25 Comments
May 3, 2023Liked by Matt Stoller, Todd Mentch

Valuable to do first hand reconnaissance. My journalist wife, Libby Lewis, has sat through innumerable bankruptcy court hearings and witnessed exactly the same phenomena described here by Mr Stoller in cases in which the judges entirely discount the public interest and seem to view their jobs as requiring them to rule in favor of whatever is going to being the maximal economic benefit to the private interests before them regardless of broader social costs including economic concentration. It's astonishing until you begin to deconstruct it in the way Matt has here which is to look at who selects them and their backgrounds - almost always- as corporate lawyers for the largest private businesses before they become judges and before that their education at one of a handful of elite law schools. The whole system has become self perpetuating and rotten on the sense that UK was once governed by a Parliament selected from rotten boroughs. Judicial gerrymandering. Not representative government.

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founding

Matt, thanks as always for a very illuminating essay. Judge Reyes' decision will tell us a lot about another judge coming out of a large law firm. My question is why would a top lawyer leave a million dollar salary for a judgeship. I understand there may be compassion and humane considerations, but todays world is driven by money and power. Mergers lead to consolidation and market power. These deals involve enormous amounts of money with many individuals with their fingers in the pie, most of them attorneys. Without a judiciary supporting strong government intervention, continued consolidation will be a disaster for our economy.

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Good Point Dennis as to why anyone would take on a job that pay less? Only answer I can offer is to picking people that are "Trully decatied to serving "the People"- that has a higher calling or hold a higher purpose - or another way of saying, having a soul if you will to start with. To be one of the "Untouchables"

One, thing, as to when You Vote. or WHOM your voting for, Like the President of USA. Ask yourself, those that person have a good judge of "Other People" Charactures . For there is NOWAY one person can be on top of everything all the time over "all issues at hand. They have to be able to relie on other people- empolyees judgements of offices to be informed and or deal with those multi issues day in day out. LIKE PICKING JUDGES of the courts.

Great I think Biden is or having pressures as to having different color or cultures- people in offfices of POWER. BUT, I ask are they Qualify ? or trully the best choice for that position?

There was one Judge Biden picked, and Senator J. Kennedy question, Black women, No I am not bias. BUT, that person could not list one or say what was or is one Constitution Amendment, like one or five was! just replied, "Will if as a "Judge" I could just look it or that up. like she has been doing for the last ten years, as one other Judges Intern. OMG

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My understanding is that while in the past most lawyers regarded a Federal judgeship as the high point of their career and stayed on to retirement, today a number are quitting and taking an extremely lucrative post in a top law firm, adding prestige to corporate boards, etc. I've read that this seems to be more of a problem with conservative judges.

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founding

Growing up in the 50’s and 60’s there where many dedicated individuals for judgeships. The law was sacrosanct. Hard to find individuals today that care about truth and justice. I find the decisions of many judges today off the wall. The Supreme Court’s decision to overturn Roe was a tragedy based on personal religious ideological thoughts with no sound reason to take a woman’s rights to her personal freedoms away from her. When you have SC judges making decisions based on religious views they are usurping our constitution and what the founders thoughts meant. Any historian will tell you the founders wanted America to be a secular nation without religious interference. We need a government that regulates corporate power and protects individual freedoms and provide national healthcare. I fail to see any reason a judge, which is not, in most cases, an elected official has a right to make legislative decisions from the bench that will affect peoples lives. Our constitution is a living breathing document that was drafted with the ability to be amended to match changing history. No judge can drag us back to the dark ages!

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May 4, 2023Liked by Matt Stoller

Good observation about the increased isolation of the judicial and corporate elites from the 99%. Another side of the problem may be that once upon a time many judges and Supreme Court justices were former politicians--some very successful--keenly aware of public opinion and even used to rubbing shoulders with the hoi polloi. (Think Earl Warren, Governor of California and Vice Presidential candidate.) Hasn't been a single SC justice who's even run for office since Sandra Day O'Connor (former State Senator). Thanks for pointing out that most Federal judges today are former corporate lawyers from the largest law firms. I wouldn't be surprised to learn that most of them attended private colleges and the top-rated law schools, even though something like 80% of American college grads. attend public institutions. Of course, their defenders would argue that this just means that they're the Best and Brightest!

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Another example involves an old merger case, Baker Hughes, decided by Judge Clarence Thomas. It was governed by Section 7 of the Clayton Act which prohibits mergers the effect of which “may be substantially to lessen competition...." His opinion instead asked whether the merger, "will substantially lessen competition...". He literally changed the statute into one he liked better! And then found no violation of it.

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At the end, you ask the “why aren’t “ questions which are the crux of the matter. I can only think that the major political parties are only giving lip service to anti monopoly positions and are backing low impact anticompetitive cases. If they seriously went after monopolies they would quickly come into the crosshairs of the forces that actually run the country and even the world. And, even if it is not your intent Matt, you keep making that case.

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An yes Paul, who are the true puppet masters. That can bring the Jackels of the night upon you. or as one person praised to me, over ten years ago, as I try by one person at time, "To Educate and To inform". If I didnt watch out, I fine myself suicidally killed. Its, Just a theory tho...!

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So well written as to be so easily understood by those of us who don't often think about monopoly and how it is always bad for society. Thank you. In truth you have given us one more thing to be worried and disturbed about. Yet, I still thank you. The bear is outside, it is better to know that than not to know that.

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May 3, 2023Liked by Matt Stoller

Great summary of your experience. You draw some very compelling inferences about how and why the federal judicial system bends towards corporate interests, and how this distorts the enforcement of anti-trust law. Kudos for challenging Judge Easterbrook. I think you could have declared victory as soon as he “harumpffed” you.

