The Original Progressive View of Antitrust

Much of the popular discussion of the trust question has proceeded upon the assumption that trusts are the result of some sort of immoral conduct which should be made illegal. But the same facts which led to the grant of exclusive franchises (legal monopolies) in the case of local public utilities, have led also to a belief that many of the monopolies which have grown without formal legal grant may likewise be beneficial if subjected to proper public control. The courts in this country, as well as many economists who specialize on “trusts,” have long since come to the conclusion that the anti-trust laws, even if desirable, do not in all cases furnish a sufficient solution of the monopoly problem, and that accordingly governmental price-fixing may be a desirable supplement. But neither the courts nor the teachers of “trusts” seem fully to realize that the determination of a “fair price” is not a search for some objective fact, but that it involves the adoption of a policy; and that the policy cannot be adopted intelligently without a drastic revision of accepted economic theory as well as the accepted theory of private ownership; and that the officials charged with the formation of the policy must perforce resort to some theory as to the proper distribution of income and as to the channels into which industry should flow.

Robert Lee Hale, Economic Theory and the Statesman, in The Trend of Economics 189, 193 (Rexford Guy Tugwell, ed., 1924).

Commentators regard the [Alcoa] case as one of the most powerful statements in antitrust jurisprudence for the robust efforts to constrain dominant firms. Discussions of the case often place [eminent progressive jurist] Learned Hand at the center of attention and ascribe to Hand the views espoused in the court’s decision. Hand believed otherwise. He disliked the antitrust laws from his earliest days in public life. In a representative statement of his views, Hand wrote to a friend in 1914:

“I do not agree by any means that the Sherman Act is of value or that the progressive party should take its position against monopoly. . . . I have always suspected that there are monopolies possible which depend for their maintenance wholly upon economic efficiency and which it would be an economic blunder to destroy.”

. . .

In a separate memorandum [in the Alcoa case], Learned Hand noted: “There are two possible ways of dealing with [monopolies]: to regulate, or to forbid, them. Since we have no way of regulating them [because regulatory legislation has not been put into place], we forbid them. I don’t think much of that way, but I didn’t set it up; and now the ordinary run of our fellow-citizens — some, even of the ‘rugged individualists’ — regard the Sherman Act as the palladium of their liberties.”

Andrew I. Gavil et al., Antitrust Law in Perspective 475, 477 (3d ed. 2017).

When Kentucky Outlawed Profit, Holmes Overruled Kentucky

Section 198 of the Kentucky Constitution of 1891:

It shall be the duty of the General Assembly from time to time, as necessity may require, to enact such laws as may be necessary to prevent all trusts, pools, combinations or other organizations, from combining to depreciate below its real value any article, or to enhance the cost of any article above its real value.

The Constitution of the Commonwealth of Kentucky. Adopted September 28, 1891. Frankfort, Ky.: E. Polk Johnson, Public Printer and Binder. 1892.

Justice Oliver Wendell Holmes:

In our opinion it cannot stand.

International Harvester Co. of America v. Kentucky, 234 U.S. 216, 223 (1914).

Back to Atomic Laissez Faire

Lest we forget that deregulation was a project of the left, not just the right, here is Marxist legal historian Morton Horwitz in 1984:

Almost nothing in the antitrust debates supports what would soon become Theodore Roosevelt’s new conservative distinction between “good trusts” and “bad.” Roosevelt was operating under a newly emerging view that corporate concentration could be justified by economic efficiency-increasing returns to scale. Only corporations that achieved dominance through illicit means-financial manipulation or unfair competition-were “bad” trusts. By contrast, the old conservatives who passed the Sherman Act did not believe that the neoclassical economic law of diminishing returns had been repealed. [B]igness was per se bad. From their perspective, large-scale economic concentration was inherently illicit because, according to economic laws, there was no way corporations could legitimately achieve overwhelming economic dominance. Almost nothing in the Sherman Act debates suggests that economic concentration could be justified on efficiency grounds. That was for a later day.

. . .

