Jul 10, 2023
On June 29, The Capitol Forum’s Teddy Downey held a conference call with Robert Lande to discuss his recent article for the Utah Law Review, in which Lande discusses the use and rise of textualism in antitrust enforcement and gives an overview of what textualism means through an enforcement lens and provides analysis of important portions of two antitrust statutes: Section 2 of the Sherman Act and Section 7 of the Clayton Act. The full transcript, which has been modified slightly for accuracy, can be found below.
TEDDY DOWNEY: Good morning and thanks to everyone for joining us today. I’m Teddy Downey, Executive Editor here at The Capitol Forum. And I’m very pleased to be chatting with Bob Lande who is on the Board of Directors of the American Antitrust Institute and Venable Professor of Law Emeritus at the University of Baltimore School of Law. In a new article for the Utah Law Review, he discusses the use and rise of textualism in antitrust enforcement. And he recently gave a presentation to the FTC about textualism in merger enforcement. And thank you so much for doing this today, Bob.
ROBERT LANDE: Thank you so much for having me. It’s my delight to be here.
TEDDY DOWNEY: And before we get started, if you have questions for us, please email them to email@example.com. Or enter them into the questions tab in the webinar control panel and we’ll try to get to your questions sort of on the back half of the call.
And so, Bob, I just want to jump right in here. Can you please tell us generally about textualism? For listeners who aren’t familiar with it, it seems to be something we hear a lot about as important for Jonathan Kanter and Lina Kahn. And so I would love for you to tell us a little bit about that.
ROBERT LANDE: I’d be delighted to. Thank you again for having me. To begin with, I’m not a textualist. I don’t believe that textualism is the best way to interpret statutes. But at least five members of the Supreme Court are usually textualists in their decision making. And sometimes all nine justices use textualism, and so are many, many lower court judges.
So no matter what we as individuals think about textualism and whether it’s the best way to interpret statutes, it’s something we all have to take extremely seriously. I’m going to start by posing a question about textualism and antitrust. And hopefully during this conversation, I’ll answer that question.
We all know that textualism is a method of statutory construction, historically championed by Justice Scalia. And today it’s usually used by the most conservative judges. Does this mean that textualism will lead to more conservative decision making in the antitrust area by the courts? And the answer to this question is no. I’m going to attempt to convince you that the answer is an emphatic no. In fact, I’m going to try to convince you that the opposite is much more likely to occur, that antitrust progressives should embrace textualism because textualism should lead, if anything, to more aggressive antitrust enforcement.
This is because the Sherman Act, the FTC Act and the Clayton Act are all products of the progressive era. It’s not surprising that their precise language is very pro-consumer and very anti‑monopoly. Today I’m going to show you using textualism that by emphasizing the precise words of these statutes, textualism should actually be very good for vigorous antitrust enforcement.
I think we all know that a traditionalist approach to statutory interpretation analyzes a law’s legislative history and interprets the law accordingly, especially in cases where the statutory language is ambiguous. To a textualist, however, legislative history is completely irrelevant. Let me repeat that. It’s completely irrelevant. A textualist starts, and in almost all cases ends, with the precise words of the statute. Textualists first find out how dictionaries, especially English language dictionaries, and also legal dictionaries and treatises and cases of the period when the statute was passed, use the terms in question.
Tthen a textualist will stop. A textualist won’t read anything into a statute that isn’t a fair, ordinary and straightforward interpretation of the words and phrases in the statute. They don’t go beyond the text.
And third, textualists stress that judges shouldn’t impose their own policy preferences on the law, and judges shouldn’t make up exceptions that aren’t expressly in the text of the statute. Judges should just fairly interpret the exact words that Congress chose to include in the statute.
Justice Scalia wrote a 550 page book on textualism that contains a lot of complications, but none of these complications are relevant to what I’m about to tell you. This book also contains lists of the English language dictionaries and legal dictionaries and treatises that Justice Scalia considered the most useful and authoritative for various time periods. I used Justice Scalia’s lists during my research on Section 7 of the Clayton Act and Section 2 of the Sherman Act. So that’s my very brief introduction to textualism.
TEDDY DOWNEY: Okay, great. So very interesting background on textualism. And now I would love to get into how textualism would affect merger analysis based on what you’re saying.
ROBERT LANDE: As everyone on this call knows, Section 7 of the Clayton prevents mergers, the effects of which ‑‑ and I quote – “may be substantially to lessen competition or to tend to create a monopoly.” I’m going to focus first and mostly on the “may be substantially to lessen competition” clause of Section 7.