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Incredibly ingenuous of judges to call business owners "smart people" and then also assume that what they're doing is good for anyone else besides themselves. Reminds me of this Planet Money episode where they talk about how neoliberal economists set up conferences for federal judges and by 1990 40% of federal judges had attended these retreats where they learned what they thought was just objective economic facts, rather than a specific neoliberal ideological worldview. "Econ's Brush with the Law" https://www.npr.org/transcripts/1124477182

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Thank you for your service in bringing these important issues to the light of day.

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Cannot thank you enough Matt, for everything you're doing. I'd grown so cynical but over the last year I'm really seeing your impact. I'd never really considered this area as the source of so many of our problems, but you have opened my eyes

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founding

Does anyone here know how I might learn how to research corporations for the purpose of whether they are owned by Private Equity. TY in advance.

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It is really helpful to read about the details of a specific case, thanks Matt. And it leaves me with a question about "all doubts must be resolved in favor of the government". It sounds like this would give the govt agency tremendous power, as all they have to do is raise a "doubt" and the case is decided. I totally agree this is not our problem now, but how do checks and balances work here? Or is it really the case that, if the law were enforced as written and decided, we'd just see massively fewer merger cases, because they're mostly hogwash?

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author

It's only when the government shows the merger is unlawful, that all doubts as to the *remedy* are resolved in favor of the government.

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founding

It’s not the patents. Pre-GATT (1995) patents were powerful anti-trust rights. Post eBay (2006) there is no licensing market or injunctive relief. The example of pharmaceuticals is more a function of how FDA approval works (& Bayh-Doyle success), then false assertions that novel, nonobvious disclosures for limited exclusivity some how equates with actual market power.

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founding

“The U.S. Patent System, the Coase Theorem, and the Era of Efficient Infringement”

https://ipwatchdog.com/2023/05/09/us-patent-system-coase-theorem-era-efficient-infringement/id=160724/

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While I agree patent abuse has gotten worse in the GATT/TRIPS era, I'm not sure why you would say patents "were powerful anti-trust rights" before then. Patent quality has been a perennial issue, and they've long been misused to form cartels-- e.g. Thurman Arnold, 1942: "The principal smoke screens under which domestic and international cartels have cloaked their activities are patent laws— which, like lost sheep, have gone astray... So far as the patent law is concerned, we need a legislative provision which prevents the owner of a patent from using it as an instrument of business policy to dominate industry and destroy independent enterprise." https://www.theatlantic.com/magazine/archive/1942/07/the-abuse-of-patents/654081/

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founding

“Patent quality”? That’s not a real issue, cite something from this century. In 1942, the US was just getting into WW2. After the War the US forced its leading innovators to license to former enemies. All of the world’s “National Champions” were not job creators: the US, with a first-to-invent system, grounded in Art 1 of the Constitution - the only time “Rights” are actually mentioned - is about “Labours of the Mind”. You should compare and contrast with trade secrecy for a better understanding of our current oligarchic system. It’s no surprise that having gutted the gold standard system, the large efficient infringers pushed for nationalizing trade secrets, coincidence? NFW. As an inventor, I find it curious why so many people think “implementers” & thieves should get preference over “innovators” & creatives. But, then again, the folks that changed the system are the few that control and dominate the system at a cost to all Americans and Society itself.

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This goes back to your last post Matt, I later which to write- suggest. Is to show clear history -pass persents which should be many as to how Mergers have failed the consumer, on quality, service and or pricing or all above.

Funny thing of knowing of pass issues, and NOTE Google, or googling, I was trying to fine where the Top Oil companies was brought into THE HOUSE energy committee. Now you pull up the Senate side, in fact I think Two committee hearing on that one. Going back to 2008 or so when Oil hit $147 a barrow. Where the "Narrative' was focus on "Its the Commodities Futures Fault- Speculators fault to the high prices of gasoline. So, push was to get rid of The Commodity future market. I stated and still statewould be a big mistake, being THEN Whom would control pricing?

Point, and to be shorter here, The House Side hearing, Had Rex Tillerson, CLEARY, stated that "They" USA Oil was closing down refineries and pipe lines. ONCE, the B>S> over one person report, that stated we was using 1% more oil then what was being, Able to be Produce in a day. Again BS to start with.

Then when that all was cleared, Oil went down to $35 a barrow. BUT we where still paying high prices for the gasoline. BEING, Oil companies, or their explanation was, even lower prices of Crude Oil, they just could not able to produce it to gasoline fast enough. Again, BS, for they was closing it down, The supply side.

BUT, see if you can fine that hearing? I couldnt as to googling it. But was able to fine multi clips on the other side, of agruement as just get rid of the speculator. like it or not the only midman to pricing of Oil. or any other commodities. - needs.

Point, hold hard copies of pass cases or examplies. As too showing how it will not work, IF we`re too hold on to a free world and or markets. Forces are out there, changing our pass, rewriting history, or not showing True facts but allowing disinformation stay or put in place.

And Matt , yes you did so here (wrote a good example) as to the above line.

and I like to state by no means, I am or "hope not" to be the smartist person in the room.

I learned a lot in the housing bust, BUT add, I learned I do not know all, by far more.

My Name is NoBody (1vs160)

P.S. Matt please keep at it, But stay safe by keeping as many as able informed.

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Maybe the solution is requiring that judges NOT be lawyers. Or perhaps term limits on judges with the only exception being maybe the Supremes.

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founding

Thanks for the summary on divestiture. Perhaps the judge was a tad dense in understanding the government's position, presumably because of her corporate groupthink, but I have to ask about the expertise of the government's attorneys. Perhaps the government is a bit sluggish on how to prosecute these merger cases, that they need more practice? Well at least we have an appeals court who will review the trial court's decision, although the same corporate groupthink will likely be present among those judges as well.

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