The regulatory state, originally conceived as a means of checking corporate power, has gradually become discredited. In most cases deregulation now means that corporate power will simply be left unchecked. The original Progressive conception of the state as the means to our salvation must be fundamentally reconsidered. Without the sort of decentralized institutions that the old conservatives (and Progressives like Brandeis) supported, we seem destined to fluctuate between deregulation and its somewhat less overtly rapacious and more noble sounding sibling, regulation. Deregulation generally means unrestrained corporate control. Regulation frequently means more subtle, more disguised, and often more effective forms of corporate control.

Morton J. Horwitz, Progressive Legal Historiography, 63 Or. L. Rev. 679, 686 (1984).

Curiously, Horwitz’s position is today fast becoming the mainstream, bipartisan position on markets. Thus, to borrow Horwitz’s schema, we have come full circle, from the old conservative vision of antitrust-defended, laissez-faire markets of atomized sellers, to the new conservative/Progressive consensus on the importance of size, to the triumph of the Progressive accommodation with size in the form of New Deal rate regulation, to the triumph of the new conservative accommodation with size in the form of deregulation and Chicago School antitrust, to today’s gathering return to the old conservative rejection of size and embrace of an antitrust-defended atomized laissez faire. Ah me.

Bigness and Farce

The key point Brandeis missed, says McCraw, was that while in all fields tighter forms of combination were attempted, their potential success ultimately depended on the technological and managerial limitations and possibilities uniquely inherent in each particular industry. In some industries, large, tight combinations had tremendous potential; in others, they were bound to fail under the pressure of competition. Appalled by “bigness” and witnessing the failures among the trusts, Brandeis “too simply” inferred that bigness was inefficient as a general matter and failed to undertake a deeper, empirical investigation of the specific conditions
and developments in various particular industries. Positing a single
“bigness”-based explanatory model for problems throughout the economy as a whole led Brandeis into serious policy misjudgments because it “doomed to superficiality both his diagnosis and his prescription.”

James May, Antitrust Practice and Procedure In the Formative Era: The Constitutional and Conceptual Reach of State Antitrust Law, 1880-1918, 135 U. Pa. L. Rev. 495, 559 (1987).

Reversibility and Time

You cannot, it turns out, make more rock. Or even just melt it down, and then pour it into a mold to reshape it. Except volcanic glass. Other than that, the only rock we have is the rock we quarry. Unless we also have immense amounts of time. The eons (and pressure) required for molten rock to cool and form the crystals that characterize our granites.

If we cannot get our rocks — dumb, orderly, rocks! — back without time, tell me, why do you think we might get our life — complex, organic, perishable, life! — back without time?

Look closely at the bark of the Ginkgo and you will see that it is sterile. No ants run up it, and no mites live there, which is why cities, in search of trees that are immune to pests, love to plant Gingkos. The Gingko tree is no friend to life because it is a fossil, a perverse fern, in fact, that stopped evolving 200 million years ago, in an age before the dinosaurs. It survived by chance, sealed in some fold in the Chinese landscape, until it was brought forth and spread across a world of unfamiliar fauna by enthusiasts in the 19th and 20th centuries.

The creatures that grew up with the Ginkgo’s bark, and thought its stinking fruit perfume, are long dead. Today’s creatures grew up with other trees — the oak, the beech — and do not know what to do with a Ginkgo. What is missing is time. Give them a million years beside the tree, and they will adapt to it. But without time, that tree is as dead to them as concrete, plastic, or styrofoam.

The great obstacle to reversibility is time.

Begging Markets

In a world in which there were no government, firms would be forced by competition to do things that are bad for the world, that even the firms themselves realize are bad and do not really want to do, and our only hope for salvation would be that firms choose not to do those things, to suffer the punishment of the markets, to martyr themselves for society.

But of course there is a government, and government can put an end to whatever it wants. We do not need to rely on the good graces of the business world.

