Before I begin, I hope everyone who celebrates had a lovely Christmas. Writing may slow down some through the new year. Though, lets me fair, this place is already kind of sporadic. But I hope to continue to keep to at least one new post a week in the new year. Now on with irritating judges and lawyers.
The Verge has a look at why Apple and Google won and lost their Epic anti-trust trials, respectively. As a quick refresher, game maker Epic sued both companies for their app store polices. Essentially, Epic argued that by forcing app makers to be approved and use their respective payment systems, they were acting in an illegal fashion. They were monopolies, essentially, and using their monopolies to extract rent from app makers.
Epic beat Google but lost to Apple, and the Verge wanted to know why.
There are a lot of good reasons, but I think they underplayed the main one: Apple’s case was heard by a judge and Google’s case was heard by a jury. Why does that matter so much? In large part because the judiciary has been corrupted by anti-trust money.
Now, I do not mean that the judge in question was bought and paid for. I have no reason at all to expect something as nefarious as that and would, indeed, be genuinely shocked to find it had occurred. No, the corruption happened long before through means that should be illegal but are welcomed by the judiciary itself.
Our anti-trust laws became much more amenable to monopolies in the early 1980s. This did not happen because Congress decided that the laws should change. Instead, it happened for two primary reasons: Robert Bork wrote an article that said anti-trust laws, despite their plain language, were not about competition, labor rights, and protecting society from the power of large economic consolidations. They were about consumer pricing and only consumer pricing. As long as you could plausibly argue that consumers would get lower prices, no other consideration should come into play. This idea made rich people happy, and the Reagan anti-trust division was subsequently ordered to adhere to Bork’s interpretation. Anti-trust was effectively dead.
However, to bury the body, supporters of Bork needed judicial help. It would do no good to have judges come along and apply the plain meaning of the Clayton Act. So, they set out to “educate” them. From 1976 until 1999, the Law and Economics Center at George Mason university began holding seminars where they extolled the virtues of Bork’s “interpretation” of anti-trust law, among other conservative economic doctrines. Since the Center was corporate backed, this should not be surprising. At their peak, it is estimated that 40% of judges attended. And they were effective — judges came back from those seminars willing to employ the conservative economic analysis not only to anti-trust but to other areas of the law as well. Research shows that such judges became not only more monopoly friendly, but also more opposed to the EPA and NLRB and handed down harsher sentences. They also influenced their peers into a more conservative bent.
And just so you are aware, the practice has not ended. The Center may have stopped that specific program, but others have taken its place. Want a nice vacation? Attend a corporate sponsored retreat to learn about their latest conservative legal theories. And play some golf or idle on the beach, etc. And if you don’t rule the way they like, maybe next year you don’t get to go. And while judges make good money by regular people standards, by the standards of senior law partners? Not so much.
These are obviously not seminars in any meaningful sense. You will not hear meaningful dissents from the line they wish to push. In my industry, vendors hold these kinds of conferences all the time, but no one pretends that they are anything other than sales pitches. And that is what has happened to the judiciary in our country — it has become overrun by sales conferences. And the effect, as noted above, is to entrench conservative doctrine, whether it is based in the law or not, in our courts.
So, what has this to do with the Apple and google trials? A lot.
The primary — though not the only — difference in the two trials was the definition of market. In the Apple trial, the judge decided that the relevant market was “digital mobile gaming transactions,” a market that Apple preferred and made them look the least bad. In the Google trial, the jury was left to decide the market and came away unimpressed by the idea that the Android app store was the same as XBox’s game store. They understood that digital transaction was overly broad (isn’t everything on the internet a digital transaction, after all?) and then applied the commonsense definition of monopoly, as Congress originally intended.
Now, I doubt that the judge in the Apple case deliberately thought to themselves “Aha! I know how to stymie the anti-trust case!” Though, actually, given how brazen the new consumer welfare standard is about ignoring the plain letter of the law, it is possible. But it is more likely that the judge, marinated in fifty years of corporate paid shilling, came to the monopoly friendly conclusion on their own.
But that just demonstrates how corrupt the system has become. For fifty years, we have allowed corporate entities, many with business before these very courts, to pay to send judges to elaborate seminars in vacation destinations to have a one-sided argument placed in front of them under the guise of education. No one at a vendor-sponsored conference pretends it is anything but about selling people on the vendor’s products. But these seminars certainly do, and judges apparently believe them. When asked about the original Goerge Mason seminars, most judges professed to be unaware of the funding, and they universally said that it would not affect their decisions.
That is unbelievable and I suspect no judge would accept such testimony in their court at face value. The idea that people are not influenced by sales pitches, especially sales pitches that are not presented as sales pitches, is belied by the entirety of human existence. I am sure companies do not spend billions on advertising each year out of the desire to keep roving bands of copywriters and graphic designers off the streets. Sales works, especially when you convince people that you aren’t actually pitching them. That we allow judges to pretend that they are not sitting through sales pitches and are being rewarded for ruling in a specific way is insane.
More than insane, it is corrupt.
That is what the Verge downplayed. We have had a well-funded, systematic sales machine aimed at judges and it was worked, warping our judiciary to the point where the plain language and intent of laws are easily discarded. Correcting that — making sure monied parties cannot sway the courts — would go a long way to correcting many of the injustices in world. Including the idea that monopiles are fine if someone, somewhere, thinks they got a better price from one once.
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