Who’s to Blame for Out-Of-Control Corporate Power?
One man is especially to blame for why corporate power is out of control. And I knew him! He was my professor, then my boss. His name… Robert Bork.
Robert Bork was a notorious conservative who believed the only legitimate purpose of antitrust — that is, anti-monopoly — law is to lower prices for consumers, no matter how big corporations get. His philosophy came to dominate the federal courts and conservative economics.
I met him in 1971, when I took his antitrust class at Yale Law School. He was a large, imposing man, with a red beard and a perpetual scowl. He seemed impatient and bored with me and my classmates, who included Bill Clinton and Hillary Rodham, as we challenged him repeatedly on his antitrust views.
We argued with Bork that ever-expanding corporations had too much power. Not only could they undercut rivals with lower prices and suppress wages, but they were using their spoils to influence our politics with campaign contributions. Wasn’t this cause for greater antitrust enforcement?
He had a retort for everything. Undercutting rival businesses with lower prices was a good thing because consumers like lower prices. Suppressing wages didn’t matter because employees are always free to find better jobs. He argued that courts could not possibly measure political power, so why should that matter?
Even in my mid-20s, I knew this was hogwash.
But Bork’s ideology began to spread. A few years after I took his class, he wrote a book called The Antitrust Paradox summarizing his ideas. The book heavily influenced Ronald Reagan and later helped form a basic tenet of Reaganomics — the bogus theory that says government should get out of the way and allow corporations to do as they please, including growing as big and powerful as they want.
Despite our law school sparring, Bork later gave me a job in the Department of Justice when he was solicitor general for Gerald Ford. Even though we didn’t agree on much, I enjoyed his wry sense of humor. I respected his intellect. Hell, I even came to like him.
Once President Reagan appointed Bork as an appeals court judge, his rulings further dismantled antitrust. And while his later Supreme Court nomination failed, his influence over the courts continued to grow.
Bork’s legacy is the enormous corporate power we see today, whether it’s Ticketmaster and Live Nation consolidating control over live performances, Kroger and Albertsons dominating the grocery market, or Amazon, Google, and Meta taking over the tech world.
It’s not just these high-profile companies either: in most industries, a handful of companies now control more of their markets than they did twenty years ago.
This corporate concentration costs the typical American household an estimated extra $5,000 per year. Companies have been able to jack up prices without losing customers to competitors because there is often no meaningful competition.
And huge corporations also have the power to suppress wages because workers have fewer employers from whom to get better jobs.
And how can we forget the massive flow of money these corporate giants are funneling into politics, rigging our democracy in their favor?
But the tide is beginning to turn under the Biden Administration. The Justice Department and Federal Trade Commission are fighting the monopolization of America in court, and proposing new merger guidelines to protect consumers, workers, and society.
It’s the implementation of the view that I and my law school classmates argued for back in the 1970s — one that sees corporate concentration as a problem that outweighs any theoretical benefits Bork claimed might exist.
Robert Bork would likely regard the Biden administration’s antitrust efforts with the same disdain he had for my arguments in his class all those years ago. But instead of a few outspoken law students, Bork’s philosophy is now being challenged by the full force of the federal government.
The public is waking up to the outsized power corporations wield over our economy and democracy. It’s about time.
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I'm on a 20+ city book tour for my new novel PICKS AND SHOVELS. Catch me in PDX on Jun 20 at BARNES AND NOBLE with BUNNIE HUANG. After that, it's LONDON (Jul 1) and MANCHESTER (Jul 2).
Episode 3 of "Understood: Who Broke the Internet?" (my new CBC podcast about enshittification) just dropped. It's called "In God We Antitrust," and it's great:
The thesis of this four-part series is pretty straightforward: the enshittification of the internet was the result of an enshittogenic policy environment. Platforms always had the technical means to scam us and abuse us. Tech founders and investors always included a cohort of scumbags who would trade our happiness and wellbeing for their profits. What changed was the consequences of giving in to those impulses. When Google took off, its founders' mantra was "competition is just a click away." If someone built a better search engine, users could delete their google.com bookmarks, just like they did to their altavista.com bookmarks when Google showed up.
Policymakers – not technologists or VCs – changed the environment so that this wasn't true anymore:
In last week's episode, we told the story of Bruce Lehman, the Clinton administration's Copyright Czar, who swindled the US government into passing a law that made it illegal to mod, hack, reverse-engineer or otherwise improve on an existing technology:
This neutralized a powerful anti-enshittificatory force: interoperability. All digital tech is born interoperable, because of the intrinsic characteristics of computers, their flexibility. This means that tech is inherently enshittification-resistant. When a company enshittifies its products or services, its beleaguered users and suppliers don't have to wait for a regulator to punish it. They don't have to wait for a competitor to challenge it.
