principles, other than consumer welfare, would result inevitably on elected judges imposing their own political values and other biases on private businesses. And we don't want that. Because that's not going to promote competition. That results in lawlessness.
The consumer welfare standard reflects a principled approach to the application of the antitrust laws and that guards against inappropriately expanding antitrust law's reach to get a behavior better addressed through public regulation and private action.
So there are all these reasons why I'm so glad that The Antitrust Paradox is back out in print. I see that behind Robert, to his right, there is a copy of the old version. And that one has become almost impossible to find. Isn't that it?
Robert Bork, Jr.: That's the third -- that's the second edition, 1993. This is the 1978. And if you have $1,000 you can probably buy this one.
Dean Reuter: The republication is, itself, sort of a good lesson in scarcity and increasing into the abundance of copies of The Antitrust Paradox available. Because it's been out of print, it is online available for $800 to $1,000. But now, thanks to the work of Bob Bork, It's available.
Robert Bork, Jr.: $39.99 at Barnes and Noble.
Dean Reuter: There you go, perfect. Well, Senator Lee, I'm advised, and I hope you've been told this, that you're now available until 12:40 because the vote schedule's been changed. So we're going to take a little more advantage of having you here.
You mentioned the objective criteria of the consumer welfare standard. I'm curious, and it has, of course, a long jurisprudence. I think when it came out, over 40 years ago now, the consumer welfare standard might have been thought of as a bit revolutionary. But it's got this long history of jurisprudence now. It does have objective standards.
When we talk about hipster antitrust or biggest bad, $100 million is an objective standard. But it also seems to be pretty cramped. Does the rest of hipster antitrust come with standards? One of the criticisms that I've heard is it's, and Bob sort of eluded to this, it's about everything. It's about social justice. It's about labor. It's about environmental justice. And therefore, it's about nothing, or maybe even more importantly, it's about whatever any particular enforcement agency or judge wants it to be. Can you respond to that?
Sen. Mike Lee: It's long been said that if everything is an emergency, then nothing is. If everyone is family, then no one is. And if antitrust law is about everything, then it is ultimately about nothing. And that's -- it's one of the reasons why we need the consumer welfare standard. Because when we have it, it allows us to harmonize how it works. It's important that we have access to a system of laws where there's a fair and just administration, in what the law calls, and I think that's really important.
So yeah, I'm very critical of hipster antitrust enforcement, for that and many other reasons, because it becomes about everything. And the minute you make it about everything, you make it about, literally, nothing.
Dean Reuter: Great. You mentioned the word harmonize. I'm going to use it in a slightly different way and that is the -- one thing that's puzzled me is how businesses succeed in the United States sometimes, where you have antitrust enforcement at the state level by state A.G.s. Then you have antitrust enforcement at the federal level, sometimes by the Department of Justice, sometimes by the FTC, maybe by the FCC, if you're a telecom company. And then you might face antitrust scrutiny at the international level, if you're an international or global business.
And I get the impression that, all the while, the world is watching us. They look to us and our government as a leader in antitrust enforcement. Maybe you could -- could you address that sort of swirling set of issues on harmonization of antitrust here in the United States, and maybe internationally?
Sen. Mike Lee: Yeah, it's a legitimate question. It's a very important topic, especially for those of us who are dedicated Federalists.
On the one hand, we've got to have the consistency from state to state throughout the country and how the law's applied. Where consistency and where a national approach is appropriate and workable. On the other hand, each state also needs to have discretion to apply its own law as it deems appropriate.
The potential for conflict is obvious, given the fact that we live in a country in which there are a lot of businesses that engage in commercial activity in all 50 states. And the number of business that at least do business in many states. There are some who try to erode Federalism with this concept, by saying that, well we've got such a national economy today, and suggest incorrectly, I think, that that somehow differentiates us from 1787 or 1789 America. It doesn't.
Interstate commerce was a thing back then. There were people who regularly engaged in interstate and foreign commerce. Now that doesn't meaningfully distinguish us from them. But obviously this would be -- I think the areas for conflict and uncertainty as to where a state law governed and federal law governed would be less of a problem if we had a more rational understanding of the commerce clause.
