Wednesday, June 9, 2010
Posted by D. Daniel Sokol
William H. Page (Florida Law) and John Lopatka (Penn State Law) have a very interesting new paper on The Microsoft Case as a Political Trial. Highly recommended!
ABSTRACT: This essay, written for a planned volume on political trials, considers the political dimensions of the government’s monopolization suit against Microsoft. The Microsoft case was not a political trial in the usual sense, but it was political for three reasons: first, it was a classic cause célèbre; second, it exposed the ideological conflicts within antitrust policy; and third, it brought unusually intense interest-group pressure on the Antitrust Division. We argue that the government’s case and its judicial resolution are best understood in terms of ideology, rather than naked interest-group pressure. The simple interest-group hypothesis has never explained the enactment and evolution of antitrust law very well, and it does not explain Microsoft. Both antitrust law and Microsoft are products of a subtler process, one characterized by conflicting and shifting conceptions of the capacity and limitations of the market and the government. These conceptions, or visions, are deeply held views of the public interest, and its relationship to conflicting private interests. They are not neatly separable from special interest pressures. Groups invoke these conceptions to press arguments for regulation in service of their own interests. But arguments in these terms are persuasive only if they resonate with the policymakers’ understanding of the public interest. Administrators and courts must routinely distinguish arguments that credibly advance the public interest from those that invoke it only as lip service. When a special interest group succeeds in persuading the government that an action that benefits the special interest also advances the public interest, the result can fairly be attributed to the interaction of the special interest’s narrative with the ideological outlook of the government policymaker. The Microsoft case illustrates these dynamics.