_______________ TIPPING THE ANTITRUST SCALES BY ANDREW LEONARD (03/17/99)
	Andrew Leonard's article on the intersection of law and economics, the Olin Foundation and the prospect of the D.C. Circuit's review of any decision in the Microsoft case is an important contribution to the understanding that law is not decided by neutral and detached magistrates in the fashion we hope. One area that Leonard could have delved into that dovetails with some of the other reporting Salon has done is the important role that conservative Federalist Society law clerks -- particularly those affiliated with groups funded by the Olin Foundation and other conservative think tanks -- play. Many of the conservative Reagan appointees Leonard discusses use membership in the Federalist Society as an important hiring criteria. Law and economics (as well as other more reliably conservative ideas) is a staple of Federalist thought. The combination of having two or three young, ideologically motivated clerks in chambers likely has some effect on appellate review. That said, there is more to the overwhelming law and economics boom in antitrust law than political leanings and all-expenses-paid junkets. As the article alludes to, Chief Judge Edwards and Judge Wald, solidly liberal Carter appointees, have been on panels that reached results favorable to Microsoft. Have they merely been captured by a well-funded conservative cabal? Probably not. Instead, this is one more example of how conservative legal thinkers, in part because of financial resources and organizational skills, and in part because of the power of their ideas, now dominate legal discourse. The best analogy is "originalism" and constitutional interpretation. Originalism, which like law and economics holds itself out as the most "neutral" and "unbiased" form of interpretation, is actually of relatively recent vintage. However, through force of will (and fairly persuasive arguments), Justice Scalia and dozens of lower court judges and scholars have made it a virtual necessity for any serious constitutional scholar to consult original meaning and history. As Jeffrey Rosen wrote in the New Republic two years ago, "We are all originalists now." Even liberals like Ronald Dworkin, Cass Sunstein and Michael Perry no longer dispute that originalism is necessary to interpretation, although they draw fundamentally different conclusions from original texts and original meanings than conservatives. Perhaps this is the best path for law and economics in the antitrust field as well: recognizing it as a valuable tool, but allowing people (as apparently the George Mason program does not) to draw different conclusions from it. -- Peter Friedman Chicago I'd like to extend my highest compliments for Andrew Leonard's article on Microsoft and the federal appeals court. I have become unaccustomed to the quality of research and manifest understanding of the subject exhibited by his article. He's set journalism back at least 10 years, to the days when real journalists worked for a living instead of opinionating on the Sunday circus. Congratulations to Andrew Leonard and to Salon. Now, what can you do for encores? -- Tom Langston Lancaster, S.C. The small group of people who have enormous power to decide the fate of everyone else is the Department of Justice. Microsoft has no power over me. I buy their products or I don't; that's it. Whereas the Department of Justice can ruin me or the company I work for just on the political whims of the moment. And I can't simply tell them to take a hike, as I can with Microsoft. The real reason Gary Minda and others are upset with the law and economics approach is that any judge with a solid grounding in economics will laugh at most of the antitrust crusades. These are usually instigated by companies who have lost in honest marketplace competition, and want the government to alter the outcome via force. Minda is scared that educated judges will see through their charade of "social justice" that harms consumers more than any supposed monopoly. -- Tom Biggs The unrebutted allegation that law and economics programs "aren't scholarly enterprises at all; they're hired propagandists" is an especially weak conspiracy theory, with ad hominem guilt-by-association substituting for any concrete evidence. Top law schools do not have to be bribed to create law and economics programs: They fund these programs because they are legitimate and useful interdisciplinary academic pursuits. Does anyone seriously believe that a $3 million donation would induce the law school at the University of Chicago to create, say, a "law and Scientology" program? Richard Posner (and Aaron Director and Ronald Coase before him) performed the work that started the field decades before conservative foundations infused the area with money. In 1992, the Olin Foundation gave me $8,000 to study law and economics at the University of Chicago without making a single inquiry into my political orientation, much less my contribution that year to Bill Clinton's campaign. If the Olin and Scaife foundations are funding these programs as part of a campaign of political domination, they surely have better ways to target their money. As Leonard grudgingly admits in an aside that he then proceeds to ignore, Law and Economics is politically neutral. Law and economics pioneer Guido Calabresi was appointed to the federal bench by President Clinton, and Stephen Breyer was known in the community for his economic analysis of regulatory law long before Clinton named him to the Supreme Court. Nothing about this movement dictates laissez faire results, much less a win for Microsoft: Witness the fact that Robert Bork, one of the two early Law and Economics scholars Leonard names, has come out publicly against Microsoft. Both plaintiffs and defendants in antitrust cases rely heavily upon economic experts in making their cases, and it can hardly be a bad thing that judges have the option of receiving a three-week course in microeconomic theory before passing judgment on such cases. Or, if it is a bad thing, there's surely a better argument against it than that Richard Melon Scaife gives money to an organization that partially funds it. Leonard presents no evidence to support his insinuation that the George Mason University seminar is really an indoctrination into Scaife-think, and Salon should do better by its readers. -- Ted Frank Los Angeles
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