All of Justice Scalia’s preferred English language dictionaries defined “may” at length. If anyone’s interested in the full definitions of “may” during the appropriate time period dictionaries, they’re in that article Teddy referred to that’s in the Utah Law Review. I’m happy to send anyone who wants it a copy. However, the main definitions of “may” in these dictionaries that Scalia approved of from the relevant time period are brief and are all similar.
I’ll just read you the definitions of “may.” “To indicate possibility with contingency.” “Expressing objective possibility, opportunity or absence of prohibitive conditions.” “To have the power, to be able, opportunity, possibility, as you may be right.” “ Contingency, to be contingently possible.”
Justice Scalia’s preferred legal dictionaries and treatises didn’t add anything to what I just told you. So all of Scalia’s sources defined may, I think, the exact same way we defined it today as a possibility or contingency. None used anything resembling a term like “will,” “is” or “is likely to”. Yet, all of these terms have been substituted for the “may” language by judges in merger decisions.
Let me just give you some examples. In United States vs Baker Hughes, then Circuit Court Judge Clarence Thomas affirmed a district court’s conclusion that, “It is not likely that the acquisition will substantially lessen competition”. Other more recent cases have been similar.
One case required that the effect of the merger “is to substantially lessen competition or to attempt to create a monopoly.” Another case used a three part test for evaluating mergers and required, first, the FTC “must establish a prima facie case that the merger is anticompetitive.” Many circuits have used the “is likely to” formulation. The government must show that the proposed merger is likely to substantially lessen competition. In fact, roughly half the circuits recite the “may” language that is in the statute, and roughly half the circuits use something different like is, will or is likely to.
If we step back and think in a purely theoretical sense, , any merger could end up, after a crazy chain of events, substantially lessening competition. If Congress had wanted to, it could have prohibited every merger. But it did not do this. Congress didn’t want us to interpret “may” in the theoretical sense to stop every possible merger. I think that’s clear.
So we’re left with a meaning of “may” that goes beyond the theoretical possibility that in some way it could lead to something anticompetitive. But on the other hand, Congress did not choose to include a term like “is likely to” or “will” substantially lessen competition. So it’s admittedly difficult to articulate this in-between position. But I suggest that courts should interpret “may” to mean, for example, only a modest probability or a reasonable possibility. And then perhaps add something like, “but not necessarily an equally likely probability” that it will substantially lessen competition.
Thus, textualist analysis shows that some merger case law has deviated from congressional intent. These court standards for judging mergers should change.
The second merger point I’d like to discuss is whether there should be an efficiency defense in merger cases. That’s kind of a mind-boggling question. But, as you know, Section 7 of the Clayton Act does not contain an express efficiencies defense. Shouldn’t that end the question for a textualist? We all know that the 2010 federal merger guidelines contain more than two pages of a structured rule of reason on how the enforcers will evaluate alleged efficiencies that will be generated by a merger. And today, some conservative critics say that the enforcers and the courts only rarely find that an otherwise anticompetitive merger is justified by efficiencies. Even though the conservative critics believe that mergers often should be justified by efficiencies.
I don’t know of any empirical evidence showing how often efficiencies make a difference, either at the enforcement level or in the courts. If anyone knows of any empirical work on the subject, I would love to hear about it. I’m trying to do some of my own analysis in this area.
I’d also love to find out from experienced merger practitioners how often efficiency arguments have made a difference for either the enforcers or in court? It’s a topic that I’m continuing to do research in.
Regardless, how would a textualist approach this question of what do we do with efficiency arguments in a Section 7 case, in light of the fact that Section 7 does not contain an explicit efficiency defense? Straightforwardly, Congress decided not to include an efficiency defense in merger cases. It didn’t do it in the Cellar‑Kefauver Act. It didn’t do it in the Clayton Act. Interestingly, Congress did include an efficiency defense in the Robinson‑Patman Act, which, as you know, technically is part of the of the Clayton Act. So Congress knew how to write an efficiency defense. It just chose not to do one in the Clayton Act or Celler‑Kefauver Act.
To a textualist this should be a powerful argument against having an efficiency defense in a merger case. And if the conservative critics are right and the enforcers and the courts only rarely accept efficiency arguments, then this shouldn’t make all that much difference. So if we went with this textualist conclusion and completely eliminated efficiency defenses in merger cases, if the conservative critics are right, we wouldn’t lose that much efficiency.
However, conservative textualist courts surely would be open to the argument that there is an implicit efficiencies defense in the language of Section 7. To examine this issue, let’s separate the “maybe substantially to lessen competition clause” from the “or tend to create a monopoly” clause.
