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A L S O_ T O D A Y
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TIPPING THE ANTITRUST SCALES | PAGE 1, 2, 3
For Gillers, there are two key issues to consider when attempting to judge the propriety of a particular form of judicial behavior. "We want judges to stay educated, we don't stop judges from reading books from one point of view -- and a conference is simply another way of conveying information," says Gillers. "But risk arises if judges attend conferences dominated by a single point of view. So, for example, if there is an antitrust conference where all the speakers endorse a particular laissez-faire perspective on the antitrust laws, and especially if the judge attends several such conferences, we question his independence and his receptivity to contrary points of view. "The second of the two contexts in which the issue arises is somewhat different," says Gillers. "It's not ideological at all -- it has to do with the expenses for which the judge is reimbursed. Whatever the ideological component of the conference, the public has a right to be concerned if the quality of the travel is what we might call luxury, and in addition, the source of funds for the travel as the judge knows are companies or institutions that have a vested interest in how the courts, and especially the federal appellate courts, decide a certain category of cases." Who has the vested interest? The role of the "law and economics movement" in influencing jurisprudential trends defies easy categorization. Critics of law and economics traditionally identify the discipline with the Chicago school -- the economists and lawyers at the University of Chicago whose research and teachings provided the intellectual framework for the Reagan "revolution." Scholars such as Robert Bork and Richard Posner argued that legal disputes that involved economic issues should be decided on strictly pragmatic grounds, with the goal of maximizing overall societal wealth. Borrowing heavily from classical economic theory, law and economics theorists argued that the law should treat individuals as "rational actors" who would always work in their own best self-interest. Although at root the "economic analysis of law" may be a technique available to lawyers operating from any political vantage point, in practice, say critics, law and economics elevates the goal of "efficiency" above all others. And efficiency, say those critics, is simply a code word for an unregulated market. In terms of antitrust, says Albert Foer, president of the Antitrust Institute and an advocate of stronger antitrust enforcement, "the idea is that markets work extremely well, and when they have problems they self-correct, and government is incapable of correcting such things as a flawed market. Government can only make things worse." Some antitrust lawyers disagree. The main contribution of the rise of the law and economics movement, they argue, is to help focus antitrust litigators on what their true priorities should be. "Antitrust law is often torn between helping consumers, its legitimate darlings, and helping 'the little competitor,' whose interest may or may not coincide with those of consumers," says John Berresford, an antitrust attorney who teaches communications law at George Mason. "Antitrust law divorced from economics may err into helping small business just to preserve a sort of make-believe competition in which small business is protected whether or not it really helps consumers -- through lower prices, more choices, faster innovation. Law and economics thinking reduces the incidence of those errors." Within the legal academy, many scholars whose political perspective is diametrically opposed to the Chicago school have co-opted law and economics analysis for their own purposes. But, critics note, those scholars do not have the financial support to present their views to federal judges. "Bringing the Chicago school to bear on the training of judges and on the law schools has had a large and important impact that will continue to be felt for years," says Foer. "There has been no organized attempt to present a post-Chicago view of antitrust to federal judges. It would be nice if we had the money to take them to resorts and teach them why it is good. The money is not likely to be there. The money is with the interests that don't appreciate antitrust." The main players in this game are the Olin, Sarah Scaife, Lynde and Harry Bradley and Smith Richardson foundations. The Olin Foundation, in particular, has made the funding of law and economics one of its primary goals: In the mid-'90s alone, Olin granted $2.4 million to Harvard, $1.5 million to Stanford, $500,000 to UC-Berkeley, $3 million to the University of Chicago, $1 million to the University of Virginia and $1.2 million to Yale -- all for ongoing funding of law and economics programs. Olin also funds individual fellowships for graduate students and professors who pursue law and economics-related research. The Scaife Foundation also funds numerous law and economics programs, and has taken a particular interest in the George Mason Law and Economics Center. The Scaife Foundation provided original seed money for the establishment of the center (then located in Miami) in 1973, and as late as 1996 was still contributing around $100,000 a year to the center -- about 10 percent of its annual operating budget. The political priorities of the Olin and Scaife foundations are indisputable. Among their annual grantees are right-wing think tanks such as the American Enterprise Institute, the Cato Institute, the Heritage Foundation and the Manhattan Institute, media watchdogs like Accuracy in Media that specialize in exposing mainstream media's "liberal bias," and media organizations such as The American Spectator magazine, which spearheaded the attempt to unseat President Clinton through reporting of the Paula Jones scandal. "I don't think that there has ever been an organization like Olin that has had as much money and has devoted as much effort to persuading the judiciary on one particular issue," says Gary Minda, the Brooklyn law professor. "It is hard to deny the potential impact of an ideologically skewed organization that spends so much money to lobby the judiciary ... Under the guise of promoting ideas about economics, [Olin] is promoting an ideology about law in American society." However, if Olin is attempting to brainwash the legal profession, it has only been partially successful, even at the programs that it directly funds. Dan Rubinfeld, a law professor at the Boalt Hall School of Law at UC-Berkeley who chaired the law and economics center partially funded by the Olin Foundation, says, "the support was always without any strings attached. They were never involved with what we did and didn't do." Rubinfeld noted that he had spent the last two years working for the Department of Justice as an antitrust attorney, as part of "the current movement in antitrust" led by Assistant Attorney General Joel Klein, and that he "had been happy to be on the team." Rubinfeld disputed the assertion that there is a particular political bias to the law and economics approach toward antitrust. "I don't think the learning has any philosophical bent," says Rubinfeld. "That's certainly not the way I see it. I see the law and economics movement as entirely consistent with putting down the foundation for some of the enforcement activities that we engaged in [at the Department of Justice]." "I may be more activist than my Chicago colleagues and friends," says Rubinfeld. "We may have very different analyses, but we don't have any trouble communicating, so I think it is wrong to think that there may be political fights out there." Whether conservative funding of law and economics programs has specifically hobbled enforcement of antitrust laws, there's no denying that it has at the very least shifted the terms of debate. There may be no "trouble communicating" because both sides have focused their attention on the same issue of "efficiency." That, says Gary Minda, is missing the point of why antitrust laws were passed in the first place. "With all of this talk about efficiency," says Minda, "none of it is addressing the real issue -- the problem of one person or a small group of people who have enormous power to decide the fate of the lives of everyone else." Like Microsoft, maybe?
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