So, the judge in the Microsoft case has appointed a "mediator" to arrange a "deal" in the matter. And guess who he has picked for that role? None other than Richard Posner, the only man who has done more to KILL antitrust in America than Robert Bork, the fruitcake who was, luckily, defeated some years back in his bid for a seat on the Supreme Court.
Posner was at the Federal Trade Commission when I knew him -- I was an aide to the chairman then and he was in the office of one of the agency's members, Philip Elman -- and his agenda then as now was simply to stymie all antitrust enforcement. From the FTC he went to the University of Chicago -- citadel of pro-monopoly "economic" theory in America -- and, with the arrival of the Reagan presidency, he was appointed to the 7th Circuit appeals court in Chicago.
Regularly churning out reams of books and articles denouncing antitrust over the ensuing years, he ultimately became the chief judge of that court and, in the process, made it the most pro-monopoly tribunal in America. If the White House is captured by the Republicans next year, he'll undoubtedly be appointed to the Supreme Court, wreaking even more havoc than Bork would have wrought.
Posner has a simple "remedy" for all antitrust cases -- dismiss them. That's what he and his 7th Circuit gang of judicial thugs in Chicago have been doing now for a couple of decades. If you want to know what he's going to do tomorrow, look at what he's BEEN doing for all these years. How many antitrust plaintiffs have won in his court since, say, 1981? How many jury verdicts awarding serious damages to the private plaintiffs have he and his court sustained? How many have they overturned? In how many antitrust cases has he or his court upheld a "structural" remedy? Somewhere between zip and zilch. This Posner star chamber in Chicago is the Bermuda Triangle of U.S. antimonopoly policy -- a black hole into which serious antitrust enforcement has routinely sunk without leaving even a bubble behind.
... Alfred Foer of the so-called American Antitrust Institute in Washington, was on TV a couple of nights ago blubbering something about how "creative" Posner is in antitrust. Creative?! The only thing Richard Posner has ever "created" in antitrust is rubbish-pile of hollow sophistries that have been used by his blockheaded judicial colleagues to kill the nation's single most successful economic policy.
To repeat what I said earlier about allowing old-line Reagan holdovers at the FTC to continue killing the cases there, giving Posner the mantle of "mediator" in the Microsoft case is comparable to putting Jack the Ripper in charge of the girl's dorm.
Charles Mueller is editor of the Antitrust Law & Economics Review, P.O. Box 3532 Vero Beach, FL 32964; email cmueller@metrolink.net. (c) 1999, Antitrust Law & Economics Review, Inc. Reprinted by permission.