If the courts didn't take such an unreasonably expansive view of the commerce clause as the Supreme Court has taken, unfortunately since April 12th, 1937, it would be a lot easier to support something like federal preemption for antitrust cases. That's much harder to do when the federal government has routinely applied the antitrust laws to businesses that are largely, or in some cases entirely, intrastate.
This, by the way, is an interesting feature of the 1922 decision rendered by the Supreme Court that Oliver Wendell Holmes opinion. It was based on an unbelievably ridiculous interpretation of the commerce clause. Now, even by my standards, and I'm one who tends to view the commerce clause much more narrowly than many others, but Holmes just butchered it. Even for 1922 purposes, he butchered it.
Anyway, then on the international front, there's a similar concern that we have to deal with. Where we want to make sure that American companies that do business overseas are able to proceed with the reasonable hope and expectation that there'll be a largely consistent application of the law across domestic and international markets.
But at the same time, I don't think we should allow foreign competition law to trump the interest of American consumers and of the American economy. Especially where foreign competition authorities often adopt laws and policies that veer more towards a big is bad approach. We should be very reticent to follow suit. Our laws are about protecting competition, not competitors. Our peer nations sometimes make it about protecting competitors and not protecting competition.
Dean Reuter: Terrific. I've got another question for you, Senator. And Bob, if you want to weigh in on any of these matters, feel free to speak up and interject. But I'm familiar with the CFIUS Project, the Committee on Foreign Investment in the United States. And I think it does a great job of policing exactly what it says, really, foreign investment in the United States, where there are national security implications.
One thing that we don't seem to take account of in this country, when it comes to antitrust enforcement, is possible national security implications. I don't know if the Department of Justice Antitrust Division has an apparatus for that. I know that the Federal Trade Commission explicitly does not.
And in this increasingly complicated world we're talking about, there are a lot of technology companies that, if they get battered by antitrust enforcement, might have national security implications. It's not always obvious, if you're going after a technology company, the way it might be if you're going after Boeing that national security could be implicated.
First of all, do you agree that that might be an issue? And secondly, is there a way to address that so that, even regulations, but especially enforcement against American technology companies by American agencies would take into account possible national security implications?
Sen. Mike Lee: Yeah. So to be honest, I'm not as worried here. For one thing, I'm already quite nervous about tech companies working closely with our national security apparatus. It's those kinds of arrangements that have sometimes been a little disastrous, you might say, for Americans. Privacy rights, for example. Using the catch-all of national security as an excuse for questionable behavior is what got us into disasters, like Iraq and Prism. And it's what has led to tremendous horrific abuses of laws like the Foreign Intelligence Surveillance Act.
For another, in the absence of government guidance as to what we see as big tech companies voluntarily aiding and doing business with, for example, the Chinese Communist Party, I'm more concerned that tech companies may end up helping our enemies than I am, necessarily, about the antitrust laws and how they might prevent them from helping us.
And finally, I think that we should try to have faith in, both, competition generally and in American ingenuity, specifically. I'm confident that the American business community that innovators, including and especially in the tech sector, have the creativity and the talent to achieve excellence without engaging in predatory or exclusionary conduct toward competitors. And so I think we have to resist somewhat actively and consciously that kind of siren call.
Channeling my inner Ben Franklin here, just as I'm channeling my inner Judge Bork, and saying that I'm quite wary of trading freedom for security.
Robert Bork, Jr.: I have a question for the Senator, if it's okay?
Dean Reuter: Go right ahead, Bob.
Robert Bork, Jr.: I would like to hear a little bit more about your One Agency proposal.
Sen. Mike Lee: Yeah. I'm so glad you asked about my One Agency Act. I've long found it perplexing that we have what I regard as the best antitrust laws, the best competition laws in the world in the United States. It's far from perfect. And we've certainly had more than our fair share of mistakes in implementing and enforcing them. But for the most part, our body of laws in this area are good.
But we've done ourselves a grave disservice by putting the authority to enforce our antitrust laws in two different agencies. And we're not just talking here about something that could be dismissed as two divisions of the same department. We've got two completely different bodies, only one of which Department of Justice is headed by people, up to and including the Attorney General of the United States who serve at the pleasure of the President, and therefore, face accountability to someone who is elected at any given moment.