One way to think about these two phrases in Section 7 could be in terms of coordinated effects analysis and unilateral effects analysis of mergers. Mergers analyzed under the “may be substantially to lessen competition” prong of Section 7 could certainly argue for an implied efficiency defense. This is because defendants might be able to prove that the merger would lead to efficiencies that are so large that they would lead to stable or even to lower consumer prices despite any increase in market power. This would involve a variation of the Williamsonian approach to the merger efficiency tradeoff, which I can go into more detail if anybody’s interested.
In mergers challenged because their effects “may be substantially to lessen competition”, defendants could argue that the merger would not substantially lessen competition because competition would remain stable or would even increase due to the stable or lower prices the efficiencies will enable the post-merger firm to charge.
The required efficiencies to do this, to stabilize or even lower prices, usually it would be enormous. But defendants in cases brought under this prong of Section 7 might be able to demonstrate that even under a textualist analysis, they deserve an efficiencies defense.
But what about mergers challenged under the “tend to create a monopoly” language of Section 7? I checked the word tend in Scalia’s preferred dictionaries and found that in 1914 it was defined the same way it’s defined today. Surprisingly, so far, I found very few merger cases interpreting “tend” to create a monopoly. The courts almost always just recite the statute. And they only explain what “may be substantially to lessen competition” means, but they almost never explain what “tend to create a monopoly” means.
The best case I found that defines “tend to create a monopoly” is really old, the 1947 Supreme Court International Salt case. It’s a tying case, but it was brought under Section 3 of the Clayton Act. And Section 3 use of “tend to create a monopoly” should be similar to what Congress meant in Section 7 of the Clayton Act.
Let me read you what this early case had to say about tend to monopolize. “Under the law, agreements are forbidden, which tend to create a monopoly, and it is immaterial that the tendency is a creeping one rather than one that precedes at full gallop. Nor does the law await arrival at the goal before condemning the direction of the movement.
Of course, it’s a very old case and I haven’t finished looking for recent merger cases that actually explained what the court meant by tend to create a monopoly. If anyone listening to this knows of any recent case law where the court actually explains what it means by tend to create a monopoly, I’d be very grateful if you could tell me about it.
Regardless what the tend language means, to a textualist the language of Section 7, for any case brought under the “tend to create a monopoly” prong of Section 7, does not have an efficiency defense. And there’s no way to have an implicit efficiency defense under this clause. To a textualist, Section 7 should not allow efficiency defenses in any case brought under the “tend to create a monopoly” clause. That is, even if you can show that the merger would tend to create an efficient monopoly, that merger should still be blocked by Section 7.
To summarize, conservatives can make an argument that there should be ‑‑ under textualist analysis‑‑ that there should be an efficiency of defense in the “may be substantially to lessen competition” prong of Section 7. But I don’t see how they can do it under the “tend to create a monopoly” prong of Section 7.
TEDDY DOWNEY: I want to actually stay on this for a quick second because I guess we’re kind of getting into the definition of competition, right? If you’re saying that efficiencies is part of that. And I guess I would just push back, I don’t really see efficiencies having anything really to do with, you know, I mean, it seems like part of it. But I’m having a little bit of a hard time reading it into the “may tend to substantially lessen competition”. So is it the definition of competition that’s sort of open to debate, to allow it in there? How do you fit it in there? If you could just dig a little bit into that.
ROBERT LANDE: Sure. I’m delighted to. Here’s what a conservative textualist judge would reason, I believe. If defendants can show a tremendous efficiency from the merger, a tremendous efficiency, lowering of fixed cost and lowering of variable costs, this could cause them, despite any increase in market power, not to raise prices. After all, if your costs go down by 50 percent, then you’re probably not going to raise prices. The economists can work out the details. In fact, I’ve coauthored three articles with economists working out when will price go up despite a tremendous efficiency saving, despite a certain increase in monopoly power, depending if it’s an oligopoly situation, competition to monopoly, and so on. All this stuff that economists really think about. But if you have a fantastic efficiency saving from a merger, then maybe, despite any increase in market power, prices will not go up.
TEDDY DOWNEY: But effectively, it’s sort of a Chicago School reading of the definition of competition rather than like, well, if I’m just looking at ‑‑ you know, you’re taking one competitor off the board, you know, does it ‑‑ you know, you’re still thinking of a competition on price specifically and you’re looking at price as kind of the primary indicia of whether it’s competition. So I see what you’re saying. But if you go to a definition of competition back when the law was written, was it really focused on price like that? I mean, I get how a conservative judge now could read that into it. But if you’re really doing structural, I mean, if you’re really doing textualism, it doesn’t seem like a ‑‑ Chicago School seemed like it came after these laws. So I’m curious what you’re thinking that would be.