If you forget this — forget that there is a government — because you have worshiped so long at the altar of the free market, then you find yourself insisting on absurd things. Such as that CEOs ought, out of the goodness of their hearts, and with all the incentives pulling to the contrary, to start making socially just decisions:

Automating work is a choice, of course, one made harder by the demands of shareholders, but it is still a choice. And even if some degree of unemployment caused by automation is inevitable, these executives can choose how the gains from automation and A.I. are distributed, and whether to give the excess profits they reap as a result to workers, or hoard it for themselves and their shareholders.

Live by the market, despair by the market.

The Chinese Nile Part N+2

Big ideas flow to countries that think big:

TerraPower also suffered a setback in October when the Energy Department effectively killed any chance of building a demonstration reactor in China. The department announced measures to prevent “China’s illegal diversion” of U.S. civilian nuclear technology for military purposes.

Three years earlier, TerraPower had unveiled an agreement to establish a joint venture with China National Nuclear Corp. to build a pilot reactor. But the Energy Department, in a move that seemed aimed directly at TerraPower, said it would deny new license applications or extensions to existing authorizations related to the Chinese state-owned company.

If we were thinking bigger, we wouldn’t have to stop a deal like that by fiat. Gates wouldn’t need to go to the Chinese, because he would be getting more money over here.

Flying 20/20

Frank Lorenzo, head of Texas International Airlines:

[I]f the Aviation Act of 1975[, which deregulated the airlines,] goes into effect, we will, over a period of years, end up with a couple of very large airlines. There will be many small airlines that will start up here and there, but they will never amount to a very significant amount of the transportation market. The smaller certificated airlines like Texas International[, which was acquired in 1982 by Continental Airlines, which itself merged with United in 2010,] will shortly become history. The operating and financial advantages will go to the large carriers with substantial resources, and to very small carriers that temporarily have lower labor costs, primarily because they are non-unionized.

Quoted in Richard H.K. Vietor, Contrived Competition: Regulation and Deregulation in America 54 (1994).

In 1978, when Congress deregulated the airline industry, there were 10 airlines that provided scheduled national and international service, and those 10 accounted for 90 percent of the domestic marketplace. Today, [in 2016,] there are four major airlines and a few smaller ones providing comparable service, and the four major airlines provide 80 percent of U.S. domestic flights.

Paula W. Render, The Airlines Industry, Concentration and Allegations of Collusion, Competition Policy International (June 14, 2016).

Slouching toward Reregulation

There is one solution to the monopoly problem that is conspicuously absent from Noah Smith’s account of monopoly power debates at this year’s ASSA.

Smith rightly concludes that breaking up big firms is not a perfect solution to the monopoly problem. (He thinks, incorrectly, in my view, that breakup is too hard; the real reason not to break up big firms is that they are often more efficient than small ones.) And he rightly gives a list of alternatives to breaking big firms up, including unions, minimum wage laws, putting workers on corporate boards, and imposing tougher labor standards on large firms than small. But he doesn’t seem to see where all of these alternatives point.

Where do minimum wage laws and applying tougher labor standards to large firms point?

To rate regulation, of course. To that approach to governing the market that once — in the decades following World War Two — stretched from securities brokerage to railroads to telephones to airlines.

In a regulated industry, a government administrative agency dictates prices and performance standards to the privately-owned firms that compete in the market. Applying tougher labor standards to firms with monopoly power, a proposal that Smith attributes to Nick Hanauer, is a shade of the old rate regulation, which was often imposed on monopolized industries, such as telephone service, to restrain the power of large firms.

Minimum wage laws are themselves a form of blunt price regulation, blunt because they are imposed on a one-off basis by legislatures instead of by expert administrative agencies with authority to revise the prices dynamically in response to changing circumstances. And both unionization and putting workers on corporate boards are even blunter forms of rate regulation, in that they hope that by increasing the bargaining power of workers, workers will succeed at negotiating the higher wages and better working conditions that a regulator would be empowered to impose by fiat.

True, most of Smith’s proposals are aimed at softening the consequences of labor market monopsony, whereas rate regulation was generally aimed at softening the consequences of consumer market monopoly. But there’s no reason why the Department of Labor couldn’t apply the tenets of rate regulation to labor markets.

