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An Editorial on Robert Bork and his Legacy

On Wednesday, December 19, 2012 Robert Heron Bork died at age 85I did not mourn.

Bork first became infamous in 1973 for his role in the “Saturday night massacre” when as Solicitor General, the number three position in the Justice Department, he carried out, under President Nixon’s orders, the firing of Watergate Special Prosecutor Archibald Cox.  Bork inherited this task when both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned in protest.  This much is well known.  What sometimes gets left out of the discussion, though, is that due to the manner in which Cox’s position was created and defined, he could not be removed except for cause.  Doing a good job of tracking down evidence relevant to the case he was pursuing does not qualify as cause.  This was a defining moment in Bork’s career, in which he conveniently chose power over principle.

Most recently he was the senior judicial adviser to Mitt Romney’s unsuccessful presidential campaign, but he is best known for being rejected as a Supreme Court justice when nominated for that position in 1987 by Ronald Reagan.  After his nomination was defeated by a 58-42 vote in the Senate, his name was verberized into a neologism that was [and occasionally still is] used almost exclusively in the passive voice.

To be “borked,” as his supporters would have it, is to be subjected to unfair criticisms based on distortions of your words, actions, and beliefs.  But his radically reactionary views on equal protection and sex discrimination were typical of his extreme and perverse positions. The mere fact that he was able to speak out in favor of a poll tax speaks volumes.  In reality, the borking of Bork consisted of subjecting him to valid criticism based on the precise meanings of his words, actions and beliefs.  Jeffrey Toobin explains.

Bork was “borked” simply by being confronted with his own views—which would have undone many of the great constitutional landmarks in recent American history. As Senator Edward Kennedy put it in a famous speech on the Senate floor, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, [and] writers and artists would be censored at the whim of government.”

Was Kennedy too harsh? He was not—as Bork himself demonstrated in the series of intemperate books he wrote after losing the Supreme Court fight and quitting the bench, in 1987. The titles alone were revealing: ”The Tempting of America,” “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” and “Coercing Virtue: The Worldwide Rule of Judges.” One of his last books may have summed up his views best. Thanks in part to decisions of the Supreme Court—decisions that, for the most part, Bork abhorred—the United States became a more tolerant and inclusive place, with greater freedom of expression and freedom from discrimination than any society in history. Bork called the book, accurately, “A Country I Do Not Recognize.”

Indeed, Bork’s words and actions were consistently anti-gay, anti-female, anti-minority, always favoring government intrusion over citizen’s rights, businesses over people, big business over small, and corporations over government.  His supporters would argue that these conclusions are based on principled positions, and that the outcomes, however repugnant to idealists, are therefore legitimate.  I argue instead that policies that consistently result in the contraction rather than the expansion of basic human rights, and that continually disadvantage definable target groups are corrupt at their core, and that the negative results are inherent and predictable.

After his defeat, Robert Bork gradually faded away from the public consciousness.  I can tell you, in the intervening 25 years, I gave him virtually no thought at all.

But Bork had enormous, possibly even dominant influence on the modern interpretation of anti-trust law, perhaps single-handedly redefining the scope and purpose of anti-trust legislation.  Basically, Bork was pro-efficiency and anti-anti-trust.  He had swallowed whole the bait-bucket of Chicago-economic-school ideas of market efficiency, and built the entire framework of his pro-trust belief system on that invalid foundation.

It seems fair to say that it is in some part because of Bork’s influence that we now have trans-national mega-corporations with huge oligopolies and near-monopolies.  These corporations have no inherent loyalty to anyone nor anything.  In my view, the oligarchs that run them do not even have a general sense of loyalty to stock-holders, let alone the broader universe of stake-holders, who mainly exist to be exploited.

Efficiency, in and of itself is a good thing.  But it cannot be achieved in a vacuum – frequently there are externalities that are largely negative.  For one thing, the efficiencies are mainly internalized and do not necessarily represent a more broadly efficient society.  Second, as a market gets concentrated, competition decreases and the pressure to improve, or even maintain status-quo efficiency slowly erodes.  This ultimately leads to a situation where big, lumbering and inefficient but extremely powerful entities control the economic and political landscape.  Yes, Big Oil, Big Pharma, Big Insurance, Big Finance, I am looking at you.

Perhaps worse, though, is the power asymmetry that results from size and influence.  Suppliers, customers, and the public at large are overwhelmed by the sheer might of these institutions, leading to even greater concentrations of power and wealth.

The end game is some version of economic collapse.  It happened in the 1930’s, and – due largely to neoclassical Chicago-style economic thinking that has over the last 40 years willfully unlearned the lessons of that time – it happened again in 2008.

Most of the time, evil doesn’t manifest as some cackling cartoon villain, mad-man on a murderous rampage, or even an unjust war waged on false pretenses.  It results instead, in a far more banal but far-reaching way, from the highly refined ideas of men like Robert Bork who value abstract concepts such as efficiency over the effects the programs they institute have on the lives of real human beings.

