would this work as a tax evasion scheme? A group of people have accounts with “points”, and they pay each other in points, and at the end of the year they cash out their point balances if positive, or buy more points if negative. So for everything within the point economy, your taxable income is actually income minus expenses, it basically made all expenses within the point economy tax deductable
As a tax *avoidance* scheme, meaning a legal way to reduce taxes, no. This falls under “Bartering Income”, for which the rule is “You must include in gross income in the year of receipt the fair market value of goods or services received from bartering.” So legally you’d have to report the total value of everything you received in the points economy, not the net value at the end of the year.
As a tax *evasion* scheme, meaning an illegal way to under-report your taxes that is hard for the IRS to catch on to, it seems like it has promise. Among other things, there’s probably lots of room to underestimate the fair market value of the stuff that goes into the exchange in ways that would be hard for the IRS to prove is an underestimate (especially with the inadequate enforcement resources it has).
how does it work when a company board agrees to an offer to buy the company like
if the company is publicly traded doesn’t that mean they’re effectively selling my stock for me
okay sure the board is elected by shareholders and tasked with acting in their interest
and they likely know my interest better than I do; if I buy some MCD I certainly trust their board to make better decisions on how to sell borgar than I could
so if the board thinks selling the company makes the shareholders more money than the discounted expected dividends, sure
but if I owned like 10% of a company and disagreed, I’d be upsett
Generally speaking, an friendly acquisition requires both board approval and a shareholder vote, so you can vote against. In practice, if you have 10% ownership, you can probably exercise a lot of influence over the board’s decision, too.
i wonder if adverse possession reform might be a better policy than status quo or strict taxes on vacant lots/unoccupied homes that are falling apart and are ripe for squatters. i’ll refer to both as “lots” hereafter
some ideas (not taking into account edge cases these policies might provoke): - if you make nonnegligible improvements to a lot before you’re asked to leave by an agent of the owner, you’re allowed to document your improvements and then sue* the owner for labor and materials** - if you can show that you have $x of money at your disposal to improve a lot, the owner must escrow $x that can only be used for the improvement of that lot (and no financial shenanigans to use it for alpha elsewhere)
i think this would require some trespass reform as well, maybe other parts of law as well but idk
~epistemic status: these reforms would probably be a useful change, but marginal and depending heavily on implementation. if you had an aggressive policy, you might be able to make it work well?
*if you can’t do this with civil law, you can have a grant structure or smth but good luck getting that to work well
**this might have the effect of encouraging more building generally, because if a bank can show that actually, the rando showing up in court is charging way more than someone else just charged, then that limits their liability. But that’s even more speculative than i want to include in the main post
@tranxio said: I think someone could probably do the first thing under the common law through an action in unjust enrichment
FOR IMMEDIATE RELEASE, July 9, 2019 Contact: Evan Greer, 978-852-6457, [email protected]
Digital rights group Fight for the Future, known for organizing many of the largest online protests in history, has launched BanFacialRecognition.com, becoming the first national organization to call for a complete Federal ban on government use of facial recognition surveillance.
The page features an eerie and dystopian face scanning animation, and allows Internet users to easily contact their local, state, and federal lawmakers. It reads: “Silicon Valley lobbyists are disingenuously calling for light “regulation” of facial recognition so they can continue to profit by rapidly spreading this surveillance dragnet. They’re trying to avoid the real debate: whether technology this dangerous should even exist. Industry and government friendly oversight will not fix the dangers inherent in law enforcement use of facial recognition: we need an all out ban.”
An infographic further down the page drives the argument home: “Facial recognition is unlike any other form of surveillance. It enables automated and ubiquitous monitoring of an entire population, and is nearly impossible to avoid. If we don’t stop it from spreading, it will become the hallmark of authoritarian states, used not to keep us safe, but to control and oppress us.”
“Imagine if we could go back in time and prevent governments around the world from ever building nuclear or biological weapons. That’s the moment in history we’re in right now with facial recognition,” said Evan Greer, deputy director of Fight for the Future (pronouns: she/her), “This surveillance technology poses such a profound threat to the future of human society and basic liberty that its dangers far outweigh any potential benefits. We don’t need to regulate it, we need to ban it entirely.”
