Louis Brandeis once said, “If we desire respect for the law, we must first make the law respectable.” The court had to rule against this well-known tyrant, or it would lose its credibility.
I competed for Virginia Commonwealth University's Cross Country & Track & Field teams. While on the team, I set 2 university records (STILL STANDING!) and paid for half of my undergraduate tuition via athletic scholarships. While attending VCU, I also started tutoring my fellow student-ahtletes. That turned into a graduate assistantship where VCU paid for my masters degree (plus a stipend of $1,200 a month) in exchange for my tutoring Men's Basketball and academically at-risk student athletes. It was an awesome deal! And VCU making the Final Four during my time with the team made it even more awesome.
My experience as a long distance runner was not at all similar to the experience of a Men's Basketball player. There is only so much a person can run, after all, and my limit was about 80 miles a week. That took about 10 hours of running. Add in another 2-3 hours for strength training and 2-3 for stretching and other forms of recovery training, like ice baths (you haven't been cold until you've been hip deep in 45 degree water for 10 to 15 minutes).
As rigorous as that schedule sounds, particularly while taking a full course load, the basketball guys had it worse. How much worse? Every moment of their day was scheduled. If they weren't in morning classes, they were meeting with me no later than 10am and I would tutor until their practice at 2pm. They would then practice until no later than 4pm and as late as 6pm. After practice, it was either more class, more tutoring and sometimes film until 8pm. All told, I think they were engaging in sport-related activities for at least 20 hours a week and up to 40 hours (and sometimes more) throughout the year. It was particularly crazy in season when they'd have 2 games a week (As a track runner, particularly a 10K runner, I'd need up to 2 weeks to properly recover from a race before competing again) And remember, these guys were taking a full course load and *MANY* of them came from academically poor backgrounds.
These guys deserved to be paid. They played and worked their hearts out on and off the court. I have nothing but respect for their never quit attitudes, but they deserved more than a scholarship.
It's an interesting argument. The current SCOTUS is not hyper-conservative. But both the liberals and conservatives on the Court for the last 30 years have thinking that is strongly influenced by the narrower consumer-welfare standard that was adopted in the 1980s.
Recall that, at the time, there were some who wanted to abolish antimonopoly altogether. An important thing to remember is that, when it was adopted in the 80s, this narrower standard meant, then, that the *fans* were considered the "final consumers," and that's the usual way most people would think of it. But once you realize that the *schools* are doing the "hiring," you'll look at it differently. It's like the famous line from Milton Friedman about the purpose of business being for the sake of its owners (shareholders), which is true in a narrow sense -- for the shareholders, not the management or external "stakeholders." But it's not true in a basic sense. Peter Drucker made the correct point around the same time, which is that a commercial enterprise exists for the sake of its (end) customers and functions properly when it's creating something of greater value than its inputs.
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Much of the problem with places like universities and hospitals is that, historically, they've had quite special positions in society -- non-profit, tax-free, allowed to charge truly absurd tuitions (thanks to bloated administrations), large supply of ultracheap borrowing to pay for it available, etc., etc. There's a presumption that these institutions are on a higher moral plane. Especially in the last 30 years, higher education has gotten an extraordinary deal and extreme leeway from society and government, and so have certain parts of health care.
TOTALLY DIFFERENT BUT STILL RELATED ... for Matt ... watch this very interesting video by an expat who's moved back to the US recently, and what she says about the cost of living in the US, especially the absurd cost of medical care, the subsidy-induced consolidation of food and factory farming (the real problems with US health care), and monopoly-induced outrageous cost and mediocre quality of phone and internet service. (Personally, we get Verizon, which costs a little more, but is worth it -- we're mostly happy with it. It is, however, a *regulated* monopoly and generally aware of consumer satisfaction.)
I generally think there are ample opportunities to attack Big Tech under the consumer welfare standard that Lina Khan should pursue, while over time congress and courts should obviously work in other modes of analysis in Antitrust. For example, Amazon stealing its third-party seller's data and using it to promote its own products would traditionally be viewed under Trinko as a fair exercise of monopoly power, and that introducing cheaper products would benefit consumers so there would be no antitrust violation. Confronted with a court favorable to the CWS, Lina Khan could make the case that 1) Amazon's market power over eCommerce means producers have to move through them, and 2) By copying third party sellers products they are creating disincentives for innovation which hurts consumers in the long run. As a result, enforcers can use Amazon's market power over third-party sellers to make a consumer welfare argument, and broadly expand the scope of antitrust laws in doing so. It's not ideal, but in the short run it might be the best shot at reigning in these tech giants.
