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Borked: Supreme Court Nominee Reverses Course on Proper Role of Antitrust Enforcement

The Chicago Tribune recently ran an opinion piece from Robert H. Bork, former U.S. Court of Appeals judge and Reagan nominee to the U.S. Supreme Court and, importantly, currently an adviser to Google.

As you may guess, Bork is someone with a strong point of view on antitrust issues.

However, in the piece, Bork contradicts his past writings about the proper role of antitrust. But don’t take our word for it. In 1998, Bork penned an op-ed in The New York Times entitled “What Antitrust is All About,” in which he wrote of another pending major antitrust case at the time:

“There seems to be a widespread impression that the Microsoft controversy should be resolved by an ideological litmus test: liberals are bent on punishing success, and conservatives must defend Bill Gates’s company from any application of the antitrust laws. But the question is not one of politics or ideology; it is one of law and economics. And that is why an outspoken free marketeer like me can be found arguing against Microsoft.”

In light of Bork’s defense of Google today, it’s worth considering how Bork ended his 1998 column in which he advocated for enforcement of antitrust laws:

“Netscape and the other companies seeking an end to these [anti-competitive] practices are not asking the Justice Department to take any action that would interfere in the slightest with Microsoft’s ability to innovate. The department is simply being asked to stop Microsoft from stifling the innovations of others. The object is to create a level playing field benefiting consumers. That is what antitrust is about…”

Bork’s words from 1998 hold important lessons for today. By inserting “Google” for “Microsoft”, and instead of Netscape, innovative companies like Yelp and TripAdvisor who have spoken out about Google’s practices, Bork’s 1998 column would be ready for publication today (not to mention in line with his previous thinking).

In 1998, Bork wrote of a landmark antitrust case that could easily be applied to Google’s abuse of its dominance of the online advertising market today:

“The case, from 1951, was Lorain Journal Company v. United States, and the Court’s ruling is directly on point. The Journal, in the Court’s description of the case, ‘enjoyed a substantial monopoly in Lorain, Ohio, of the mass dissemination of news and advertising.’ The daily newspaper had 99 percent coverage in the town.

‘Those factors,’ the Court said, ‘made The Journal an indispensable medium of advertising for many Lorain concerns.’ A minor threat to The Journal’s monopoly arose, however, with the establishment of radio station WEOL in a nearby town. The newspaper responded by refusing to accept local advertising from any Lorain County advertiser that used WEOL.

The Supreme Court called that an attempt to monopolize, illegal under Section 2 of the Sherman Act. There being no apparent efficiency justification for The Journal’s action — that is, no evidence that it resulted in an operation whose efficiency somehow benefited consumers — it was deemed predatory.”

Looking back on Bork’s about face (he was for antitrust enforcement to “create a level the playing field benefiting consumers” in 1998, before he was against it as a Google adviser), FairSearch is reminded of the legal acrobatics of Google counsel Susan Creighton in her Senate testimony at the “Power of Google” hearing (Creighton similarly flip-flopped her position from years past).

In the end, conservative legal scholars examining the case that Google has violated antitrust laws need not look to Bork for a prism through which to view the case.

As Supreme Court Justice Antonin Scalia indicated in Eastman Kodak Co. v. Image Technical Services, “[w]here a defendant maintains substantial market power, his activities are examined through a special lens:  Behavior that might otherwise not be of concern to the antitrust laws – or that might even be viewed as procompetitive – can take on exclusionary connotations when practiced by a monopolist.”