Momentum against facial recognition is growing. This weekend, we learned that ICE and the FBI use facial recognition on millions of Americans’ drivers license photos, getting access to our personal information with no consent. Both Democrat and Republican legislators were outraged—both Alexandria Ocasio-Cortez and Jim Jordan, polar opposites in Congress, agree that the use of facial recognition poses a huge threat to civil liberties.
Cities are involved too: San Francisco and Somerville, Massachusetts, have both banned facial recognition. Even Axon, which makes tasers and body cams for police officers, said it would not commercialize facial recognition because it cannot currently “ethically justify” its use.
We’re joining this outcry to call for a complete ban on facial recognition. It’s time the federal government take a stand now to prevent this technology from proliferating across the country.
###
Some choice quotes from the WaPo article, bolding mine: “ The FBI’s facial-recognition search has access to local, state and federal databases containing more than 641 million face photos, a GAO director said last month. But the agency provides little information about when the searches are used, who is targeted and how often searches return false matches. “
…in fact the closest they get to admitting that is “ The FBI said its system is 86 percent accurate at finding the right person if a search is able to generate a list of 50 possible matches,according to the GAO. But the FBI has not tested its system’s accuracy under conditions that are closer to normal, such as when a facial search returns only a few possible matches.”
……86…….percent?? ONLY EIGHTY SIX?? Holy shit. That’s crazy low for something that can result in an ARREST or CRIMINAL CONVICTION, that’s not just me, right?? like?? that’s barely more than a 4 out of 5 chance?? Yeah it’s better than random 50/50 guess, by a considerable amount, but that’s still a a HUGE margin of error considering the stakes??
And this is them trying to convince people to actually let them use it!! To pry into personal lives and activities of people who didn’t consent to the search!! Yeah they claim they ~investigate past that~ but considering how unreliable even eyewitness testimony is at accurately and consistently IDing suspects, particularly those who’re black or brown, and considering how this is investigated by human beings who have,, cough, biases like anybody else would……….nnnngh??
Oh speaking of the extra risk to POC, that’s ALSO being made worse!
“ Civil rights advocates have said the inaccuracies of facial recognition pose a heightened danger of misidentification and false arrests. The software’s precision is highly dependent on a number of factors, including the lighting of a subject’s face and the quality of the image, and research has shown that the technology performs less accurately on people with darker skin.”
So let me get this straight: this tech, a tech that only works on 43 out of every fifty people WHEN you have at least 50 people in your possible range (so, false positives are at least 7 out of every such sample on average?? am I correct??), AT BEST………and is being used WITHOUT A WARRANT OR CONSENT to dig through personal data with the EXPLICIT intent to accuse someone of a crime……
….is ALSO much much more likely to falsely label a black person or dark-skinned Asian or Latinx person, than a white one, of being a Potential Criminal???
Ohhh man. Shades of “you fit a description, sir” all over again, huh? Human beings are already terrible at telling people of other races apart, you are really gonna use a tech that ALSO still has high key issues with that??
And if all this hasn’t unnerved you yet, please keep in mind that the worst part of this scandal is that this is pretty blatantly scraping at the Fourth Amendment: there were NO warrants issued for these facial recognition searches of driver’s license databases. They were run without establishing a Probable Cause as to why they’d be particularly needed, they didn’t have a warrant/paper trail to it, and NONE of the States this happened in, requires people to sign off consent to having their data strip-mined and searched by third parties let alone law enforcement like this!!
Like, jesus, NO?? At least require a fucking warrant???
Also sidebar considering how many people Happen To Look So Identical to say, Britney Spears, by sheer genetic/environmental coincidence…like, faces aren’t as Unique as DNA or fingerprints (which already aren’t ALWAYS 100% unique and have their own issues in terms of potential testing errors or matching limitations as it is), this is….this is horrifying?? The possibility of getting a false match even on white people but ESPECIALLY on POC, is SO FREAKING HIGH what the fuck??
