No images? Click here Welcome to The Corner. In this issue, we discuss our statement on Amazon’s and Google’s shutdown of Parler and whether Merrick Garland will be the scourge of private monopoly. Open Markets Statement on Amazon and Google’s Shutdown of Parler On Wednesday, Open Markets issued a statement demanding that Congress move immediately to protect American democracy by breaking the power of Amazon, Google, and Facebook, and by enacting clear public rules to govern online discourse. In the statement, Open Markets makes clear that during a political emergency such as Americans witnessed last week, it can be necessary to regulate some communications for a short time. But Open Markets also states that the American people must never allow a handful of corporate bosses who control essential communications infrastructure to dictate the boundaries of free speech.
To read the full statement - titled “To Protect Democracy, Lawmakers Must Fix Big Tech’s Socially Destructive Business Model” - click here.
Will Merrick Garland Be the Scourge of Private Monopoly? His Writings say “Yes.” Few members of the new Biden Administration will have a bigger chance than Merrick Garland to address America’s monopoly crisis. If he chooses, the president-elect’s nominee for Attorney General can begin the task of establishing a rule of law designed to address the most pressing - even existential - economic and political challenges of the 21st Century. Garland can, for instance, immediately toss out the pro-monopoly “consumer welfare” philosophy adopted by Reagan Administration almost 40 years ago, and restore the approach followed by Democrats from Woodrow Wilson through Jimmy Carter. He can also move to transform the Justice Department’s new antitrust case against Google into a full-scale effort to restructure the entire digital economy to all but eliminate the most dangerous powers of Google, Facebook, and Amazon. And he will have the opportunity to bring vanguard cases that demonstrate how antimonopoly law can improve the welfare of powerless workers, contractors, and small entrepreneurs. Garland’s antitrust record as a judge on the U.S. Court of Appeals for the District of Columbia Circuit is short, and has been described as “neither pro-plaintiff nor pro-defendant.” But there’s good reason to hope that Garland - who in 2016 was nominated by President Obama to serve on the Supreme Court, but was then not confirmed by the Senate - will prove to be the attorney general for this moment. Perhaps the simplest reason for hope is that the 68-year-old Garland completed his law studies before the revolution in antitrust thinking and enforcement launched by Ronald Reagan in 1981. Garland then taught antitrust at Harvard in the mid-1980s, at a time when the radical pro-monopoly thinking of professors Robert Bork and Richard Posner was still under being debated. Indeed, it was during this period that Garland published a powerful article in 1987, “Antitrust and State Action: Economic Efficiency and the Political Process.” In it, Garland strongly attacked efforts by scholars and judges including Bork, Posner, and Frank Easterbrook to apply certain efficiency arguments to the enforcement of competition law, including by individual states. In the article, Garland charges that their “efficiency test” essentially amounts to an “assault on democratic politics.” In his time on the circuit court, Garland had few opportunities to review antitrust cases, and his record is mixed. In 2001, he supported an anti-merger decision that stopped a three-to-two merger in baby food, in FTC v. H.J. Heinz. But in 1999 he joined a decision dismissing an essential facility claim, in Thomas v. Network Solutions. And he joined a series of denials of class certification in rail freight fuel litigation that raised the bar for certifying class actions and weakened private antitrust enforcement. But there should be no doubt that Garland understands the essential role democratic government must play in establishing the rules for competition among private parties. In a key passage in his 1987 paper, he wrote that the Supreme Court had made clear the need to “[prevent] the delegation to private parties of the power to restrain competition.” The essential goal must be to ensure that the state “retain[s] effective control over the regulation of its economy.” This is a view that clearly puts Garland on a collision course with the now clearly demonstrated power of Amazon, Google, Facebook, and other platform monopolists to regulate speech, not only of private actors, but of public officials. Open Markets Calls on DOJ to Block Google Takeover of Fitbit, and Condemns EU Decision Just before the holidays, Open Markets issued a statement urging the U.S. DOJ to join Australia in rejecting Google’s merger conditions and to block Google’s takeover of Fitbit. Among other reasons, we said the deal would allow Google to acquire sensitive health information and “to use that data to discriminate in the provision of health insurance and health care and in the marketing of a vast variety of related goods and services.” In the statement, Open Markets also condemned the decision by EU Competition Commissioner Margrethe Vestager to approve the takeover. 🔊 ANTI-MONOPOLY RISING:
📝 WHAT WE'VE BEEN UP TO:
We appreciate your readership. Please consider making a contribution to support the continued publication of this newsletter. 📈 VITAL STAT:$2.1 billionThe amount office retailer Staples offered to buy competitor Office Depot. This is the third time that executives have attempted to merge the two corporations. In 2016, the Federal Trade Commission blocked the last attempt, arguing the deal would reduce competition. 📚 WHAT WE'RE READING:
BARRY LYNN’S NEW BOOK
Liberty From All Masters The New American Autocracy vs. The Will of the People St. Martin’s Press has published Open Markets Executive Director Barry Lynn’s new book, Liberty from All Masters. Liberty is Lynn’s first book since 2010’s Cornered. In his new work, Lynn warns of the threat to liberty and democracy posed by Google, Amazon, and Facebook, because of their ability to manipulate the flows of information and business in America. Barry then details how Americans over the course of two centuries built a “System of Liberty,” and shows how we Americans can put this system to work again today. Lynn also offers a hopeful vision for how we can use anti-monopoly law to rebuild our society and our democracy from the ground up. Liberty from All Masters has already made waves for its empowering call to restore democracy by resurrecting forgotten tools and institutions. “Very few thinkers in recent years have done more to shift debate in Washington than Barry Lynn. In Liberty from All Masters, he proves himself as a lyrical theorist and a bold interpreter of history. This book is an elegant summoning of a forgotten tradition that can help the nation usher in a new freedom,” says Franklin Foer, author of World Without Mind and national correspondent for The Atlantic. You can order your copy of Lynn’s book here.
SALLY HUBBARD’S NEW BOOK
MONOPOLIES SUCK 7 Ways Big Corporations Rule Your Life and How to Take Back Control Simon & Schuster published Monopolies Suck by Sally Hubbard on Oct. 27. The book is the first by Hubbard, who is Open Markets’ director of enforcement strategy. Hubbard examines how modern monopolies rob Americans of a healthy food supply, the ability to care for the sick, and a habitable planet, because monopolies use business practices that deplete rather than generate. Monopolists also threaten fair elections, our free press, our privacy, and, ultimately, the American Dream, Hubbard shows. In Monopolies Suck, Hubbard reminds readers that antitrust enforcers already have the tools to dismantle corporate power and that decisive action must be taken before monopolies undermine our economy and democracy for generations to come. In Monopolies Suck, Sally provides an important new view of America’s monopoly crisis and of the political and economic harms of concentrated private power. Order your copy here. 🔎 TIPS? COMMENTS? SUGGESTIONS? We would love to hear from you—just reply to this e-mail and drop us a line. Give us your feedback, alert us to competition policy news, or let us know your favorite story from this issue. |