by Richard A. Epstein
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Product Description
For over one hundred years, the antitrust consent decree has been a major weapon in the federal enforcement of the antitrust laws. In this study, Richard Epstein undertakes the first systematic study of their use and effectiveness from both a historical and analytical perspective.
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Average Customer Review:
1 of 1 people found the following review helpful:
More for specialists than the general public, 2007-05-29
This is really a book for specialists or those who have a particular interest in anti-trust consent decrees. The average person, not understanding the fine points or goals or methods or limits of the law will find themselves getting quite frustrated with some of the points Epstein is making. He has taken a look at several aspects of our law rather than pronouncing and the morality or the rightness or wrongness of the companies entering into these decrees.
Epstein lays out the legal theories around consent decrees and how they arose from our quite fuzzy anti-trust laws. And it is hard for the anti-trust laws to not be cloudy because as soon as they are specifically defined, companies will find a way around those rules to accomplish a very similar end (rent seeking behavior through market dominance) just outside the grasp of the law.
He presents short case studies from the past such as U.S v Swift, ASCAP-BMI, and United Shoe Machinery. These are all quite interesting and informative. Personally, I enjoyed reading these accounts.
We are then given longer chapter length accounts on the breakup of the Bell System and the consent decrees basically imposed on Microsoft. Epstein demonstrates what he was wrong with the Bell breakup. While those companies created after the breakup are all but united again, I think it is hard to believe that the old AT&T would have engaged or allowed all the innovation we have had since then. But then, AT&T was a monopoly that was created and protected by legislation, and that is a huge problem, in my view. There was competition on the way, but fought every step of the way with AT&T's massive firepower. Still, it is the process and method rather than the thing done that is Epstein's concern.
The author thinks better of what has been done with Microsoft, even if he finds much of the challenges against the company questionable or even resolvable in a "fair" way. For example, on page 103 the author discusses OS/2 and the damage done to it by Microsoft. Essentially, he concludes that since the operating system wasn't going be successful anyway, as demonstrated by its failure, it is hard to assign damages to Microsoft. This seems to me to be similar to an argument made by a thief who had stolen some crystal justifying himself by saying that since he believed the owner was going to drop and break the crystal anyway he really didn't steal anything of value.
Still, Epstein is right in showing the difficult of handling these things under tort law rather than as crimes. And if they were to be handled as crimes wouldn't that be too harsh in most cases? However, if companies know how hard it will be to do anything against them, all they need to do is calculate how much they can gain by every sharper business practices and subtract the likely costs of litigation with the government. If it is greater than zero, they should engage in the questionable (or more than questionable) business practices since there is no way to effectively deter them. (This is my conclusion, not Epstein's).
I think Epstein does point out some valuable lessons learned about these decrees and they should be kept in mind in future cases.
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