Interoperable tools – ad-blockers, privacy blockers, alternative clients, mods, plugins, firmware patches and other hacks – offer immediate, profound relief from enshittification. Every ten foot pile of shit that a tech company drops into your life can be met with an eleven foot ladder of disenshittifying, interoperable technology.
That's why Lehman's successful attack on tinkering was so devastating. Before Lehman, tech had achieved a kind of pro-user equilibrium: every time a company made its products worse, they had to confront a thousand guerrilla technologists who unilaterally unfucked things: third party printer ink, file-format compatibility, protocol compatibility, all the way up to Unix, a massive operating system that was painstakingly re-created, piece by piece, in free software.
Lehman offered would-be enshittifiers a way to shift this equilibrium to full enshittification: just stick a digital lock on your product. It didn't even matter if the lock worked – under Lehman's anticircumvention law, tampering with a lock, even talking about weaknesses in a lock, became a literal felony, punishable by a five-year prison sentence and a $500K fine. Lehman's law was an offer no tech boss would refuse, and enshittification ate the world.
But Lehman's not the only policymaker who was warned about the consequences of his terrible plans, who ignored the warnings, and who disclaims any responsibility for the shitty world that followed. Long before Lehman's assault on tech policy, another group of lawyers and economists laid waste to competition policy.
In the 1960s and 1970s, a group of Chicago School economists conceived of an absurd new way to interpret competition law, which they called "the consumer welfare standard." Under this standard, the job of competition policy was to encourage monopolies to form, on the grounds that monopolies were "efficient" and would lower prices for "consumers."
The chief proponent of this standard was Robert Bork, a virulent racist whose most significant claim to fame was that he was the only government lawyer willing to help Richard Nixon illegally fire officials who wouldn't turn a blind eye to his crimes. Bork's long record of unethical behavior and scorching bigotry came back to bite him in the ass when Ronald Reagan tried to seat him on the Supreme Court, during a confirmation hearing that Bork screwed up so badly that even today, we use "borked" as a synonym for anything that is utterly fucked.
But Bork's real legacy was as a pro-monopoly propagandist, whose work helped shift how judges, government enforcers, and economists viewed antitrust law. Bork approached the text of America's antitrust laws, like the Sherman Act and the Clayton Act, with the same techniques as a Qanon follower addressing a Q "drop," applying gnostic techniques to find in these laws mystical coded language that – he asserted – meant that Congress had intended for America's anti-monopoly laws to actually support monopolies.
In episode three, we explore Bork's legacy, and how it led to what Tom Eastman calls the internet of "five giant websites, each filled with screenshots of the other four." We got great interviews and old tape for this one, including Michael Wiesel, a Canadian soap-maker who created a bestselling line of nontoxic lip-balm kits for kids, only to have Amazon shaft him by underselling him with his own product.
But the most interesting interview was with Lina Khan, the generational talent who became the youngest-ever FTC chair under Joe Biden, and launched an all-out assault on American monopolies and their vile depredations:
Khan's extraordinary rise to power starts with a law review paper she wrote in her third year at Yale, "Amazon's Antitrust Paradox," which became the first viral law review article in history:
"Amazon's Antitrust Paradox" was a stinging rebuke to Bork and his theories, using Amazon's documented behavior to show that after Amazon used its monopoly power to lower prices and drive rivals out of the market, it subsequently raised prices. And, contrary to Bork's theories, those new, high prices didn't conjure up new rivals who would enter the market with lower prices again, eager to steal Amazon's customers away. Instead, Amazon's demonstrated willingness to cross-subsidize divisions gigantic losses to destroy any competitor with below-cost pricing created a "kill zone" of businesses adjacent to the giant's core enterprise that no one dared enter:
The clarity of Khan's writing, combined with her careful research and devastating conclusions dragged a vast crowd of people who'd never paid much attention to antitrust – including me! – into the fray. No wonder that four years later, she was appointed to serve as the head of the FTC, making her the most powerful consumer rights regulator in the world.
We live in an age of monopolies, with cartels dominating every part of our lives, acting as "autocrats of trade" and "kings over the necessaries of life," the corporate dictators that Senator John Sherman warned about when he was stumping for the 1890 Sherman Act, America's first antitrust law:
Bork and his co-religionists created this age. They're the reason we live in world where we have to get our "necessaries of life" from a cartel, a duopoly or a monopoly. It's not because the great forces of history transformed the economy – it's because of these dickheads:
This episode of "Understood: Who Borked the Internet?" draws a straight line from those economists and their ideas to the world we live in today. It sets up the final episode, next week's "Kick 'Em in the Dongle," which charts a course for us to escape from the hellscape created by Bork, Lehman, and their toadies and trolls.