Just. Yes, PLEASE talk to your State and Federal legislators about this!!! please, PLEASE get them to rein this in before it’s too late!! (or even more Too Late, as it were, since this is already going on apparently!!)
tbh there’s a good chance that many who were raised in american schools don’t know this, but one of the sanctions on lgbt+ bodies which existed pre-stonewall (and after tbh) was what was called the “three article rule”. it was legally required that people would have to be wearing 3 or more items of “correct” clothing for their gender.
a person found in clothing that did not “fit” their assigned gender could and would be arrested. this law wasn’t repealed in new york untilrecently. the actual prosecution of this law has disproportionately affected trans women and women of color.
texas is beginning to create “anti-drag” legislations. pre-existing conditions have shown us the degree to which “clothing must fit your assigned gender” can and will be used to create unsafe conditions for lgbt+ and minority populations. labelling drag “inappropriate” for children isn’t just a first step towards systematic abuse - it is the assurance that the systematic abuse will occur. there is no population that will be made safe by this law; it exists only to create moral panic and further division. i’ve spoken about this a lot, but “think of the children” & “protect innocence” is a vile, white-nationalist stakehold which positions queer expression as being inherently “perverted”, “sexual”, or “deviant”.
legislation that corroborates the sentiment that “drag is not appropriate for children” is incredibly harmful not just in the immediate - but also because it sets the legal precedentthatanyact of gnc expression is inherently inappropriate and wrong.
read up on your history, if you can. and remember: we said we would never let this happen to us again.
No longer is this about the rights of students to access books. It’s now about the rights of private businesses to sell books. Anderson suggests this is a new avenue for parents to fight.
“We are in a major fight. Suits like this can be filed all over Virginia. There are dozens of books. Hundreds of schools,” he said.
Holy shit this is a BIG FUCKING WARNING SIGN. Challenges to school and public libraries aren’t cool obviously, but they’re not unusual and we have a framework for handling them. This is something new and alarming in a whole new way
Republican “free speech” y'all and don’t you forget it.
This is a direct challenge to the freedom of the press and if it isn’t struck down at the first hurdle we need to make sure it never sees the second one.
On the miniscule off-chance that anyone who sees my reblog might be thinking “oh, it’s just queer books that they’re trying to ban” - A Court of Mist and Fury is a het romance. It is a het romance containing het sex scenes, written by a straight white woman.
People have been warning all along that the right-wing thought police were never going to stop with queer lit or ‘woke’ lit, and that every time they got an inch they were going to take a mile until they’d banned absolutely everything that didn’t conform to their strict right wing fundamentalist Christian views. If you were waiting for proof of that, here it is.
adding this which I saw yesterday, which appears to indicate this judge is not just deciding whether to allow this bookstore to sell certain books to minors.
“regarding whether the books may be sold OR POSSESSED in Virginia by EITHER MINORS OR ADULTS”
I don’t even like Sarah Maas (not trying to start anything, I just didn’t get into the first one) but this makes me want to go get this book and maybe a couple of others, just for spite.
Here’s a media literacy rule of thumb: any time you hear about how the courts have done something outrageous and absurd to some poor, long-suffering, gigantic, wildly profitable corporation…dig deeper.
The canonical example is the “McDonald’s Hot Coffee Lawsuit” (aka Liebeck v. McDonald’s Restaurants). You know, that time that an old lady got burned by her McDonald’s coffee and then sued for for $2.7 million?! Most people heard that story — and they heard it for a reason.
The Hot Coffee story was propaganda — specifically, it was propaganda for the idea that corporations should be shielded from legal liability when they maim or even kill the public through gross negligence. The real Hot Coffee story is a lot more complicated than the “lady gets millions because her coffee was too hot” tale that circulated widely.
One of the best explorations of the Hot Coffee story is Adam Conover’s excellent “Adam Ruins The Hot Coffee Story” video from 2016. In that episode, Conover explains what really happened.
The coffee that burned Stella Liebeck in New Mexico in 1994 was served at 190°F. It caused third-degree burns that permanently disfigured Liebeck, required multiple skin grafts, and disabled her for two years. The surgery was so drastic that Liebeck lost 20% of her body-weight while she was recovering.
McDonald’s had a history of serving coffee that was dangerously hot. It had received 700 complaints about the matter, and had had to settle numerous claims from people who were horribly burned by its coffee. However, it declined to settle with Liebeck, who initially sought $20k to cover her medical expenses.
