The Curse of Bigness Antitrust in the New Gilded Age eBook

The Curse of Bigness Antitrust in the New Gilded Age Persuasive and brilliantly written the book is especially timely given the rise of trillion dollar tech companies Publishers Weekly From the man who coined the term net neutrality author of The Master Switch and The Attention Merchants comes a warning about the dangers of excessive corporate and industrial concentration for our economic and political futureWe live in an age of extreme corporate concentration in which global industries are controlled by just a few giant firms big banks big pharma and big tech just to name a few But concern over what Louis Brandeis called the curse of bigness can no longer remain the province of specialist lawyers and economists for it has spilled over into policy and politics even threatening democracy itself History suggests that tolerance of ineuality and failing to control excessive corporate power may prompt the rise of populism nationalism extremist politicians and fascist regimes In short as Wu warns we are in grave danger of repeating the signature errors of the twentieth centuryIn The Curse of Bigness Columbia professor Tim Wu tells of how figures like Brandeis and Theodore Roosevelt first confronted the democratic threats posed by the great trusts of the Gilded Age but the lessons of the Progressive Era were forgotten in the last 40 years He calls for recovering the lost tenets of the trustbusting age as part of a broader revival of American progressive ideas as we confront the fallout of persistent and extreme economic ineuality Tim Wu's The Attention Merchants is one my most favorite books read to date on the media industry and as a result I have vowed to keep abreast of everything he writes The Curse of Bigness is his most recent and like his other books is extremely well written full of persuasive arguments and historical context and also a pleasure to read But something is amiss The book's premise is to make sense of the growing income ineuality in the US and points to the trend towards industrial concentration over the past 20 years as one of the leading causes Interesting thesis but unfortunately the book lacks any proof This is a major omission and a curious one mostly because he does such a good job referring to many of the great legal and economics minds to lay the foundation for his arguments As a result while The Attention Merchants oozes with substance and can lay claim to being a definitive history of advertising in the US I fear that this book will be judged as of a lightweight effort I learned an awful lot writing it The history of monopoly in the US began as an economics eugenics movement” targeting those seen as unfit to deserve industrial life Tim Wu writes in The Curse of Bigness Antitrust in the New Gilded Age Wu’s book a history of monopoly power and public policy in America from the late 1800s onward is particularly useful to revisit in this current age of tech firms big pharma and airline monopolies Its also illuminating in showing how tussles over market concentration created openings in the modern American economy that made possible the tech and internet industries that exist today When the push to consolidate economic power first began termed the Trust movement America was a nation of decentralized and distributed economic activity dominated by many small producers These farmers professional service providers and shop owners were scattered throughout the country working for themselves and trading amongst each other and spreading prosperity over the continent But it was not to last Clever financiers including JP Morgan believed that just as man had come from apes monopolies were the natural evolutionary outcome of competition and a society run by monopolies was one ruled by the strong So they set about purchasing consolidating or if they couldn't do that destroying small firms in order to organize them into larger Trust companies to capture market power As Wu shows us in the decade between 1895 and 1904 2274 firms merged into 157 corporations a number of which you’d recognize as still in business todayAs trusts gained ever power they exerted political power as well and this political power began overriding democratic will When Teddy Roosevelt took the reins after President McKinley’s assassination he was determined to take the power back for government asserting that a “majoritarian government must lead the country” and that corporations must be accountable to the government not the other way around These were the first shots fired as the antitrust battles began in earnestThese early antitrust fights are anything but boring and Wu does a great job illuminating the price fixing industrial sabotage train accidents and cabals that led to the Rockefellers and Cowboy presidents the insidiousness of IBM and Microsoft’s microserfs and Jeff Bezos’ mapping a plan for ’s growth “by first drawing a map of antitrust laws and then devising routes to smoothly bypass them” Wu shows how monopoly power has shaped the modern economy and also shows how these antitrust laws that are still on the books have become sporadically enforced highly partisan and freuently under attack particularly since the presidency of Bush 43 It’s been two decades since a big anti trust case has been prosecuted by the government thanks to these shifting opinions amongst lawmakers and the judiciary And as a result than 75 percent of industries have achieved increased concentration and industries with large increases in concentration now enjoy higher profit margins and high value merger deals This book shows there’s a path away from our extreme economic concentration using laws we’ve had on the books for over a hundred years The uestion is if anyone will garner the political will to do something with them Read my longer review of this book here As the ideological tectonic plates shift in America many apparently settled matters have become unsettled This creates at the same time both conflict and strange bedfellows though I suspect the latter will become used to each other soon enough Such once settled matters include hot button cultural matters like nationalism but also dry technical matters of little apparent