Topic: Antitrust
Senator: DeWine
Date: SEPTEMBER 14, 2005
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DEWINE: Judge, let me turn to the area of antitrust, a matter that's very important for the businesses and the consumers of this country.
For over 100 years our antitrust laws have helped consumers by ensuring that our economy is competitive and vibrant. Our antitrust laws are the oldest in the world, and many people, including me, think they are the best in the world. In fact, I'm proud to say that John Sherman, Republican senator from my own home state of Ohio, wrote the first antitrust law back in 1890. Over the past 20 years we've achieved a great deal of consensus, I think, about how the antitrust laws should be enforced, Democrat and Republican administrations. As the chair of this committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights, I've worked very closely with Senator Kohl, who asked you some questions about antitrust. I think we've worked in a bipartisan way to ensure that consumers and competition are protected. This is a simple goal but it's not always easy to achieve or put into practice. For example, recently the rise and expansion of the Internet and the technological explosion of the so-called new economy have led to a marketplace that's changing faster and more often than we have really ever experienced before. Judge, what challenges do you think the courts face in trying to square our old antitrust laws as they are currently written with new business strategies and the high technology markets? And do you think that the laws, these laws, give courts enough guidance to deal with these new economy issues?
ROBERTS: Well, that was really the basic issue that I faced in the Microsoft case before the D.C. Circuit en banc. There was a lot of argument, academic commentary back and forth. The idea this is a whole new area, you can't apply the old principles, they don't work in this context, you need to do something different. A so-called new paradigm and all that. And at least the argument that I tried to make on behalf of the states was that the basic principles are the same. The Sherman Act was, as many have said, you know, a charter of economic freedom, and that those basic principles do have to be applied regardless of changes in the economics of the underlying businesses or the structure of the markets.
Obviously, it requires a great deal of sensitivity on the part of the judges and it's a real challenge for the lawyers sometimes to be able to understand the economics, to be able to explain them to the judges, and judges appreciate that. But my basic instinct, and it's nothing more than that, is that the principles are there and the issue is simply application in a new context.
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