ROBERT LANDE: I’m embarrassed to say I did go back to all those dictionaries and look up the definition of competition, but I haven’t gotten around to actually working with them yet. Maybe when I look at those definitions of competition, I’ll find out that it’s all about the number of rivals and has nothing to do with the level of prices. But anyway, I’m giving you this work halfway through and I apologize for that.
TEDDY DOWNEY: No, no, no.
ROBERT LANDE: You might be right. Maybe they use competition in a different sense than we mean today. But I’m just trying to figure out how a conservative textualist might be able to incorporate an implicit efficiencies defense, at least in the first half of Section 7. I don’t see how they can do it in the second part of Section 7. But your question is extremely insightful. And you’ve given me am important project to work on – in fact, I’m going to do that right after we get off this call today. Because you could be absolutely right about that.
TEDDY DOWNEY: I mean, it’s interesting. I mean, you’re right about Robinson‑Patman, partly because there is an efficiency defense. It’s very specific. It’s very narrow. It’s very clear. And I just think, to your point, if they didn’t include it here, it just seems like they didn’t mean to include it. Because they could have if they wanted to. So that seems very compelling to me.
ROBERT LANDE: Just one final thing. When I started in the antitrust world, there were no efficiency defenses in merger cases. I came to the Federal Trade Commission as an attorney in 1978, and there were no merger efficiency defenses in 1978. In fact, efficiencies seemed to count against a merger. Firms ‑‑ this sounds mind-boggling ‑‑ would deny that the merger would lead to efficiency. I guess maybe they were afraid that if they admitted that the merger was efficient, it would allow them to take over in the market. So they would even sometimes deny that the merger would lead to efficiency. It was a very different world, but it may have been the world that Congress intended.
TEDDY DOWNEY: Well, I think looking at labor issues all of a sudden really flips it on its head. I mean, the executives used to get on these calls and brag about how many people they were going to fire.
ROBERT LANDE: Right.
TEDDY DOWNEY: And if you’re thinking about labor issues in your merger analysis, that’s not really going to be helpful to your deal.
ROBERT LANDE: Right. In fact, I understand the HSR form the FTC and the Department of Justice are in the process of considering or issuing will pay a lot more attention to labor issues. I think that’s exactly as it should be.
TEDDY DOWNEY: Yeah, the new HSR forms have got a lot of interesting stuff in there, including on labor. So very interesting to keep tabs on that, as a matter of fact, as it goes through the comment process and it’s finalized. But let’s move onto monopolization, which is my favorite area. A lot of people think I care a lot about mergers, which I do. I love mergers. I love analyzing them. But my favorite is actually monopolization. And I would love it if you could tell us how textualism would affect monopolization and attempted monopolization analysis.
ROBERT LANDE: Thank you. I’m delighted to do this. As everyone on this call knows, Section 2 of the Sherman Act, in relevant parts, simply makes it illegal to “monopolize” or “attempt to monopolize”. Nowhere does any part of Section 2 require anticompetitive conduct for a violation. Nothing in the text suggests any exceptions, such as an exception for an efficient monopolist.
So the key textualist questions are, how were the terms “monopolize” and “attempt” or “attempt to monopolize” in a phrase, defined when the Sherman Act was passed? All of the dictionaries of the period that Justice Scalia approved of defined “monopolize” virtually identically. They define monopolize as the same way it’s defined today, colloquially, without all the legal baggage the courts have added to it. They define it as simply to obtain a monopoly. Period. There was no requirement that a monopoly be obtained using anticompetitive conduct.
I’ll just give two examples from Scalia’s list of dictionaries because, well, they’re repetitive and they’re also boring if I just recite them to you. If you’re interested in all of the definitions, I’ll be happy to send you my article which contains them.
The Webster’s Dictionary of the period defined monopolize as, “to purchase or obtain possession of the whole of a commodity of goods in the market with a view to appropriate or control the exclusive sale of them”. The Oxford English Dictionary had a similar definition, “to get into one’s hands the whole stock of, to gain or hold possession of, to have a monopoly, to gain exclusive possession or control of.”