We've got the Department of Justice where there is some of that accountability. And then we've got the Federal Trade Commission that, despite the many qualities and the abilities and the talents that can be found in that body, is not, itself, accountable to the President. Now, this was a feature not a bug from the standpoint of those who designed it. But I think it has led to some problems.
But most notably, it's led to problems that are inherent in any two-headed monster. Look, the Catholic Church would never survive if it had two popes serving simultaneously. It would not work. The President of the United States would be an absolute disaster, the presidency, if we had two presidents serving simultaneously. Why on earth we would ever choose to set up a system in which we've got two antitrust enforcement agencies that are not even tethered to the same leadership chain is beyond my ability to understand. Especially where it leads to the development of different standards when it comes to getting, for example, a preliminary injunction.
We've got to harmonize these. And the only way we can harmonize them is by bringing them under one roof. That's what the One Agency Act does. I look forward to the day when we can pass that.
Robert Bork, Jr.: Dean, there's couple of questions.
Dean Reuter: Yeah. Here's a question that sort of goes to state granted monopolies. Think North Carolina Dental. It seems like the monopolies that last the longest and do the most harm to consumers are those that are granted by state licensing boards. Do you want to respond to that?
Sen. Mike Lee: Sure. Yeah, this is an issue whenever you've got the blessing of a state in order to run a monopoly that has serious potential for abuse. And I'm elated that, you know, a few years ago, the Supreme Court recognized that, especially where those licensing boards at a state level while imbued with state authority and with the power and the authority of a state, you shouldn't necessarily treat it as if it were a neutral state entity when you know that it's not. When it's run by market incumbents who have a vested interest in excluding competition. And so I think NC Dental will prove over time to just be the very beginning of a series of development that will lead to more robust competition.
Now, look, getting back to something we talked about earlier, consolidation of market power, even status as a monopoly, is not always a bad thing. It's not always unlawful, is a better way of saying it. There are circumstances in the law, in which for one reason, in which for one reason or another, it might make sense.
And in fact, in the context of our intellectual property laws and going back hundreds of years. Going all the way back to the Statute of Anne, long before we were a country, the whole point of going back to our intellectual property laws has been to establish a type of monopoly. Normally a limited duration, limited purpose monopoly, but a monopoly for the purpose of encouraging people to develop technologies, to develop their own intellectual property of one sort or another with the understanding that they'll be able to reap through the rewards for a certain period of time, and for a certain specified set of purposes.
But it's much harder to defend the state-established monopolies, the state established cartels, particularly the NC Dental type of paradigm, where literally, you are just protecting competitors and you're protecting them from competition. There's no competitive impact where the only purpose of something is not to incentivize somebody to get into a business. You reach a point at which the public safety justification can't really be defended and where you really are just protecting competitors.
Dean Reuter: Yeah, it looks like we've got you for another couple minutes. Let me ask you a final question. You've been very generous with your time. See if you're willing to maybe venture a prediction, and that's with regard to legislation going forward to amend the antitrust statutes. What's your prediction there? I guess for the Democrats to move anything forward, they'd need to garner support from maybe 10 Republicans. Any thoughts there?
Sen. Mike Lee: Nothing that I've seen filed right now jumps out at me as a significant major overhaul of antitrust laws that I can see getting anywhere close to 60 votes passing right now. That does not mean that nothing will arise.
I'm going through legislation that Senator Klobuchar has filed. I'm preparing my own legislation that I want to introduce that would revise antitrust laws. And we hope, once that happens, to figure out where there are ways that we can bring 60 votes together for something. It's very difficult to predict the likelihood of that right now because we haven't yet identified the areas where we definitely disagree and the areas where we definitely agree.
Dean Reuter: Terrific. Well Senator, as I said, you've been very generous with your time. I appreciate you joining us today. This is a significant moment, the relaunch of The Antitrust Paradox, but not the final moment, of course. The Federalist Society's going to do a lot of in-person programming. We predict the world will return to normal and hopefully you can participate in one or more conferences going forward. Thank you Senator.
Sen. Mike Lee: Thank you very much.
Robert Bork, Jr.: Thank you Senator.
Dean Reuter: Let me just say to our audience, we're going to carry on with Bob Bork and continue to answer some of your questions, if we can.