You can get "Understood: Who Broke the Internet?" in any podcast app, even the seriously enshittified ones (which, let's be real here, is most of them). Here's a direct link to the RSS:
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
Today, originalism is typically associated with political conservatives. Conservative scholars such as Robert Bork embraced originalism as a way to attack the liberal Warren Court’s decisions in the early 1970s. Justice Scalia, a conservative icon, spent several decades as originalism’s most vocal evangelist. On the current Court, the originalist banner is carried by conservative Justices Thomas and Gorsuch. And these two men are likely to be joined on the Supreme Court by the originalist conservative Amy Coney Barrett.
And yet, for much of the 20th century, the most vocal proponent of the kinds of textual and historical arguments favored by modern-day originalists was Justice Hugo Black, a liberal Franklin Roosevelt appointee. (There are subtle methodological differences among these different waves of originalism. Black, for example, tended to speak about the Constitution’s “original purpose,” while modern originalists speak more of its “original public meaning.”)
In the past century, there have been three great waves of originalism. The first, spearheaded by Black, sought to tear down prior efforts by conservative judges to thwart progressive legislation. The second, led by men like Scalia, was primarily a backlash against decisions like Roe v. Wade (1973) — decisions beloved by liberals and hated by conservatives.
The third wave, meanwhile, also has its roots in legal conservatism, but it is quite distinct from the restrained vision of judging advocated by Justice Scalia (or, at least, advocated by Scalia in the 1980s). Led by men like Thomas and Gorsuch, third-wave originalists are quite comfortable with judicial power. And they are eager to use it to drastically reshape the law.
“Originalism, Amy Coney Barrett’s approach to the Constitution, explained” from Vox
How many betrayals from Republican-nominated Supreme Court Justices will it take to finally convince conservatives that the judicial deck is systemically stacked against us in such a wa
For the Chief Justice, that he would switch his posture from dissenting to concurring in the same case merely two years later speaks volumes about his (erroneous) fealty to stare decisis norms. As Whelan says, "today the Chief treats as governing precedent the Court’s 2017 decision in Moore, in which he wrote the dissent (for himself, Thomas, and Alito)." As for Kavanaugh, he similarly would be mistaken to treat the 2017 Moore remand order as persuasive — let alone correct or even "binding." Indeed, it is very difficult to see how Roberts and Kavanaugh could possibly agree to summary reversal today if they did not both view the 2017 Moore remand — from which, again, Roberts dissented (!) — as something closely approximating "binding" precedent.
It seems clear that the Chief Justice and Justice Kavanaugh are already duking it out to see who can better anoint himself the "new Anthony Kennedy." I do hope they enjoy themselves. But what is not particularly enjoyable is to watch the legal conservative movement beclown itself time and time again by nominating — and placing institutional and political capital behind — judges who more often than not deeply disappoint conservatives.
In November 1996, the late Robert Bork penned the following at First Things:
Republican Presidents have used the nomination process in an effort to change the direction of the Court with almost zero results on the major issues. After twelve years of Presidents Reagan and Bush, each of whom made a determined effort to appoint Justices who would abide by the Constitution as originally understood, we seem farther than ever from a restrained Court. Between them, Reagan and Bush had five appointments. Only two try to relate their decisions to the Constitution as the men who wrote, proposed, and ratified it understood it. A majority of the Justices has become more arrogantly authoritarian than ever.
Sadly, 23 years later, our crisis is even worse. We will never, ever win the "long game" of judicial nomination wars with the Left.
What we can do, however, is work to end sycophantic judge-worship and self-destructive judicial supremacism in America.
On the evening of Saturday, 20 October 1973, President Richard Nixon ordered Attorney General Elliot Richardson to fire independent special investigator Archibald Cox (who was leading the Watergate investigation). Richardson refused and resigned effective immediately; Nixon then ordered Deputy Attorney General William Ruckelshaus to do the firing. Ruckelshaus also refused and resigned.
Nixon then turned to Solicitor General Robert Bork, and after having been brought to the White House by limousine and sworn in as acting attorney general, did as Nixon ordered and fired Cox in what became known as the Saturday Night Massacre.
11 days later a new special counsel was appointed, and on 14 November, Cox’s dismissal was declared illegal by a federal court.
The Ethics in Government Act was created in the wake of Nixon’s actions, and Title VI of the law (enacted in Oct. 1978) provided protections for a special prosecutor (who can “only be removed by impeachment and conviction by congress, or by the Attorney General for ‘substantial improprieties’ or a physical or mental condition that affects performance.”). The law expired in 1999.
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Supreme Court nominee Robert Bork during his confirmation hearings in September 1987. Nominated by Reagan for his strong conservative views, Bork was rejected by the Senate after only receiving 42 ‘yea’ votes. The vacant seat on the court eventually went to the more moderate Anthony Kennedy.
The Senate vote on the nomination of Robert Bork to the Supreme Court (1987), the last time in which a nomination to the Supreme Court was rejected by the Senate.