None of these old definitions required a firm to do anything wrong as it obtained its monopoly. Every firm that obtained a monopoly had monopolized. Period. I examined legal treatises and cases of the period, but they don’t add anything to what I’ve already said. I also analyzed the word “attempt” as it was used in 1890, both by itself and as part of an attempted crime. I checked Scalia’s preferred sources and found that the attempt also was defined the same way it’s defined today. An attempt required more than planning and preparation and not just trivial steps towards its completion. This means that if a firm intended to monopolize, and did more than planning and preparation, and undertook a serious step towards this end, it “attempted to monopolize” that market.
Section 2 contains no anticompetitive conduct requirement for an attempt to monopolize. Just like it contains no anticompetitive conduct requirement for monopolization. So no exceptions should be read into Section 2 by the courts. If a company made a serious attempt to monopolize the market, it should be found to violate Section 2.
As everyone listening knows, today the case law only imposes sanctions under Section 2 if a court decides that the firm engaged in anticompetitive conduct. Although the modern law in this area is clear, this law only really dates from 1966. Although, the precise date is a matter of opinion because a lot of the old monopolization cases are very murky.
This means that the Sherman Act, during the majority of its existence, from 1890 to let’s say 1966, didn’t clearly require anticompetitive caselaw. It’s only the more recent cases that clearly require anticompetitive conduct. So under a textualist approach, this more modern case law, this 1966 and more recent case law, especially Trinko, were wrongly decided and should be overturned.
Due to time constraints, I would like to talk for just a minute about the effects of textualism on attempted monopolization law. As everyone listening knows, today there’s a “dangerous probability” requirement for an attempted monopolization case. And empirically, it’s rare for a court to find that a firm illegally attempted to monopolize a market unless that firm had at least a 50 percent market share.
But under a textualist interpretation of Section 2, suppose a firm with a 40 percent or even a 30 percent market share was seriously attempting to monopolize a market. Isn’t such a firm often capable of seriously attempting to monopolize a market, even if it’s a long way from success? So textualism shows that the “dangerous probability” requirement for an attempted monopolization case should be abolished or at least modified. And, of course, the larger point is that attempted monopolization, like monopolization, shouldn’t have an anticompetitive conduct requirement.
So to finish with Section 2, where did the requirement that anticompetitive conduct is necessary for a Section 2 violation come from? It isn’t even hinted at in the text of the Sherman Act. One can make the argument that an efficiency exception is implicitly contained in the first clause of Section 7 of the Clayton Act. But it isn’t even implicitly in Section 2 of the Sherman Act. Shouldn’t we recognize that before textualism was widely adopted, conservative judges simply made up the anticompetitive conduct requirement because they thought that an anticompetitive conduct requirement was good policy? This is not textualism. In fact, it’s the opposite of textualism.
TEDDY DOWNEY: I want to stay on this a little bit because the definition of monopoly sounded like you needed 100 percent of the market. And so, would textualism, in that respect, be weaker, you know, if the definition of monopoly is like you have to control the whole thing or be trying to control the whole thing? I think the modern definition is more like you have enough power to control the supplier price of a good. Which I also think was also kind of discussed when they were coming up with these laws, but that Webster’s dictionary sounded worse or more difficult to achieve. So I’m curious, just to quickly get your thoughts on that.
ROBERT LANDE: That is an incredibly important question. First of all, what you’re saying wouldn’t affect an attempt to monopolize. Attempt to monopolize would be revitalized under textualism. But certainly monopolization would be cut back somewhat. There’s another doctrine of textualism that I didn’t mention, for lack of time, called the literalism doctrine where it says that courts shouldn’t take terms literally. This can be a way to fudge terms, or it can be just a common sense way that we interpret language.
For example, there was an 1895 monopolization case. I think it was the E.C. Knight case, where the defendant had a 98 percent share of a market. The Supreme Court called it a monopolist. So right after the Sherman Act was pased, 98 percent of a market was called a monopolist. And colloquially, you might say that’s close enough to being 100 percent. Let’s not worry about it. So, 98 percent, sure. Let’s not quibble.
Now, 80 percent, that’s a whole different story. That’s more than quibbling and taking the word monopoly literally.
But some of those early definitions, including the Oxford English Dictionary, define monopoly as including the ability to control a market. If you take that definition of monopoly, then you can go down to 80 percent like the modern case law. But if you don’t accept those early definitions of monopoly as including control of a market, then you’re right. It would limit monopolization cases with either 100 percent of a market or something very close to it, such as 98 percent. I don’t know how low a reasonable judge would go.
So the monopolization prong certainly could get cut back. On the one hand, there’d be no anticompetitive conduct requirement. On the other hand, the market share required would rise from 70 or 80 percent, all the way up, let’s say, to 95 percent. So the enforcers would have to rely more on the attempt to monopolize prong of Section 2.