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Reasons Market Share Declines

Michael Swanwick explains how a monopoly can destroy itself:

Nowadays, times are much easier but a lot scammier. Last week I had to buy a new palmbook/laptop. Which, I discovered on my first and only day of possession, was preloaded with Windows 7 Starter, a not-fully-functional OS. When I tried to change the image on my desktop, I learned that doing so required that I go online and buy Windows 7 Home Premier. After getting my refund, I talked to salesfolk at various stores and learned that all the new palmtops have the cut-down version because they don’t have memory enough to run W7HP.

Well, each new version of Windows is written far too memory-hoggish for the current hardware. So it only makes sense that the new OS would have fewer features. Still, it was pretty cheeky of them to have it automatically try to sell me an OS that my device couldn’t run.

Apple doesn’t play that kind of game, so if I’d been willing to wait for the iPad to come available, I probably would’ve spent the extra money for it. But I have work to do, so I scrounged around until I found one of the dwindling number of netbooks still running on XP.

As I’ve noted before, they did this on laptops with Vista as well. There is no better way to destroy your reputation that to put out something that doesn’t work.

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Students who Whine Like This are not Long for Class

The Battle of Late January has ended, as Amazon yields, gracelessly:

We have expressed our strong disagreement and the seriousness of our disagreement by temporarily ceasing the sale of all Macmillan titles. We want you to know that ultimately, however, we will have to capitulate and accept Macmillan’s terms because Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books. Amazon customers will at that point decide for themselves whether they believe it’s reasonable to pay $14.99 for a bestselling e-book. We don’t believe that all of the major publishers will take the same route as Macmillan. And we know for sure that many independent presses and self-published authors will see this as an opportunity to provide attractively priced e-books as an alternative. [emphases mine]

Whenever a company talks about how it is looking out for your interested, Jim Henley’s consumer-surplus version of reality notwithstanding, check for your wallet; it’s probably missing.

The first italic is obvious: any firm that calls complete stopping of sales “expressed our strong disagreement” is either really stupid or exercising monopoly power—and no one thinks Jeff Bezos is stupid.

The second is even sillier: Amazon accuses Macmillan of exercising “monopoly power” and declares that they “will have to capitulate.” Someone ask the people at Hachette about how Amazon has to yield in a clash between it and publishers.

We’ve all seen the claim that starts this article: “On Christmas Day, for the first time in its history, (AMZN) sold more digital books than the old fashioned kind.” Not for the Xmas season; just on the day. And even there, it’s an Amazon declaration—not verifiable from the publishers, since e-book sales are confidential information. But Tobias Bucknell lays out the details from his royalty statements:

Well, I have my eBook sales figures of Crystal Rain, a book that has sold in the five figures in print, meaning people who have purchased in print, print online and in bookstores. That’s a nice run, it’s my bestselling book of the 3 Xenowealth books (Crystal Rain, Ragamuffin, Sly Mongoose), but leaves me still a midlist writer….

In 2008, for a brief while, Crystal Rain was available for free via download. Number of Kindle users who downloaded it: low thousands. Number who’ve purchased it for sale after that: low hundreds.

So five figures in volume compared to three figures. That’s an order of magnitude difference.

This magnitude difference holds steady. I sell hundreds of copies of eBooks, and thousands of paper copies.

The difference between Hachette and Macmillan isn’t one of size. It’s that the Amazon monopoly—the proprietary e-reader format of the Kindle—now has another viable rival: the poorly-named iPad, which uses the ePub format that is the standard among non-Kindle readers.

Apple is confident: the iPad will do more things than read books, so it can sell books that can also be read on other devices. Amazon, for all that it offers other products, lacks that ability, and is trying to protect itself through proprietary formatting.

It appears—given the speed with which they ended their ostracizing of Macmillan—that they may need a new business strategy soon.

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Hogging/Jimmy Webb Post

Ken Houghton distracts us from the important things with an examination of monopoly power, asymmetric information, and perpetuating a bad business deal.

By the time Gary Bettman got to Phoenix, his lawyer was lying to the court:

“There are three things that it takes to be an owner of an NHL franchise. One, you’ve got to be wealthy … two, you’ve got to love hockey. And Mr.Balsillie, he has got both of these in his favour in spades. Nobody’s denying that. But number three, your Honour, you’ve got to play by the rules that bind NHL owners.”

My Loyal Reader notes that NHL owners are clearly bound by something. In at least one case, handcuffs. From the WSJ, two days ago:

[William “Boots” Del Biaggio III’s] [bankruptcy] filing came amid lawsuits accusing him of fraudulently offering collateral he didn’t own to secure the loans he took out before buying the [NHL’s Nashville] Predators.

Del Biaggio pled guilty to forging financial documents in order to secure $110 million in loans from eight banks and National Hockey League owners Craig Leopold (of the Minnesota Wild) and AEG (of the Los Angeles Kings), loans that Del Biaggio used to buy his stake in the NHL team.

It’s good to see that the owners have a very strict policy when selecting owners, almost as sensible a policy as when they located a team in the Phoenix area in the first place. (Noted for the record: both the city of Phoenix and Scottsdale turned down the “opportunity” to have the Coyotes play in an arena there after the initial lease was up. Only Glendale was stupid enough to make an offer.) I guess none of them owns a Blackberry.

Webb version here.

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