Bob, just generally speaking, quick reactions to anything the Senator said?
Robert Bork, Jr.: Well, I thought he was right on the money about the importance of the consumer welfare standard, of course. And I think his proposal on the One Agency, which someone asked which agency in the questions, I think it was pretty clear. He thinks the Antitrust Division of the Department of Justice should be the prevailing agency in enforcing antitrust law.
I see no reason why that proposal shouldn't pass, except for people may have staked out positions on it or feel the FTC, with the additional of Lina Khan and others, should have more enforcement authority.
But having said all that, I do think it's good that Senator Lee is there bringing some balance and some common sense to antitrust enforcement and laws right now.
Dean Reuter: So let me ask you, maybe just channel your father if you could momentarily, a difficult thing for any son to do. I'm particularly interested, and I addressed at least one question to Senator Lee about this, about the role of antitrust with technology in particular. My question to him focused on big tech. But not so much necessarily big tech, but just technology generally and antitrust enforcement by the federal government.
There have been several instances where there have been antitrust enforcement actions contemplated or executed and the target has quickly been overcome by a competitor. And this seems unique to the technology sector, or especially acute in the technology sector where, you can see somebody with a dominant position, where it was MySpace, or Nokia when it comes to cell phones, Nokia or Blackberry. And investigations begin. I think in the case of MySpace, there was even a settlement agreement that's still in place. And before things can be concluded or wrapped up, the target entities overcome and displaced by technological innovation. Do you want to react to that?
Robert Bork, Jr.: Well, generally speaking, what we've seen over the decades is that the companies really cannot hang on to their advantage forever. Somebody else will come up with a better mousetrap, a digital mousetrap or something that'll be better. A different or better algorithm.
And I think with the advent of block chain and artificial intelligence having more sway in these marketplaces, I'm not sure that we're not going to see more and better competition. I am sure that we're going to see more and better competition in the digital and technological space.
Dean Reuter: And then there's a second level criticism of the technology sector that I might have a little bit more sympathy for that I haven't given a lot of thought to. And that's the nascent technology or nascent acquisition argument. And that is that some of the technologies get so large they buy up startups that look like they might be successful. And they either develop them and launch them, which is, I suppose, good for consumers. Or they quash them because they're potential competitors. Have you thought much through that process?
Robert Bork, Jr.: A little bit. I mean, it strikes me that many of these companies, smaller companies, that come up with the better mousetrap, or different idea, or different approach find themselves doing so, benefitting from the venture capital qualities of the bigger companies. They are encouraged to come up with these new ideas and grow. And then if they feel it's to their best advantage to sell to a bigger company, then so be it. It's a free market.
To have the government come in and say, you can't buy another company which isn't really a competitor, or maybe it is a competitor but has a good idea that you want to incorporate and give more capital to and benefit, then I don't really have a big problem with that. More importantly, I don't think Judge Bork would have a big problem with that.
Dean Reuter: Yeah, and what about when a big company buys up a startup that they see as a competitor and don't bring anything new or innovative to market? Is that a problem?
Robert Bork, Jr.: Give me an example.
Dean Reuter: Well, I suppose I'm not necessarily in a position to give you an example because the ultimate innovation didn't take place. The company didn't come into being. The startup never thrived because it was bought. So maybe it's a hypothetical.
Robert Bork, Jr.: Well, it's hard to really answer it.
Dean Reuter: Sure. Fair enough. Let me move to some more audience questions. Is there a better mousetrap in the arena of social media? This might overlap The Antitrust Paradox and Slouching Towards Gomorrah in this part of the question. In social media, a better mousetrap. It seems that better, in the context of social media, just means more addicting and likely harmful to children. So do you know of anything happening in the social media area that might ultimately be competitors to the existing regime? And is that a good thing, a bad thing?
Robert Bork, Jr.: I think there's nothing that more free speech can't fix. And I'm loathe to limit speech. I can see, looking at -- you know my dad actually, famously, was very critical of some forms of speech in his book, Slouching Towards Gomorrah. He actually, I think, proposed censorship. Saying the only speech that was protected was political speech.