TEDDY DOWNEY: Right. I think it really comes down to control of a market can be low. I mean, you get a monopsony study saying you can enjoy monopsony power 20, 30 percent of the market. So obviously, there’s some other, you know. So control of the market can be really a definition that creates a lot of leeway as opposed to that 100 percent threshold.
ROBERT LANDE: Absolutely. In fact, control of a market is almost exactly the legal standard we have today. We define monopoly power as power to control price or prevent entry. That sounds like control of a market, how a layperson would word a modern definition of monopoly power That’s exactly right.
TEDDY DOWNEY: So just taking all this together, I was wondering if you have any kind of concluding thoughts for our listeners, having engaged in this exercise of doing textualist analysis.
ROBERT LANDE: Sure. Returning to my initial question when I said textualism is usually used by conservatives, does that mean if we apply textualism to antitrust, we’ll get more conservative results? The answer is absolutely not. But does this mean that we’ll get more antitrust enforcement if judges use textualism in the antitrust world? My answer is that textualism should produce more aggressive antitrust decisions.
But this assumes that most textualist judges will be honest. But if a judge uses textualism but is dishonest and conservative and they want to evade textualist results, they can do so very easily. These judges could, just to use examples from mergers, write their opinion which say that they’re using the “may’ standard, say that they’re using the “may be substantially lessen competition standard”, but they could actually evaluating the evidence under the “will substantially lessen competition standard”. They could do this. It would be dishonest, but they could do this.
Or the judge in a Section 7 case or a Section 2 case could fudge the market definition in almost any way they want. They could say entry is easy, even if it’s not. A judge can always find a way to dismiss an antitrust case if they really want to. So we can only hope that most textualist judges will be honest and that they will reinterpret our laws in a way using textualism that gives appropriate deference to congressional intent.
At the beginning of this talk I asked whether textualism will lead to more conservative antitrust enforcement. I believe that the answer is clearly no. But will it actually lead to significantly more aggressive antitrust enforcement? I can’t make a prediction as to how much more aggressive antitrust enforcement will actually be.
TEDDY DOWNEY: I want to ask you a question. Again, if you have questions for us, please email us at firstname.lastname@example.org. Or you can enter them into the control panel here. We have a White House that has said, we have a competition order. We want to revitalize antimonopoly policy, competition enforcement. We have leadership at the DOJ and the FTC saying, we really want to go back to the statute. Tremendous focus on citing case law statute. How do you think textualism as an exercise differs or is similar or lends itself or how do you put it in context next to what we’re seeing from the agencies right now? Does it give a greater ability to try to push the law in a direction that aggressive enforcers would want to go? I mean, how do you sort of marry these two things together?
ROBERT LANDE: I think textualism does give the enforcers a path towards more vigorous antitrust enforcement, which is what they want. There are political risks. There’s no question about that. Suppose the FTC were to bring an attempted monopolization case against Amazon, or if you don’t like Amazon, pick another firm. And suppose they were to say we don’t require anticompetitive conduct. Or rather, the statute does not require anticompetitive conduct.
In fact, the FTC could say this is solely for cases brought under Section 5 of the FTCso there could be no private plaintiffs seeking treble damage liability, no criminal penaltiesSo it would be a no-fault monopolization case brought under Section 5 of the Federal Trade Commission Act. There would be tremendous political blowback on that.
I’m not a politician. Whether the Department of Justice or the Federal Trade Commission wants to undertake that risk, that’s up to them. Or whether they would be willing to say in a merger case, we believe this merger will tend to create a monopoly and we don’t believe it’s relevant whether that merger will lead to any efficiencies. Again, that would be a tremendous political risk. I’m not a politician. I have no idea whether that’s a risk that the enforcers should undertake.
TEDDY DOWNEY: And you mentioned you’re going to be following up, looking into a few more things, definitions and things like that. I’d be interested in what else along in this project you think is kind of going to help you reach any additional conclusions. Or what’s kind of the next leg of this sort of inquiry you have here?
ROBERT LANDE: One leg of it is to really focus on the “tend to create a monopoly” leg of Section 7. I’m not at all finished with the case research. There aren’t that many cases that even discuss it. And yet, if you just look at that language, it looks really good for plaintiffs. It looks good for aggressive merger enforcement.
I want to do more research on what the cases have to say on that. And then my advice to the enforcers might well be to bring cases under the “tend to create a monopoly” part of Section 7 and to explain to the courts what “tend to create a monopoly” means. It doesn’t mean the two firms merging must have an 80 percent market share. It just means “tend to create a monopoly”. If the enforcers can convince modern courts to use language like that old language that I talked about ‑‑ a creep towards monopoly is enough, it doesn’t have to be a gallop to a monopoly ‑‑ that would be wonderful.
