Tuesday, November 18, 2003

Capitalism and the Law: Taking the Antitrust Enforcers to Task

CAC's Skip Oliva documents his appeal against the DOJ's antitrust division in the Mountain Health Care case at Initium today. Skip describes the crux of his case against the government:

My appeal to the U.S. Court of Appeals for the Fourth Circuit presents a simple question: Does the government have any legal obligation to support its arguments with facts? If so, then what facts should the public have access to; if not, then is there any effective check on the executive's power to unilaterally destroy private businesses through selective enforcement of the antitrust laws? Whatever the answer, the question must be asked, if for no other reason than nobody has asked it before.
In particular, Skip seeks the release of documents the government relied upon in its prosecution of Mountain Health Care.

In 1974, Congress amended the antitrust laws to expand judicial oversight of antitrust settlements. The idea was to provide for "meaningful" public comment, ostensibly to aid the court in deciding whether a settlement was in the "public interest." One requirement of the law was that the DOJ must disclose any "determinative" documents or information related to a settlement. On paper, it sounds like a salutary reform: Let the people see what the DOJ is thinking. At the very least, let the people see why the DOJ thinks that a particular settlement will "restore competition" to the marketplace.

In practice, however, the DOJ has ignored the law and has made every effort to thwart public and judicial oversight of its settlements. In virtually every antitrust settlement (keep in mind, more than 80% of all government antitrust cases result in settlement) the DOJ says that there are no "determinative" documents within the law’s meaning. Most judges accept this assertion blindly. And why shouldn’t they? Rarely does an outside party stand up and object.
That is, until Skip Oliva came along. I pity the fools at the DOJ.

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