Читать книгу The Antitrust Religion - Edwin S. Rockefeller - Страница 14

The antitrust community invents sinister-sounding terms for natural phenomena and enjoys a feeling of self-righteousness in protecting the public from those evils. The antitrust process is said to be a “complex” one “by which the policymaker must select among competing policy values.’’¹⁹ That makes policymakers of all those making antitrust decisions. An important part of the process is affixing to freely-arrived-at contracts between consenting adults labels that imply the use of force when none is involved. That is done by the use of misleading metaphors, such as “market power,” “market control,” and “market dominance.” A firm that made 40 percent of the sales in some past period is said to “control” 40 percent of the market. A firm that sold more of something than any other seller is said to “dominate” the market. But control or dominance results from offering for sale something that people want to buy. People can’t be forced to buy. There is no force involved. No one is controlled or dominated. In some cases the supposed antitrust victim is not the party supposedly controlled or dominated but might like to be— someone who may have been deprived of an opportunity to sell. For instance, as in “reciprocity” (I won’t sell to you unless you buy from me) or “exclusive dealing” (I won’t sell to you if you buy from anyone else). In other cases such as “tying” contracts (if you want to buy my machine, promise to buy my salt or ink or punch cards that go in it), the supposedly injured party may not have the machines to sell. In cases of “predatory pricing” (selling at prices lower than those at which competitors wish to sell) or “predatory buying or predatory bidding” (buying at prices higher than those at which competitors wish to buy), nothing predatory is occurring. People are simply making freely-arrived-at contracts of purchase and sale.

The multiple goals of antitrust provide psychic income to all parti-cipants by applying sinister-sounding labels to natural business activities. No matter whom antitrust community members are repre-senting, they can feel that they are serving the public interest. on one side of the argument, lawyers are defending economic efficiency and consequent consumer welfare. on the other side of the argument, lawyers are defending the right of the little man to fundamental fairness, protecting him from being controlled, dominated, or excluded by forceful and predatory behavior. on either side, antitrust lawyers can feel that they are doing the right thing for others while doing well for themselves.

During the past 50 years antitrust lawyers, like most lawyers generally, have made a transition. Most formerly independent pro-fessionals chosen by clients for objective judgment, knowledge, and integrity have had to become self-promoting participants in institutional commercial operations sustained by expensive advertising and active business solicitation. In the early years, programs of the ABA section of antitrust law identified speakers only by their individual names; law firm names were never printed in the program. That has changed. Lawyers no longer practice law under their own names but under an established institutional trade name. No name is complete without an institutional affiliation. Some combine both law firm and academic connections, using one or the other as best suited for the occasion. For most, practicing law means serving as replaceable cogs in huge wheels grinding on at high hourly rates churning out memos, reports, briefs, and depositions for clients of “the firm.” A few of the more independent-minded have become buccaneers who invent a class of supposed victims, elbow their way to the head of a parade of others doing the same, and then shake down defendants for huge settlements resulting in little, if any, benefit to the purported “clients” but handsome fees for the lawyers.

That transition may have been especially pronounced and visible in the antitrust community, but to make up for it, there are also special compensations beyond the money for antitrust lawyers. Litigating can be equally strenuous in any specialty, but it is less intellectually demanding to be an antitrust adviser than to be a tax lawyer. Tax lawyers can make mistakes. Since there is so little predictability in antitrust law, one can seldom appear to have been wrong. It is difficult to be an incompetent antitrust lawyer. Almost any minimally trained attorney can do the work; the challenge is to get business. Class-action lawyers create their own clients. Large law firms hang onto clients inherited or recruited across different lines of specialization under one tent. Risks of failure and personal responsibility are minimized.

one of the most satisfying compensations of being a member of the antitrust community is the feeling of camaraderie that comes with sharing a special language and being a member of a club not open to the general public. The community shares a desire to pass that camaraderie on to future generations. As one chairman of the antitrust section has stated, “While many organizations function principally for the benefit of their members, the Section has always recognized a broader mission.”²⁰ The section’s mission statement includes, among other things, “Making known to a diverse group of law students and young lawyers the opportunities for satisfying and rewarding careers in the practice of antitrust law, and encouraging them to consider pursuing such opportunities.” one chairman of the section has referred to “spreading the antitrust gospel.”²¹ It is difficult to imagine an organization of tax lawyers talking that way.

Spreading the gospel is not confined to the continental united States. In somewhat the same pattern as the attorney general’s National Committee to Study the Antitrust Laws during the Eisenhower administration, an International Competition Policy Advisory Committee created during the Clinton administration published a weighty report and served as a springboard for members of the U.S. antitrust community to advance their careers doing missionary work abroad.²² An International Competition Network has been organized. Its fifth annual conference, held in Cape Town, South Africa, in May 2006, was reported to have attracted “nearly 300 representatives from about 70 antitrust agencies.”²³ The fourth annual conference, held in Bonn, Germany, in June 2005, was attended by “more than 400 representatives of 80 competition agencies and competition experts from international organizations and the legal, business, consumer, and academic communities.”²⁴

In support of proposed appropriations for fiscal year 2007, the FTC chairperson asserted that her commission “plays a leading role in key multilateral fora” (sic) promoting “cooperation and convergence toward best practices with competition and consumer protection agencies around the world.’’²⁵ Participation in activities of this sort provides members of the antitrust community opportunities for foreign travel, for business development, and for reinforced feelings of self-righteous satisfaction with “spreading the antitrust gospel.”²⁶