Thursday, March 20, 2008

How to tell if a law is total garbage

What is one way to tell that a law is utterly non-objective and deserves to be repealed? When the enforcement of the exact same law can radically change from one political administration to another. Consider this report that quotes an antitrust lawyer warning businesses to announce their mergers now, lest they run afoul of a potentially Democratic antitrust enforcement apparatus.

Phillip Zane, who specializes in antitrust matters for the law firm Baker Donelson, said that a Democratic administration was likely to take a tougher line on merger reviews than the Bush team.

"If I had any sort of close deal, I'd rather have it go now," Zane said. "It may be that some of the airline deals are close deals." [Diane Bartz Reuters]
OK, that's probably true, but imagine if Mr. Phillip Zane esq. was a criminal attorney warning the public that a Democratic administration was likely to take a tougher line on murder. Most would recognize that different political administrations may seek more or less aggressive sentences for murder as punishment for having been convicted of committing it, but the actual definition of what constitutes murder under the law remains the same regardless of administration.

Such is not the case for antitrust enforcement; antitrust law is so vague that political administrations can and do diverge greatly over what constitutes "restraint of trade" or the "attempt to monopolize." Right then and there this wild divergence ought to signal that the law is utterly un-objective and unfair. How can one possibly hope to avoid running afoul of a law that changes with the political winds? And worse, why would one continue to tolerate it?

1 comment:

Skip said...

My interpretation of this remark is that Democratic political appointees will be less likely to overturn the recommendations of career staff lawyers at DOJ and FTC. There are a number of recent cases where the staff pushed to thwart a merger, only to be thwarted themselves by the political higher-ups. A Democratic regime would be more consistently anti-free market in this respect.