And I think, he's not here to defend himself, but I think I would argue the other side of that. I hope I don't get struck down by anything. So I would say that there are solutions to what big tech companies are doing in speech and upsetting conservatives a lot. There's solutions other than busting them up. I'm not sure that using the antitrust laws for that is really the best solution. Something a little bit more focused. Rifle shots instead of blunderbusses might be a good thing.
Dean Reuter: Great. We no longer have Senator Lee with us, if you joined late. We have recorded this program so it will be posted.
Do you want to say anything about vertical versus horizontal integration, Bob? That seems to be in the weeds, as far as I'm concerned, but there's a couple of questions in the chat about that.
Robert Bork, Jr.: Well, my father was famously for the proposition that vertical merges were not anticompetitive and therefore should really not be blocked. And he was perfectly willing to look at horizontal merger as possibly harmful. I don't see any reason to change that view.
I think in the book, if you read the book and I suggest that you do read the book, then you'll find his analysis of that in there.
Dean Reuter: Great. Again, the title of the book, for those of you who don't know, is The Antitrust Paradox. It is everywhere, available everywhere. A little bit further -- there you go. Now you're there.
Here's a question that I haven't read entirely, but it mentions major league baseball. What do you think of weaponizing antitrust as a tool to punish political opponents? Example, stripping major league baseball of it's centuries long antitrust exemption, not out of animus to antitrust exemptions or immunities, per se, but as way of punishing it for pulling out of the Allstar game in Atlanta, after Georgia enacted voting laws?
Robert Bork, Jr.: I'm against weaponizing antitrust for any purpose. And you know, as much as I think major league baseball was foolish in its activity, meaning Georgia pulling out of the Allstar game, I don't see using the antitrust laws to punish them for that. I think the marketplace will punish them for that.
Dean Reuter: Yeah. Yeah. Well, according to some news that I'm reading, it has, I suppose. That the popularity of, not just major league baseball, but the NBA and the NFL for some other maybe social activities or blunders, statements being made, they're suffering in terms of their popularity.
I'm interested if you've thought much about international harmonization of antitrust. Not that there would be some overarching committee or plan to harmonize antitrust. But we've talked about weaponization. And there has been criticism about other companies weaponizing their antitrust.
Robert Bork, Jr.: Other countries weaponizing?
Dean Reuter: Yeah. Yeah. Weaponizing their antitrust regimes in order to batter U.S. companies trying to do business there. Do you have strong views on that? Any views on that? Anything you want to add to that sort of discussion?
Robert Bork, Jr.: Other than to say that it's a bad idea, not much. I'll have you look at the growth in U.S. GDP and Europe's GDP over the last 40 years. And with the advent of the consumer welfare standard, our growth, our productivity, out innovation has dwarfed, and our job growth has dwarfed Europe. I don't think the use of draconian antitrust measures in Europe serves them well. It strikes me as more of an effort to punish companies for doing well than it should be.
Dean Reuter: I wonder if our antitrust laws -- or maybe not the laws, but the enforcement, if they're fit for the global world today. And this is maybe a slightly different way of asking this question and spinning the globe to the other side. And that is countries that have wholly owned businesses, basically. They're state run. They're subsidized heavily because they're state run. And our law, U.S. laws, don't necessarily take that into account. It seems to me when analyzing antitrust, or even trade for that matter.
It's sort of the same way we, maybe for good reason, kneecap some of our American businesses when it comes to following local culture in taking gratuities or bribes under the Foreign Corrupt Practices Act. Do you have any great insights or any thinking on that set of issues? I mean, that's some really complicated --
Robert Bork, Jr.: This is the part of my legal education at the dinner table that I think I missed. I may have been absent that day. So I don't have a great insight into that. It does strike me that I did some time working at the U.S. Trade Representatives Office and I'm very aware that companies in countries use their economies to punish or compete with American businesses. And I think that's some of their solutions for that. But they're on the trade side, not on the antitrust side.
Dean Reuter: Right.
Robert Bork, Jr.: But I'm happy to be corrected on that.
Dean Reuter: Here's a fairly long question, but it gets to the dichotomy between the Chicago school approach, Judge Bork's approach, and the Brandeisian approach, and to get to the nut of the question, and this again is sort of in the weeds so I'm not sure you're going to have an answer here. Is there room for some compromise between these two schools on issues like, how long to tolerate monopoly rents while waiting for market entry. Is there a way to synthesize the Brandeis and Borkian views?