Rate regulation is the most developed form of intervention in markets, one that encompasses all the other forms, but also goes beyond them, so it’s the natural choice for achieving just market-level distributions of wealth where unregulated markets fail to do so. A rate regulator can unionize an industry if the regulator wishes, just as the ICC effectively cartelized long-haul railroads to stabilize their prices: the regulator simply insists on approving only a wage tariff that is uniform for all workers, effectively forcing workers to bargain collectively with their employers. But a rate regulator can do more than that, regulating market entry to strike a balance between job security and competitiveness, insisting that workers offer certain bundles of skills, and even imposing workplace safety and benefits standards.

Once we start to believe that markets are failing, and that just breaking up big firms won’t achieve distributively fair market outcomes, as economists seem to be concluding, the door is open to market intervention, and at that point it makes sense to use the best tool for the job. The one-off ad hockery of minimum wages won’t do. Nor will strengthening unions — if you make them strong enough to really succeed, you make them strong enough to oppress investors and consumers. What you need is a politically accountable agency empowered to make markets work for all market participants.

That’s what rate regulation was, and could be again. Let’s stride to it, not slouch.

Antitrust’s Messy Breakup Fallacy

In a market economy in which dominance often rests on intellectual property, rather than on an installed base of industrial equipment, breaking up a large firm is as easy as ordering compulsory licensing, and letting markets do the hard work of pulling the rest of the firm apart. Breaking up large firms isn’t hard — it’s easy.

Noah Smith repeats the old fallacy that breaking up big firms, or reversing consummated mergers, is difficult, putting the divider in the position of creating two new companies from scratch. He writes:

It would be great if big companies could simply be divided into the competing rivals that existed before a merger took place. But once two competitors join, they tend to merge their sales departments, their engineering departments, their management structure and almost every other facet of their business. Antitrust regulators can’t easily order the merged company to split itself back into its constituent parts, because those parts no longer really exist.

Noah Smith, Economists Get Serious About the Harm From Monopolies, January 11, 2019.

Economists should know better than to make this mistake, because it involves ignoring markets. To break a firm up, all you have to do is to seize and divide up the asset that is the source of the firm’s advantage over competitors — force the licensing of key intellectual property to a new entity, for example — and the market will take care of the rest of the breakup.

The owners of the pieces of the divided asset will access markets on their own to assemble their own sales departments, engineering departments, management structures, supply chains, and so on — often, but not necessarily, by hiring away staff from the original firm that is the target of the breakup. Antitrust enforcers don’t have to worry about getting their hands dirty figuring out whether Bonnie in sales should go to the new firm, or Mark in accounting should stay with the old one. So long as antitrust enforcers divide the valuable asset properly, to ensure that the new companies are both financially viable, markets will take care of the rest. Bonnie may get a job offer from the new firm, and Mark may choose to stay put.

This messy breakup fallacy got a lot of air time twenty years ago, when a district court ordered the breakup of Microsoft. But Microsoft actually presents an excellent example of why breaking up should be easy to do in a market economy such as our own. The heart of Microsoft’s business wasn’t (and isn’t) its sales department, or even Microsoft Windows, but rather Microsoft Office, a program that had, and continues to have, a lock on virtually the entire word processing market thanks to a combination of consumer familiarity and the difficulty of exporting documents into competing systems. To break Microsoft up, all the court had to do back in 1999 — or, for that matter, would need to do today — was issue an order forcing Microsoft to release the full Microsoft Windows source code and all future iterations. The court could then have just sat back and watched the company be devoured by a million startups, each offering a new flavor improving on the code.

Indeed, the easiest way to break up a big firm is to force licensing of its most valuable intellectual property assets. Because intellectual property doesn’t have a geographic location — ideas live in the ether — the problems of continued regional concentration that Smith also worries about don’t arise from licensing-driven breakups. And the beauty of it all is that in the Data Economy, intellectual property is the key to the dominance of most large firms. The age of behemoths deriving their power from vast installed bases of industrial equipment — the Standard Oils and the AT&T local loops — is gone. And so too any messiness associated with industrial deconcentration.

It’s time to recognize antitrust’s messy breakup fallacy for what it is.