Department of Injustice Should Drop Lawsuit against Microsoft
By Robert S. Getman
Forty years ago a unanimous Supreme Court declared: The historic phrase 'a government of laws and not of men' epitomizes the distinguishing character of our political society....[L]aw alone saves a society from being...ruled by mere brute power however disguised."
But there is an area of law in which this vital, seemingly incontrovertible principle has always been flouted: antitrust.
As Bill Gates is forced this week by the Department of Justice to defend Microsoft's success, imagine the following: An Olympics whereÑin an attempt to "level the playing field"Ñno athlete was allowed to score Â'too manyÂ' points or to win "unreasonably." Imagine, after the event, a winner being punished for having scored "too much" Ñ punished, at the behest of his competitors. Imagine that the very definitions of "too much" and "unreasonable" were left to the whim of each referee. Such "rules" would not "level" the field Ñ except in the sense of leveling it to rubble, rendering all the rules arbitrary and athletic achievement impossible.
America's antitrust "laws" function in this same, arbitrary manner. Yet they are increasingly being used against some of the most productive corporations in history, from Microsoft and Intel, to McDonnell-Douglas and Northrup-Grumman. For example, the Sherman Antitrust Act Ñ the centerpiece of the antitrust canon Ñ prohibits businesses from engaging in "restraint of trade." But whenever anyone chooses to contract with one person rather than another, that act can be considered "restraining" trade; for that reason, the Supreme Court found it necessary to re-interpret the law as banning only "unreasonable" restraints. But this merely pushed the question back one step: What is "unreasonable"? The stark truth is that there is no definition; its meaning is intentionally left to the discretion of government enforcers Ñ "the government of men."
The proscriptions of the Federal Trade Commission Act and the Clayton Act are as impossible to define as the Sherman Act's. The FTC Act bans "unfair" trade practices. But what is "unfair"? Both Acts seek to block monopolies. But "monopoly" itself is a legal term without precise definition. It is the rubbery notion of a company gaining "too much" of a market share. But what is "too much"? Since no producer puts a gun to buyers' heads, "too much" market share means "too many" willing buyers. (Do the federal and state attorneys-general now attacking Microsoft, for example, wish to disintegrate or break up Windows in order to keep "too many" willing customers from getting it? And if so, does that not indicate that productive achievement and freedom are the real targets and victims of antitrust prosecutions?)
Questions such as what is "unfair" competition, an "unreasonable" trade restraint or a "monopoly" are unanswered in antitrust Ñ indeed they are unanswerable. As Alan Greenspan wrote, antitrust "is a world in which the law is so vague that business-men have no way of knowing whether specific actions will be declared illegal until they hear the judge's verdict Ñ after the fact."
To define a law is to limit it; to make it deliberately undefined gives the state wide-open power to prosecute anyone, including the politically unpopular or envied Ñ i.e., power for some men to rule others. Thus, antitrust corrupts our ideal of a "government of laws and not of men." Indeed, this power-grab starkly spotlights the ugly purpose of antitrust "laws": they are designed by government officials Ñ and jealous competitors Ñ as guns put to the heads of "too successful" businesses.
Such "laws" violate our Constitution, under which ex post facto (retroactive) punishments are barred and undefined laws are declared "void for vagueness." These evils, inherent in antitrust "laws," are magnified by the extraordinary punitiveness of those "laws" Ñ which punish non-criminal violations with triple damages and criminal violations with seven-figure fines and jail time.
Our antitrust "laws" are truly lawless Ñ as well as un-American. Indeed, they are a form of "legalized" terrorism. As philosopher Ayn Rand observed, "the threat of sudden destruction, of unpredictable retaliation for unnamed offenses leaves men no other policy save one: to please the authorities without standards or principles. Anyone possessing such a stranglehold on businessmen possesses a stranglehold on the wealth and material resources of the country, which means: a stranglehold on the country."
Americans should recoil in horror at this vast injustice Ñ more, Americans should rectify it, on principle, by repealing all the antitrust "laws" and repudiating the "deuces-wild" legal terrorism they embody.Robert S. Getman, a business lawyer in private practice in New York City, is a senior writer for the Ayn Rand Institute in Marina del Rey, Calif. http://www.aynrand.org Britain, in surrendering control of Hong Kong to the Chinese, appeased a brutal dictatorship much as it had sixty years ago when Chamberlain capitulated to Hitler's Nazi tyranny. Britain justified this latest heresy by claiming that it was merely respecting the terms of a long-held lease with the Chinese government. A free country, however, is not obligated to respect any agreement with a dictatorship like China. Contracts can only be instituted between free men.
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