Denied a settlement, Liebeck sued. The jury did award $2.7m, but the judge clawed it back to $640k. Liebeck likely didn’t get that amount — she and McDonald’s reached a confidential settlement under threat of McDonald’s appealing.
So, the real story isn’t: “Old lady spills coffee and gets millions.”
It’s “McDonald’s ignores hundreds of dangerous incidents for years, then maims a customer for life and refuses to pay her medical bills or change its practices to avoid future incidents. A judge says she’s due a fraction of the jury award, but she doesn’t get it because McDonald’s uses its massive litigation war-chest to force her into a confidential settlement.”
So why did you hear so much about this story? And why was the moral of the story inevitably about how bloodsucking lawyers are victimizing poor l’il multinational corporations like Mickey Dees?
It was propaganda. The “bloodsucking lawyers preying on innocent corporations” story is a creation of the business lobby, which has, for decades, argued that it should be immune to legal consequences when it harms or kills the public. The cause of “tort reform” is, in actuality, a corporate charter of impunity.
It worked. Over the past four decades, corporations have steadily whittled away the public’s right to civil justice, no matter how egregiously a corporation behaves. The main mechanism for this was the expansion of binding arbitration, a 1920s-era law that initially allowed big companies to agree to have their contractual disputes worked out by a mediator, rather than going to court.
Since the 1980s, a series of Supreme Court decisions have steadily expanded binding arbitration, allowing corporations to add “arbitration waivers” to their terms of service, employment contracts and other non-negotiated boilerplates. Today, the mere act of removing some shrinkwrap or clicking a link can result in the permanent loss of your right to sue, no matter how badly a company treats you.
Instead, your grievances will be heard by a corporate arbitrator, a pretend judge who is paid by the company that wronged you. Your case must be heard in isolation, and not part of a class action. The proceedings are secret, and even if you win, you don’t set a precedent for others who are similarly wronged. It’s “a justice system just for corporations.”
American corporations pushed the expansion of binding arbitration waivers as a get-out-of-court-free card, and for many years, it worked. Remember when Wells Fargo forged millions of its customers’ signatures to fraudulently open high-fee accounts in their names? The company argued that because the forged agreements included arbitration waivers, those customers couldn’t sue over the fraud:
Unsurprisingly, Trump loved binding arbitration. One of his first acts as president was to strip nursing home residents of the right to sue, which was great news for the nursing homes that murdered patients by abandoning them to covid:
(Older voters love the GOP, but it sure as hell doesn’t love them back.)
Forced arbitration wasn’t just a matter of civil justice — it was also a matter of economics. As Lina Khan and Deepak Gupta showed in their 2016 American Constitution Society paper “Arbitration As Wealth Transfer,” “Forced arbitration clauses are a form of wealth transfer to the rich”:
But the business leaders who bankrolled the forced arbitration epidemic were — characteristically — overconfident. It turns out that arbitration has weaknesses. It’s possible to do mass arbitration — to automate filing arbitration claims by thousands of corporate victims, which triggers hundreds of millions of dollars in arbitration fees, which the company is on the hook for, win or lose.
Uber was one of the first companies to discover this, when thousands of drivers brought arbitration claims at once. Not only would Uber have to pay for arbitrators in each case, but because arbitration decisions do not constitute precedents, it would have to argue each case, over and over again, even if it won. The company surrendered and paid drivers $146m:
Something wonderful and wild started to happen. The companies that had argued for decades that binding arbitration was, well, binding, began to argue that arbitration waivers were unconstitutional, despite the precedents that they, themselves had bankrolled, at enormous expense.
The poster child of arbitration buyer’s remorse is Intuit, a company that has stolen hundreds of millions of dollars in tax-prep fees from the poorest Americans by tricking them into fake “Free File” products using dark patterns on its website.
Intuit is now facing arbitration at scale — more than 100,000 claims — and a court has ordered them to hire arbitrators to hear each and every one of them. After all it was Intuit — not its customers — who put the arbitration clauses in its terms of service, claiming that court cases were a bad way to resolve their disputes:
Which brings me back to McDonald’s, hot coffee, and juicy stories about giant corporations being abused by the courts.