general interest that are of profound actual importance Among these are the place in our society of concentrations of economic and therefore political power the subject of the excellent Tim Wu’s awesome new book The Curse of Bigness What Wu is hawking is “Neo Brandeisianism” and I am buying what he is sellingWu a Columbia Law professor and sometime unsuccessful reformist Democratic candidate for Lieutenant Governor of New York writes mostly on the intersection of technology and social organization His most recent earlier book The Attention Merchants focused on the downsides of advertising in the modern world especially as mediated by the Lords of Tech That book offered measured practical ways to address the problems identified which seems to be a Wu specialty This book focuses on economic concentration through its legal treatment under antitrust law for the past one hundred and thirty yearsThe Curse of Bigness is a short and punchy work; Wu is an outstanding writer Woven throughout a history of antitrust are Wu’s own insights and opinions which he caps with specific and well thought out solutions The core argument of this book is that for the past several decades antitrust law has become effectively neutered administered not at all in the manner its original nineteenth century drafters intended Instead antitrust law has lately refused entirely to recognize the extremely pernicious societal effects of economic concentration even though it was designed by Congress to address precisely those effects For my money Wu is right on target and just as importantly he provides building blocks for the political realignment in which social conservatives are aligning with economic liberals against the neoliberalcorporatist eliteWu begins with the pre antitrust era when men such as J P Morgan and John D Rockefeller created massive enterprises as the United States industrialized using grit along with bribes and coercion to build their concerns These men who created various giant trusts a legal device for holding companies thought that monopoly is awesome and competition is ruinous for both business and society Instead they could and should be relied upon to innovate lower prices and generally benefit everyone along with themselves As the author notes today Peter Thiel pushes this same line which has worked very well for him Wu analyzes this as a form of Social Darwinism closely tied to eugenics Rockefeller gave millions to sterilize the “unfit” “The weak the small and the old fashioned businesses were all being swept away For some this purge displaced not just old ways and inefficient businesses but Christianity as well with its regard for the disadvantaged and insistence on humility before God” Modern conservatives have too often failed to appreciate the long term effects of worship of monopoly and conseuent economic concentration and that the logical end of this Ayn Rand’s Objectivism is a very very bad prescription for a flourishing humanity whatever its theoretical appealOne hundred and thirty years ago though Congress was not the do nothing group of shambling cretins it is now; it was filled with or at least led by serious men who took their responsibility of governing seriously Thus in 1890 due to concerns about these and many other trusts which collectively dominated all relevant industry we got the Sherman Act which to this day on its face absolutely outlaws all actions “in restraint of trade” as well as any monopoly or attempts to monopolize You ask then why are restraints of trade and monopolies all around us? Don’t worry—Tim Wu has arrived to tell you why clearly and succinctlyBefore we get there though Wu takes a detour to lay the groundwork for his preferred philosophical position While this is a book about what the law is it is just as much about what the law should be Wu’s avatar is Louis Brandeis who served on the Supreme Court from 1916 to 1939 Brandeis grew up in Louisville when flyover country mattered He became a business lawyer for some decades and observed first hand the growth of the trusts at the end of the nineteenth century and the beginning of the twentieth unhampered by the Sherman Act which was treated as merely hortatory Brandeis saw the trusts destroy small businesses corrupt politics and not in fact offer the efficiencies and benefits they claimedI’ve never really had much use for Brandeis; his association with the destructive Progressive movement and his use of so called social science to decide strictly legal uestions thereby involving judges as ideological advocates in a legislative role and paving the road to the modern disastrous “living Constitution” always left a bad taste in my mouth But Wu makes a good case that Brandeis’s philosophy as it relates to economic concentration totally aside from constitutional law is both unanswerable and necessary for today Like Theodore Roosevelt Brandeis is someone whom today’s conservatives should at least partially embrace rejecting country club Republicans who prostitute themselves cheaply to the neoliberal elite “If Brandeis had a unifying principle politically and economically it is that concentrated power is dangerous that institutions should be built to human scale and society should pursue human ends Every institution public and private runs the risks of taking on a life of its own putting its own interests above those of the humans it was supposedly created to serve” It should most definitely not be the role of judges to impose their own values against the expressed will of the legislature but as Wu notes Brandeis’s philosophy here was or less the original legislative theory behind the Sherman Act and subseuent lawsUsing Brandeis as his foundation Wu is explicit about what he wants to build “This book aspires to resurrect and try to renovate the lost tenets of the Brandeisian economic vision It envisions a vigorous healthy economy a skepticism of the self serving rhetoric projecting the romance of big business or the inevitability of monopoly and above all a sensitivity to human ends” As presented by Wu Brandeis was profoundly conservative or would be today if placed next to today’s Left “For him the very purpose of life was the building of good character and the development of