I would also urge the enforcers, in their briefs, if they’re in a circuit which says the standard under Section 7 is that the merger “will” substantially lessen competition, to gently say to the judge, “Your Honor, let’s be a textualist. Let’s look at the “may” language of the statute, which many circuits do,” and to give those judges a nudge in the direction of going back to the statute.
Textualism should give the enforcers and judges an incentive to go back to the actual words of the statute. And if they consider those old definitions of possibility and contingency, hopefully, that will focus the judges on Congress’s original progressive ideas, and away from the ideas that have built up in the courts by a succession of conservative judges.
TEDDY DOWNEY: I can see the FTC and DOJ even bringing cases in circuits where the case law tends to use “may” also. I mean, that could be one effect of this is that you go back and look at where are the circuits that are more closely hewed to the original statute? And that’s where you sort of bring your cases and try to focus your attention.
I have a cynical question, which is textualism, some people ‑‑ and you mentioned this, I think, when you talked about sort of if you get a dishonest judge or an honest judge ‑‑ some people, cynical people, would say that this is basically silly. Textualism is basically a silly excuse for Scalia to do whatever he wants, to just end up getting a decision that is in line with his political views. And that’s really not a serious exercise. It’s a silly one. And it’s really just a way to get, you know, and they’ll come up with an excuse if they don’t like it or an exception or something. What’s your response to that? I mean, I’m personally very interested in doing this analysis. I think it’s very interesting and worthwhile. But what’s your take on the whole project of textualism being sort of not a serious thing or dishonest approach?
ROBERT LANDE: I think those cynics are certainly right to an extent. You look at the West Virginia v. EPA case where the Supreme Court invented out of whole cloth the major question doctrine. There had been an earlier quote from Justice Kagan saying “we are all textualists now”. But in the West Virginia v. EPA case, when the majority made up the major question doctrine Which holds that if it’s a major question, Congress has to be especially specific, especially directive. After the majority made that up out of whole cloth, Justice Kagan said they’re no longer being textualists.
Another example supporting what you just said concerns the most pro‑monopoly Supreme Court decision in history, Scalia’s opinion in Trinko. It is not a textualist opinion. Scalia does not go back to 1890 and try to ascertain what monopolize meant in 1890. He just announces, on the basis of nothing, that monopolies are usually really good. And that only in rare cases should we ever impose sanctions on them.
So Scalia, the champion of textualism, totally ignored it in Trinko. Scalia uses textualism when he wants to use it. But in Trinko, he totally ignored it. He didn’t even consider arguments like the ones I’m giving you today.. He just ignored them. So you may be completely right.
But going back to what I would do if I were an enforcer, I would hope that there are many honest textualist judges in office. So I hope that by going back to the original statutes and showing these judges the original definitions in dictionaries and legal treatises and cases of the period, an honest textualist would hold that Congress meant Section 2 to be a no-fault statute
TEDDY DOWNEY: Yeah. I mean, there is obviously, I think sort of a clear distinction between sort of honestly going back and looking at the statute and seeing what it says. And I think going back to this idea that if you look at the statute and look how the courts have deviated from that, if you want to pioneer a new path, you want to chart a new path, you stick to the wording of the statute and you bring cases and you just bring more cases and use that prosecutorial discretion to try to carve a new path for good law on the topic.
ROBERT LANDE: If you have a dishonest judge, there’s nothing you can do. Wen you have Clarence Thomas, who literally rewrites the statute, he changes “may” be substantially ” to “it will substantially” — I mean, there’s nothing you can do about that. You could imagine Justice Thomas, right before he turned in that opinion, having his law clerk say, “Excuse me, Justice Thomas, you’ve misquoted the statute”. And Thomas responding, “OK, I’ll change “will” to “may” and then let the opinion have the same conclusion. You can imagine that. But I sure hope most judges are not that dishonest.
TEDDY DOWNEY: Yeah. And the last question, I know you said this is sort of in line with this. These judges are sort of political people. I mean, they’re making policy. I think it’s pretty fair to say that’s going on all the time. Do you think at all that the conditions of the economy in a lot of these markets are so obviously problematic that it makes it a little bit harder to sort of, from a political standpoint, to sort of make excuses or deny these monopolization or monopoly efforts? I think about health care. From my standpoint, looking at a lot of health care cases that are making it past the motion to dismiss stage, which is not easy to do in antitrust cases, private plaintiffs in particular. And you’ve got these judges that are letting cases where I think it affects them. You know, it affects them. All right. I’m paying high prices for drugs and things like that. Does the reality and the politics of these markets at all, you know, shape the ability to sort of push this type of agenda and kind of push ahead with this project in this way? I’m just kind of curious to get your take on that.