Have you heard about the Geico STD judgment? A woman caught an STD from her then-boyfriend when they had sex in his car. She won a judgment against him for $5.2m. Geico insures his car. A court has ordered Geico to pay that judgment.
It’s not a court that ordered Geico to pay the judgment — it’s an arbitrator. Geico is one of the companies that forces its customers into arbitration. Why would an insurance company want arbitrators to hear cases about its refusal to pay claims, rather than judges?
I mean, duh. Insurance companies have a long, dishonorable tradition of taking your premiums every month, then stranding you when you actually experience an “insured event,” arguing that the obscure, obfuscating language in their contract doesn’t cover your losses.
The real Geico STD story is this: Geico demanded that the case be heard by its arbitrator, who ruled against Geico, because Geico’s insurance terms did cover this event. Now, Geico is claiming that the arbitration it insisted upon “violates the company’s due process rights” and that its own arbitration agreement is unenforceable.
The case that’s being reported on isn’t about the $5.2m award for the STD. That happened way back in 2021. The case that’s in the news this week is a court telling Geico that when it forces its customers into arbitration, it has to abide by the arbitrator’s decision, even in those rare instances in which the arbitrator finds against the company who pays their fees.
But you wouldn’t know it from the coverage. All this stuff about arbitration is buried way down in the story. The headline is: $5.2m judgment for a venereal disease!
This is McDonald’s Hot Coffee 2.0. Someone pitched this story, and the pitch emphasized the poor, downtrodden corporation (Geico is owned by Warren Buffet and has $32b in assets) — not the fact that Geico is reaping what it sowed. The real story here is: “Corporation seeks to replace civil justice system with a kangaroo court, and gets kicked by its own kangaroo.”
Incidentally, if you miss Adam Conover’s “Adam Ruins Everything” and you have a Netflix password, check out “The G-Word,” his incredible new show about regulatory competence and the deadly threats it holds at bay:
[Image ID: The Adam Ruins Everything title card for ‘The Hot Coffee Case.’ It is a split panel with Adam Conover on the left at a judge’s bench, banging a gavel, and a confused Hamburgler on the right, in the witness box. They are separated by the center of the ’M’ in the McDonald’s ‘Golden Arches’ logo. Superimposed over this separator is the Geico lizard.]
Remember when they called us “Human Capital Stock?”
The for-profit adoption/fostering industry is so fucked. Evangelical Christians have played a hugerole in it, too; from the early 2000s to until around the mid-2010s, there was this huge push in the American Evangelical sphere to adopt babies and children from foreign countries as both a form of white Christian saviorism and to swell the numbers of the Evangelical movement.
There ended up being a lot of controversy surrounding the movement because it became very corrupt as there was lots of money involved. It turns out that many of the “orphans” these Evangelicals adopted weren’t actually orphans at all; they still had one or even both parents alive (and/or an extended family) and were just in an orphanage because their families couldn’t currently provide for them. Rather than provide money to these needy families so they could take their children home, these adoption agencies paid off officials (using money provided by the prospective adoptive parents, who tbf were usually in the dark about this) so they could bring the child to the United States and give them over to their new adoptive family.
There is so much corruption regarding inter-country adoption and there were so many scandals involving foreign children being abused by their American adoptive parents that many countries have actually cut off or severely limited adoptions to the United States. The number of foreign adoptions has dropped significantly since the early 2000s, not because of lack of interest but because other countries are rightfully wary of American for-profit adoption agencies.
And guess what? The exact same thing happened domestically prior to Roe v. Wade and the legalization of abortion and the invention of the birth control pill, along with second-wave feminism and the growing acceptance of single mothers and better working conditions for women (who can now work and support their children, even if it’s difficult). Google “the Baby Scoop Era.” Prior to these changes, single women would get pregnant and then basically be forced to give up their babies for adoption.
It’s pretty clear that Republicans want us to go back to that era, hence the fucking terrifying “domestic supply of infants” line. They want women to pump out babies who will then be adopted by Evangelical/conservative families and (hopefully) become Republican voters.