Robert Bork, Jr.: Not that I know of. I'm happy to hear a suggestion on how that would be done. Are you going to put a limit on it? Like a patent? You have 17 years, or 10 years, or 20 years to establish yourself in the marketplace, after which we punish you by not allowing you to merge with any company or -- it strikes me as horribly arbitrary. But I'm happy to engage in a discussion about it with somebody who knows more than I do.
Dean Reuter: Yeah, and the following question comes from a later joiner. It's a question I think I asked Senator Lee, so I'll ask you as well, about the goals of hipster antitrust, or biggest bad antitrust, which I don't think has been -- correct me if I'm wrong, but I don't think they've really been set out with any exactitude. They seem to be sort of amorphous about the social justice and environmental justice and making the world a better place. Do you want to respond to that critique? Is that accurate? And what's your view of that as a substitute?
Robert Bork, Jr.: Well, I don’t see much in these other proposals, other than what makes us feel good. And, you know, I don't see much economic analysis. I don't see any look at competition or efficiencies. All I see is a desire to remake the world somehow a better place using the antitrust laws, for which they were not designed. Any of the ideas that they want to put forward in other legislative proposals, I think Congress would be happy to consider, and I'd love to look at them. But saying that antitrust covers all of that, or should cover all of that, questions of equity or other things, just strikes me as an attempt to use the muscle of antitrust to get other social goals and that's not what it was designed for.
Dean Reuter: Well, we're about out of time. I want to leave some time for you to express some final thought or wrap up. Let me see if there were any final questions here. I think we've run the table on these questions. Are you able to see the questions, too, Bob?
Robert Bork, Jr.: Yes, I am. But it's hard for me to focus on them without looking away. And then I'm not paying attention to you.
Dean Reuter: Yeah, yeah, yeah. Well, it's more important to pay attention to me. But I'm having the same issue. So let me come back to you and give you a couple minutes to express any final thoughts or wrap up. Again we're talking about The Antitrust Paradox, republished now, available at a reasonable price. Supply has increased dramatically. Prices have dropped. The new edition comes with an introduction by Senator Mike Lee, who was our guest earlier.
Robert Bork, Jr.: And a forward by me.
Dean Reuter: And a forward by Bob Bork. All well done, I can assure you, I've seen all of this.
Robert Bork, Jr.: Oh look at that. That was pretty good.
Dean Reuter: So Bob, final thoughts before we adjourn.
Robert Bork, Jr.: Well, I think we've covered the waterfront pretty well here. All I would say is, I brought this book back into print, it was great effort. And with the help of so many people, like John Shu and others to get it in shape, to clean up some of the legal citations that needed to be cleaned up, to fix the index, and do all of the other stuff, and got Mike to write a fabulous introduction, all because this issue of antitrust is under attack.
The consumer welfare standard is under attack by people who have other motives, other than efficient functioning of business and the economy. They want to use it for something else. So I brought the book back because I want people to see -- to be able to read, and analyze, and think for themselves about the regime that came out of this book, the consumer welfare standard. And I urge people to read it, and now at a reasonable price. And I'm going to spread it around the country and send it to law schools. And I really hope that it has an impact in this debate. Because we seem to be rethinking, after 40 years, what antitrust law is supposed to be.
And thank you Dean, and The Federalist Society, for hosting this.
Dean Reuter: Of course. Happy to do it. And as I mentioned to Senator Mike Lee, this is not our last opportunity to revisit the publication of The Antitrust Paradox. We'll be doing a lot more program on this throughout the country.
So thank you, Bob Bork, for joining us and in his absence, I'll thank again Senator Mike Lee for joining us. I think this has been a terrific discussion. Congratulations to Bob Bork on the republication. I do think this is vastly important. I hope people are able to find their way to purchasing a copy of the book The Antitrust Paradox.
To our listeners, thank you for joining us today, or viewers I suppose. And thanks for your thoughtful questions. Reminder to check your emails for notices of upcoming Federalist Society programming. Check in with our website. But until our next event, we are adjourned. Thank you very much everyone.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.