self The ‘ideal’ of democracy he once said should be ‘the development of the individual for his own and the common good’ ” Not for Brandeis the modern progressive goal of ever emancipation from unchosen bonds of autonomic individualism enforced and empowered by the government His goal was not gaining everyone atomized freedom as the Left pushes today; it was offering freedom in the Aristotelian sense what was until recently the universal sense in the West the freedom to choose rightly To make that choice possible everyone had to have Wu summarizes “sufficient liberties and adeuate support to live meaningful fulfilling lives” Neither the government nor private enterprise should “stifle opportunities for thriving and life” Economic concentration monopoly was the origin of much such stifling because it allowed big impersonal impervious businesses to dictate to both workers and consumersI uibble with Wu in that without discussion several times he casually euates this set of goals with democracy Democracy may be a goal in that one could argue though neither Wu nor in his telling Brandeis does so argue that democracy enhances the first order goals of “sufficient liberties and adeuate support to live meaningful fulfilling lives” At most though that makes democracy a second order goal and there is little evidence that modern democracy is necessary to achieve the first order goal Still Wu makes a good case that economic concentration in any society threatens the first order goal which is the point of the bookBrandeis wasn’t the one who resuscitated the moribund Sherman Act though He just acts as Wu’s philosophical lodestar It was Theodore Roosevelt who did that seeing trusts as corrupting America and failing to curb them as leading to social unrest and even Communism The problem Roosevelt identified was that the private power trusts represented even though as he pointed out they were “creatures of the State” was easily transmuted into massive political power Roosevelt’s intuitive observation was later given heft by Mancur Olson’s mid century work in public choice theory which compellingly demonstrated that motivated small groups with money could achieve disproportionately favorable governmental results through the magic of collective inaction This effect is exacerbated by concentration; an industry with only a few players even if they are bona fide competitors can easily coordinate actions for the benefit of all of them to extract rents from the rest of society where a less concentrated industry would be unable to herd enough cats to achieve the same goal The losers are the great majority of people who have neither the money nor the individual incentive to organize in opposition—so in Roosevelt’s and Wu’s thinking that’s where the government comes inIn 1902 Roosevelt attacked J P Morgan’s railroad trust an action upheld in the Supreme Court’s Northern Securities decision Then starting in 1906 he broke up Rockefeller’s Standard Oil again supported by the Supreme Court which began putting together the outlines of a legal standard not found in the ultra broad language of the Sherman Act that held that only “unreasonable” restraints of trade or monopoly were illegal What is unreasonable therefore became the interpretive key to antitrust law in the following hundred years Roosevelt himself later when out of power turned to corporatism where it is held that giant companies are good and competition bad if the companies work hand in glove with the government hello Mussolini but in his earlier years worked tirelessly to ensure competition and smallness at the expense of bigness and he is thus the prototype of what Wu thinks should be the proper executive approach to antitrust lawWu uses the Standard Oil case to frame what he thinks is the core uestion in antitrust law is monopoly or broadly economic concentration merely evidence of efficiency spreading benefits for all? Or is it a form of anti majoritarian and anti human flourishing power where monopolistic producers use their economic and other power to keep out new entrants and reduce innovation and consumer choice while deforming the political process in myriad ways even if sometimes they also reduce consumer prices? Here Wu offers a range of often forgotten basic economics including that diseconomies of scale are just as real as economies of scale so bigger is not necessarily better and that the agency problem the separation of ownership and control freuently means decisions are made to build empires for management rather than in the best interest of stockholders much less consumers Size is closely correlated with crony capitalism and rent seeking at the expense of workers and the broader community—just look at Jeffrey Immelt and General Electric under the Obama administration for example not an example Wu gives But Standard Oil in fact in the form of its constituent parts boomed after its breakup suggesting that monopoly did not even offer the company economic benefits Wu also name checks my favorite economist Luigi Zingales for these same points Zingales is another person I think an essential player in the realignment of some conservatives and some liberals against their neoliberalChamber of Commerce enemies and who also together with his “Capitalisn’t” podcast partner Kate Waldock recently discussed the Brandeisian antitrust revivalMoving back to history in the 1930s as fascist style central planning reached its peak under Franklin Roosevelt antitrust action suffered a “near death experience” but rebounded soon enough in part as a fresh reaction against economic concentration which became seen as a key element of the Nazi and Soviet systems including the rise to power of the Nazis—though the idea that the prime mover of Nazism or fascism was economic concentration is obviously silly now it was compelling then Concentrated economic power was now seen as un American and importantly as risking an American turn away from democracy Smaller businesses were seen as the iron bulwark of the American way of life and so aggressive antitrust enforcement including breakups of monopolies continued through the 1950s and 1960s During this time though law professors from the University of Chicago originally led by Aaron