Well this language in the draft bodes very ill for ICWA and tribal sovereignty rights. ICWA, a law formed in response to the cultural genocidal policies of the US government where native children were taken from their families, is one of the most hotly contested in the courts right now. It’s as much of a judicial hot button as abortion rights and is seeing constant challenge with big oil legal teams and right wing think tanks like the Goldwater Institute bankrolling representation for these cases. Haaland v. Brackeen is set to be heard the the Supreme Court this term, challenging ICWA on the basis of racial discrimination and blatantly ignoring the shocking historical context and the legacy of abuse surrounding native children’s ‘adoptions’. Also conveniently pretending that ICWA based on racial identity instead of the legal definition of a sovereign citizen.
ICWA has come under intense scrutiny because of the shady and unsettling ethics of the for-profit, religiously motivated US adoption market. Because of Roe and International adoption restrictions for the already listed reasons, the US adoption market has—to put it in the worst terms—a supply problem when it comes to babies. Specifically, white-passing babies. Yeah, it’s gross. The adoption industry in the US is actively working to ensure the cultural perpetuity of the white, the wealthy, and the religious. For anyone not in that category, the idea of this goal shaping national law is deeply dystopian.
ICWA is also seen as the easiest path towards dissolving tribal sovereignty altogether, opening up native lands for oil and large business development. A businessman suing to develop on tribal land doesn’t exactly provide the same political cover as two white, well-off people crying on TV, claiming ICWA is tearing their family apart with racial discrimination, as these cases are often framed in the media.
It really cannot be overstated exactly how much lasting harm the Roberts court will cause in these upcoming rulings. The structural weakness of the senate as a legislative body, especially in the context of increasing polarization, ensures that any laws that might ameliorate the effects of these rulings will die on the floor. Executive orders have their uses but we’ve seen EOs with actual case precedent get struck down as unconstitutional by the courts during the pandemic, EOs that demonstrably fit within the authority of the executive branch! So what hope is there for any EO that might even just hint at overreach? This country is about to look drastically different, very quickly.
Sometimes, a tiny change in the political process comes along that makes you realize just how far things have come — a change that’s both substantive and symbolic. Something like this terse, six-paragraph memo from the FTC, a deceptively anodyne wrapper for an explosive moment:
Here’s the crux: “The FTC and DOJ will host a series of listening forums to hear from those who have experienced firsthand the effects of mergers and acquisitions beyond antitrust experts, including consumers, workers, entrepreneurs, start-ups, farmers, investors, and independent businesses.”
If you aren’t chest-deep in weird antitrust lore, this probably seems like it’s par for the course. But believe me, this is a hell of a moment — a moment of restoration, a return to a vital, long-dormant principle in American governance: the idea that corporations should not be allowed to ruin the lives of the people around them.
This was the idea behind antitrust in the first place. As Senator John Sherman said to Congress as he labored to pass his landmark antitrust law in 1890: “If we will not endure a King as a political power we should not endure a King over the production, transportation, and sale of the necessaries of life.”
“If we would not submit to an emperor we should not submit to an autocrat of trade.”
This was the foundation of American antitrust: the idea that companies of a certain scale would, by dint of that size, be in a position to exercise the autocratic control of a monarch, and return America to a tyrannical monarchy cloaked in the pretense of industry.
For nearly a century, this was the bedrock of antitrust enforcement, the idea of “harmful dominance” — that companies could attain a scale that made them a danger to the very idea of democratic control and legitimacy.
Rich people seethed and chafed and schemed to overturn this. They wanted to rule as if they were kings, wanted to avoid the scourge of what Peter Thiel calls “wasteful competition” (“competition is for losers” — P. Thiel). They bankrolled and promoted a deranged conspiracist named Robert Bork — Nixon’s solicitor general — who advanced a truly bizarre theory of antitrust.
Bork was a conspiracist, whose book “The Antitrust Paradox” maintained the historically unsupportable nonsense that what Sherman, Clayton and the other legislators behind America’s antitrust laws really wanted was to block “harmful monopolies” and leave the “efficient monopolies” to grow and rule, as benign kings:
Now, this is untrue. It’s not just untrue, it is unhinged. No reading of either the laws in question or the debates preceding their passage supports this idea. It is a fantasy, alternate history. A lie. But it was a convenient lie, because if it were true, then all the rich people promoting Bork’s fringe theory could create monopolies and rule as kings.