I competed for Virginia Commonwealth University's Cross Country & Track & Field teams. While on the team, I set 2 university records (STILL STANDING!) and paid for half of my undergraduate tuition via athletic scholarships. While attending VCU, I also started tutoring my fellow student-ahtletes. That turned into a graduate assistantship where VCU paid for my masters degree (plus a stipend of $1,200 a month) in exchange for my tutoring Men's Basketball and academically at-risk student athletes. It was an awesome deal! And VCU making the Final Four during my time with the team made it even more awesome.
My experience as a long distance runner was not at all similar to the experience of a Men's Basketball player. There is only so much a person can run, after all, and my limit was about 80 miles a week. That took about 10 hours of running. Add in another 2-3 hours for strength training and 2-3 for stretching and other forms of recovery training, like ice baths (you haven't been cold until you've been hip deep in 45 degree water for 10 to 15 minutes).
As rigorous as that schedule sounds, particularly while taking a full course load, the basketball guys had it worse. How much worse? Every moment of their day was scheduled. If they weren't in morning classes, they were meeting with me no later than 10am and I would tutor until their practice at 2pm. They would then practice until no later than 4pm and as late as 6pm. After practice, it was either more class, more tutoring and sometimes film until 8pm. All told, I think they were engaging in sport-related activities for at least 20 hours a week and up to 40 hours (and sometimes more) throughout the year. It was particularly crazy in season when they'd have 2 games a week (As a track runner, particularly a 10K runner, I'd need up to 2 weeks to properly recover from a race before competing again) And remember, these guys were taking a full course load and *MANY* of them came from academically poor backgrounds.
These guys deserved to be paid. They played and worked their hearts out on and off the court. I have nothing but respect for their never quit attitudes, but they deserved more than a scholarship.
It's an interesting argument. The current SCOTUS is not hyper-conservative. But both the liberals and conservatives on the Court for the last 30 years have thinking that is strongly influenced by the narrower consumer-welfare standard that was adopted in the 1980s.
Recall that, at the time, there were some who wanted to abolish antimonopoly altogether. An important thing to remember is that, when it was adopted in the 80s, this narrower standard meant, then, that the *fans* were considered the "final consumers," and that's the usual way most people would think of it. But once you realize that the *schools* are doing the "hiring," you'll look at it differently. It's like the famous line from Milton Friedman about the purpose of business being for the sake of its owners (shareholders), which is true in a narrow sense -- for the shareholders, not the management or external "stakeholders." But it's not true in a basic sense. Peter Drucker made the correct point around the same time, which is that a commercial enterprise exists for the sake of its (end) customers and functions properly when it's creating something of greater value than its inputs.
---
Much of the problem with places like universities and hospitals is that, historically, they've had quite special positions in society -- non-profit, tax-free, allowed to charge truly absurd tuitions (thanks to bloated administrations), large supply of ultracheap borrowing to pay for it available, etc., etc. There's a presumption that these institutions are on a higher moral plane. Especially in the last 30 years, higher education has gotten an extraordinary deal and extreme leeway from society and government, and so have certain parts of health care.
TOTALLY DIFFERENT BUT STILL RELATED ... for Matt ... watch this very interesting video by an expat who's moved back to the US recently, and what she says about the cost of living in the US, especially the absurd cost of medical care, the subsidy-induced consolidation of food and factory farming (the real problems with US health care), and monopoly-induced outrageous cost and mediocre quality of phone and internet service. (Personally, we get Verizon, which costs a little more, but is worth it -- we're mostly happy with it. It is, however, a *regulated* monopoly and generally aware of consumer satisfaction.)
https://www.youtube.com/watch?v=DO5x_tJBn7w
great post. thanks for the overview
I generally think there are ample opportunities to attack Big Tech under the consumer welfare standard that Lina Khan should pursue, while over time congress and courts should obviously work in other modes of analysis in Antitrust. For example, Amazon stealing its third-party seller's data and using it to promote its own products would traditionally be viewed under Trinko as a fair exercise of monopoly power, and that introducing cheaper products would benefit consumers so there would be no antitrust violation. Confronted with a court favorable to the CWS, Lina Khan could make the case that 1) Amazon's market power over eCommerce means producers have to move through them, and 2) By copying third party sellers products they are creating disincentives for innovation which hurts consumers in the long run. As a result, enforcers can use Amazon's market power over third-party sellers to make a consumer welfare argument, and broadly expand the scope of antitrust laws in doing so. It's not ideal, but in the short run it might be the best shot at reigning in these tech giants.