Director and then brought to full flower by Robert Bork created by Wu’s account out of whole cloth a new idea—that the real purpose of Congress in passing the Sherman Act and subseuent antitrust laws was not addressing the societal harms of economic concentration but rather only demonstrable consumer harm And that only in the form of increased prices not any other less direct harmBork at one point the high priest of originalism the school of Constitutional interpretation holding that the original understanding of the Constitution by its ratifiers was the only acceptable lens through which to decide Constitutional uestions which antitrust is not based his argument on a very strained reading of legislative history or so Wu tells us He combined this with the powerful sales pitch that focusing on lower prices for consumers provided an objective standard measuring stick that courts could use to decide antitrust uestions instead of vague and varied feelings about the social impact of economic concentration which judges could use to simply impose their own politically desirable result It was the desire for judicial restraint not the same thing as originalism though sometimes they go together that really sold what Bork was offering The net result after Bork’s reinterpretation swept through first the academy then the courts was to return antitrust to its pre Theodore Roosevelt daysAs Wu points out Bork ignored possible costs imposed on consumers other than mere higher price such as stifling of innovation The classic example there was ATT after the breakup of which telecommunications innovation flourished but the point is obvious—why innovate if you are collecting monopoly profits? Bork also ignored “virtues of competition stressed by Hayek like the virtues of decentralization and the avoidance of central planning” ATT was the prototypical aggressive and open monopolist gladly engaging in collusion “the jealous God of telecommunications brooking no rivals accepting no sharing and swallowing any children with even the remotest chance of unseating Kronos” The success of its breakup disproved Bork—but ironically it was around the time of its breakup that Bork’s view became dominantFinally Wu turns to what he calls the Tech Trusts and I call the Lords of Tech He does not like them Like other authors such as Franklin Foer and Niall Ferguson he distrusts and importantly sees evil in all of Facebook Google and so on After a brief efflorescence of freedom in cyberspace a false dawn in which fools not including me thought the rules of economics had changed forever what always happens happened again a handful of giant companies concentrated in their hands all economic power in the relevant portions of the new Internet economy using all the usual tools of coercion economies of scale and crony capitalism along with a few new ones So for example Facebook bought all its competitors that might threaten it such as Instagram and the antitrust regulators swallowed the laughable claim that they were not competitors at all Listing this parade of horribles as well as intimating that possible future combinations of such economic power with government could lead to even worse things a point he has expanded on in interviews talking about this book Wu concludes “If there is a sector ripe for the reinvigoration of the big case breakup tradition I do not know it”What Wu wants most of all is a return to aggressive breakups of any concentration of economic power with a near conclusive presumption that any long term monopoly say existing for longer than ten years be broken up by government action He only touches lightly on the definition of monopoly which revolves around how one defines the relevant market but that is a relatively easily overcome hurdle Wu points out that since the decline of antitrust to near total irrelevancy in the past twenty years numerous critical industries have become very substantially concentrated airlines cable pharmaceuticals beer and even telecommunications with ATT reborn without government objection though in a substantially changed technological environment where the old ATT monopolies are gone foreverSo wrapping it up he offers a “Neo Brandeisian Agenda” First aggressive prior review of mergers which now is perfunctory and as I know from my own experience as an MA lawyer mostly an excuse for the government to charge juicy transactions taxes masuerading as fees Second transparency in mergers which as an administrative process is mostly kept from public view by law Third and fourth and most important resurrecting “big cases” followed by a presumption in favor of breaking up companies This would involve bringing suit against them under existing laws Wu does not call for any major new laws with the claims being not consumer harm through higher prices but the mere existence of restraint of trade and monopoly or of any behavior that does not protect competition for which the punishment should be corporate death or at least corporate amputation Wu notes that the idea that breakups can’t be done is laughable—again something I know from personal experience having helped put together many companies together in my time it’s very clear that the external appearance of an efficient welded monolith is a fantasy for any big company or any big organization and breaking them up would cause almost no real trauma He also points out that court ordered breakups are self executing rather than as with consent decrees reuiring constant ongoing supervision for compliance Fifth Wu recommends what he calls “market investigations” already done in Europe which scrutinize any existing market concentration and recommend whether it should be attacked either for bad behavior or because it has ensorcelled itself from competitive attackReview completes as first comment

  • Paperback
  • 154 pages
  • The Curse of Bigness Antitrust in the New Gilded Age
  • Tim Wu
  • English
  • 10 August 2014
  • 9780999745465

About the Author: Tim Wu

Tim Wu is an author a professor at Columbia Law School and a contributing writer for the New York Times He has written about technology in numerous publications and coined the phrase net neutrality

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