walkitout (walkitout) wrote,
walkitout
walkitout

Hovenkamp, _The Antitrust Enterprise_ (kindle)

For a review of this book written by someone who actually appears to know what he's writing about, try this:

http://uchicagolaw.typepad.com/faculty/2006/08/book_review_hov.html

Altho I can't recommend the comments thread.

Law is law. If you try to make sense of it with reason or logic, you're bound to go astray. So Hovenkamp's historical approach is nice and he does a good job of presenting the politics and personalities involved without getting mean-spirited (which, if you stop to think about it for even two seconds in a row, is somewhat miraculous). He's a practical, pragmatic person, with a profound respect for the heavy-handedness of litigation and judicial decision making. If you have any idealism left in you about how the evils of blah corporation blah bleeping blah can be addressed by the court system, Hovenkamp'll do a pretty effective job of wringing that out of you.

Because the world has moved along a bit since Hovenkamp produced this book -- but not so long that we've forgotten the relevant changes -- the reader can judge for herself whether Hovenkamp's opinions on the Microsoft settlement make sense. If you aren't sure, and go looking at what other people said on the subject at the time, you might be surprised by just how careful Hovenkamp is in what he does say.

I picked this out because (a) the idea of reading anything by Bork made me feel, er, self-destructive and (b) I really wanted some kind of overview of antitrust from a legal/historical/policy perspective written by someone within the legal community.

I particularly was interested in an overview of antitrust policy and law because of the DOJ suit against 5 of the Big 6 publishers in the US and Apple. A lot of the commentary on the suit has focused on the effects of competition among retailers and/or publishers, rather than on the effects of competition on consumers. Hovenkamp simultaneously stays focused on the effects of competition on the end-consumer AND portrays in some detail how the legislative, judicial and policy aspects of antitrust have often instead focused on preserving a marketplace of many, small(er) competitive suppliers and/or retailers, assuming that without that populous marketplace, consumers will suffer. Current theory and practice assume that monopolies are relatively rare and may well be the result of a company or small number of companies which are doing exactly what consumers want at something very close to marginal cost.

Hovenkamp in no way gets into how ceasing a multi-decade policy of protection for small companies has changed the economy in general. He _does_ spend a fair amount of time explaining how antitrust should not be used to handle things like unfair or stupid contracts (<-- not his words).

Reading Hovenkamp, I could hear in the back of my head a couple of libertarian friends/acquaintances getting extremely steamed. Partly about the content, application and history of Robinson-Pattman. Partly about Hovenkamp's reasoning about how per se rules _have_ been applied vs. how they should be applied. I could also hear a lot of social activist friends/acquaintances getting equally steamed about Hovenkamp cavalierly signing on to what brought us Wal-Mart. As I discussed what I was reading with R., we mostly were somewhat appalled about what used to happen and generally okay with the direction things are going and Hovenkamp's frameworks specifically (he's got an agenda, altho it's more obvious in some places than others).

I _particularly_ liked Hovenkamp on the subject of intellectual property and libertarians.

"For example, while extreme free marketers might rail at the excesses of regulation or antitrust, they tend to accept the system of intellectual property (IP) rights as if it were handed down from a mountaintop...Anyone who does not believe that the IP laws are a form of regulation has not read the federal intellectual property statues and the technical rules promulgated under them."

Perhaps the best thing about this statement (over and above how outrageously funny it is to anyone who has met this kind of libertarian), is that Hovenkamp recognizes that not all "extreme free marketers" make this error: he says "tend". I'd love to hear Hovenkamp go after people who think the bankruptcy laws aren't a form of government regulation, because I've run across them, too.

He's still right of center, and if you are a big believer in small business, he's likely to piss you off. But I thought he found a good route through an ugly thicket, and he covered the ground well.
Tags: book review, economics, politics
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