Ronald Reagan bought it. After a failed bid to put Bork on the Supreme Court — he failed his confirmation hearing so spectacularly that anyone who self-immolates in DC is said to be “borked” — Reagan adopted his antitrust theories. They spread around the world thanks to other monsters of the era, Thatcher, Mulroney, Kohl, Pinochet.
The idea infected the judiciary: the cushy Manne seminars, held every summer at a luxury resort, flew in 40% of the Federal bench for indoctrination seminars on Bork’s theories. These judges learned that the only people who should be consulted on antitrust matters are economists, specifically the kind of economist who trades in the kinds of highly abstract, inscrutable mathematical models that Bork and his University of Chicago colleagues specialized in.
Whenever a merger was in question, the companies could pay a Chicago economist to build a model that proved that the merger was “efficient” and thus good for “consumer welfare.” If that merger resulted in prices skyrocketing — the one thing “consumer welfare” was supposed to concern itself with — those same economists could be paid to produce a new model to prove that the price increase wasn’t the result of a monopoly — it was due to oil prices, or labor prices, or the phase of the moon.
Pre-Bork, everyone who was harmed by a monopoly had standing to seek redress from a regulator. If monopolies resulted in pollution, or unsafe working conditions, or corruption, or the annihilation of a city’s character or a town’s way of life, the people affected could tell their stories to a regulator and expect that their experiences would be factors in the calculus as to whether to prosecute the monopoly.
But after Bork, the only people whose input mattered was Chicago-style economists whose mathematical models couldn’t be interrogated by laypeople. They became court sorcerers to the competition regulators, and when petitioners came before the regulator, they would slaughter a goat, read its steaming guts, and pronounce that “consumer welfare” was doing fine. If the petitioner had the temerity to say that they read something different in the offal, the sorcerer could smirk and dismiss them: “Look who thinks he can read the economy in the guts of a goat? He didn’t even get a economics degree from the University of Chicago!”
For 40 years, antitrust has been a coma, sleeping while monopolies formed in every sector, destroying our planet, our regulatory integrity, our national prosperity, our public safety and the confidence of people in their democracies.
But as Stein’s Law has it, “If something cannot go on forever, it will stop.” Something has to give. A new crop of “neo-Brandeisians” — lawyers, economists, activists, workers — has sprouted, insisting that Bork’s ideas have failed us and that they need to be set aside.
One of the most prominent of these is Lina Khan. Today, Khan is the chair of the FTC. Five years ago, she was a third year law student (!), whose landmark law review article, “Amazon’s Antitrust Paradox,” was a scorching indictment of Bork that tore through legal circles and upended orthodoxy:
Khan hasn’t been shy about her plans to restore American antitrust to its roots as a doctrine of economic liberty, in which workers and small business-people do not have the course of their lives determined by Sherman’s “autocrats of trade.”
She and the other top Biden antitrust enforcers — Tim Wu in the White House, Jonathan Kanter at the DoJ — worked to produce the Biden executive order on antitrust, a genuine landmark document specifying dozens of specific actions that the admin would take to blunt corporate power. Less than a year on, they’ve hit every milestone in that document.
In January, the FTC and DoJ announced that they would be reviewing the agencies’ merger guidelines — again, something that sounds like business as usual to a layperson but really marks an enormous shift in American politics. The new guidelines will make it much harder for big companies to grow by merging with each other or gobbling up little businesses before they can become competitors.
And now there’s this week’s hearings, in which the FTC and DoJ will hear from “who have experienced firsthand the effects of mergers and acquisitions beyond antitrust experts, including consumers, workers, entrepreneurs, start-ups, farmers, investors, and independent businesses.”
With the exception of “consumers,” these are the people who, for 40 years, have been laughed out of the room by antitrust enforcers. The people who have been told that they have nothing to say when it comes to the way that giant corporations undermine our quality of life, freedom of action, and economic chances.
This may sound like normal activity for a competition regulator (because it should be normal), but this is extraordinary. For the first time in a generation and a half — in ten presidential administrations — everyday people will get a say on whether corporate power should be blunted.
This is huge.
[Image ID: Norman Rockwell’s WPA painting ‘Freedom of Speech,’ depicting a working-class speaker rising to speak in a white-collar crowd at a town meeting.]