ROBERT LANDE: As you know, there’s an old saying, the Supreme Court reads the election returns. I don’t know how true that is, but there may still be some truth to it. The old older view of what conservative judges did or what they mostly cared about would be to say, well, they’re free market conservatives. Whatever big business wants to do, a free market conservative would let them do.
But in recent years a lot of very conservative politicians, as you stated, have become more suspicious of the power of, at least, the large high tech platforms. And once someone becomes suspicious of the political and social power of the very largest, high tech platforms, maybe they can see that other companies, including health care companies and pharmaceutical companies, also may have undue power. So maybe we shouldn’t just bow down to monopolies the way the way many used to do. We should examine their behavior and status with more care.
Is it possible that some very conservative judges could say honestly, “There is no efficiency defense in Section 7. There is no efficiency defense in Section 2” These large companies are not sacred cows. Maybe they should be, if not broken up, at least subject to some kind of an antitrust order on some occasions. It’s a possibility.
TEDDY DOWNEY: Yeah, I’m very interested to see how this plays out in the courts. As you mentioned, the conservative justices have been the ones opening the door to utility regulation of big tech. I mean, that is a surprising divergence sort of from, I think, a conservative, sort of laissez faire towards big business worldview. I mean, recently we’ve got some Supreme Court decisions sort of with a mix of conservatives and the liberal justices on corporate power. There was a 5 to 4 decision the other day, I think, on being able to sue. I can’t remember the exact decision. So there are just these very odd splits and it creates a little bit of lack of predictability of how the judges are going to go. I mean, some of the most pro‑monopoly decisions have come from Obama judges. So where the courts go in the future seems really interesting to me.
And I guess the last question on that. We’re out of time. So this is, I guess, maybe a good last question to wrap up on. We’re going to get the new merger guidelines soon. I’ve been interpreting those as not just, hey, this is something that the courts are just going to adopt like off the bat. They’re going to be so dramatically different from what we’ve seen if the HSR form is any indication than what we’re used to. We’re going to get a whole new guidebook for analyzing mergers. How do you see this document in terms of its importance toward not just courts, but also to everyone in the antitrust community, like a state AG, staff at the agencies, the courts, private plaintiffs? How do you think the importance historically about this document here and how we should think about its influence?
ROBERT LANDE: I have no idea what’s going to be in the new Merger Guidelines. I have not even seen any hints as to what will be in the new guidelines. I’m optimistic that they will stick close to the language of Section 7 because it helps them. And to the extent they tailor the new guidelines to the precise language of Section 7, including “may be substantially to lessen competition”, and “tend to create a monopoly”, the courts are more likely, I hope, to accept and give deference to the new Merger Guidelines. But beyond that, I can’t comment. I’m optimistic that the enforcers will do what I’m suggesting and give a lot of focus on the precise words of the statute. And I hope that’s a good path for influencing federal judges to take the guidelines very seriously.
TEDDY DOWNEY: Well. Bob, thank you so, so much. Super interesting. I mean, I can see why the FTC had you come in and give this presentation recently. And I just can’t thank you enough for walking us through all this super, super interesting analysis here.
ROBERT LANDE: I can’t thank you enough for having me. And I’m going to check those definitions of “competition” after we hang up. I’m embarrassed I didn’t do that already.
TEDDY DOWNEY: No, I mean, it’s not a science, right? I mean, when you’re going back, you’ve got to kind of put it through this lens of like, okay, what is a conservative justice going to do? You know, there’s a lot of kind of paths that you can kind of take as you’re parsing through these definitions. But I am curious to see what that concludes when you take a look at competition. And thank you again for doing this. And thanks, everyone, for joining the call. And I’m looking forward to reading all of your upcoming research on this too, Bob. I’m excited to keep paying attention here.
ROBERT LANDE: When I finish the merger project on the “tend to monopolize” and the “competition” issuess, I hope you’ll have me back on.
TEDDY DOWNEY: Absolutely. We’d love to have you back on. That would be a joy and a pleasure. And thanks again for doing this, Bob.
ROBERT LANDE: Thank you so much for having me.
TEDDY DOWNEY: All right. This concludes the call. Thanks again to everyone for listening in. Bye‑bye.