BIG: the Cadence edit

Newsletter Challenge, v. 19

Quick note: I recently wrapped up a writing coach arrangement with Ari Lewis, host of the Mastering the Attention Economy podcast. We enjoyed working together (see Ari’s ROI here), and he proposed a newsletter editing challenge. I’ve built my list from the top paid newsletters at Substack, and I toss in an odd find now and again to keep things fresh.

The challenge: 20 edits by late September (yes, I’m behind, but my clients — and my family — come first, of course).

My primary goal: add clarity, concision, and cadence, and sharpen up my own editing process. After I wrap up the challenge, I’ll provide reflections on these edits and offer lessons you can use on your own newsletter.

For details on my process, click here, a Google doc. Leave suggestions as you see fit. Thanks!

“Will Trump’s Supreme Court Destroy Trump’s Google Case?,” Sept. 22

https://mattstoller.substack.com/p/will-trumps-supreme-court-destroy (1400 of 2200 words)

by Matt Stoller, @matthewstoller

–Grey typeface: Stoller.

Normal typeface: me.

Key metrics (original -> edit)
–reading level: 14 -> 11.
–word count: 1392 -> 1312.
–median sentence length: 22 -> 17 words.
–sentence length, standard deviation (basically, a measure of the variety of sentence lengths): 10.6 -> 10.3.
–% of sentences, hard or very hard to read: 69% -> 53%.

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Will Trump’s Supreme Court Destroy Trump’s Google Case?

The court cases that have made antitrust a dead letter have largely come from the conservative legal movement

Will Trump’s Supreme Court Destroy Trump’s Case Against Google?

Notes on the pro-monopoly conservative legal movement

All indications are that the Department of Justice Antitrust Division, perhaps joined by Republican state attorneys general, will be filing an antitrust suit against Google, as soon as next week. The politics are lined up for it; last week, the Senate Antitrust Subcommittee held a hearing on Google’s dominance over the advertising market, with unanimous agreement that Google is too powerful.

Senator Mike Lee is the chair of the subcommittee and was also one of Google’s last remaining Senate defenders. But even he flipped, issuing a statement after the hearing basically accusing the corporation of being an illegal monopoly. Here’s what he said:

All signs indicate that the Department of Justice Antitrust Division will file an antitrust suit against Google as early as next week. In a hearing last week on Google’s dominance of the advertising market, the Senate Antitrust Subcommittee came to a unanimous agreement that Google is too powerful.

Senator Mike Lee, the chair of the subcommittee, was among Google’s last remaining defenders in the Senate. Now even he’s flipped. Lee recently issued the following statement:

[Google] appears to be using its leading market positions in search and online video to engage in tying on the advertiser side of its business, essentially forcing the vast majority of demand onto its platform. In turn, publishers are also forced to use Google’s platform because there really isn’t any other option.

~~~~~~~~~~~~

Lee’s comments are a major victory for anti-monopolists. While Obama didn’t do much to address monopoly power, towards the end of his administration the Democratic establishment started shifting towards a more skeptical posture towards corporate concentration. Elizabeth Warren launched the first mainstream attack on Google as a monopoly in 2016. She was pushed back by critics as seeking to upend antitrust law to incorporate social goals, for being a radical left-winger, for hipster antitrust, whatever. But it should be clear by now that Warren has won the debate. If Lee is on board, then nearly everyone in Congress is on board.

The problem that Bill Barr and the states will encounter in bringing an antitrust suit, however, is the judges that George W. Bush and Donald Trump have put on the court (not to mention the seat held by Ruth Bader Ginsburg that Trump will try to fill). This is because courts have claimed total authority over not only interpreting statute, but since the 1970s, actually writing antitrust law itself, largely consistent with the conservative legal movements goal of supporting corporate concentration. Legendary antitrust jurist Robert Bork’s theory of competition policy was also a theory of judging; in his view, Congressional intent and even statute didn’t really matter, what mattered was that corporatist judges could make the law conform to his moral preference of consolidating wealth and power. Bork was a culture warrior, and in his view, strong antitrust enforcement prior to the 1970s was an ideological attack on a moral America organized by an appropriately rigid social hierarchy. His view, in other words, was that it was important for conservatives to turn the judiciary into a super-legislature, and that so the world we’re living in is one in which Democratic judges and Republican judges dishonestly write law under the pretense of being neutral umpires.

Lee’s comments represent a major victory for anti-monopolists. Obama, of course, didn’t do much to address monopoly power. Towards the end of Obama’s presidency, though, the Democratic establishment established a more critical position on corporate concentration. Senator Elizabeth Warren launched the first mainstream attack on Google as a monopoly in 2016. Critics pushed back with a host of accusations against Warren: for trying to incorporate social goals into antitrust law; for being a radical left-winger; for antitrust hipsterdom. Whatever. Today it’s clear that Warren has won the debate. If Lee is on board, you can expect nearly everyone in Congress to be on board.

You can also expect the judges that George W. Bush and Donald Trump have put on the court — not to mention the open SCOTUS seat — to push back hard against Attorney General William Barr and states attorneys general, should they join the case. First, the courts claim total authority in the interpretation of statute. Second, since the 1970s, members of these courts have actually written antitrust law, and in a way that’s largely consistent with the conservative legal movement that supports corporate concentration.

Robert Bork, the legendary anti-antitrust jurist, presented two key theories: a theory of competition policy, and a theory of judging. For Bork, Congressional intent and even statute don’t really matter. Ensuring the ability of corporatist judges to make the law conform to his moral preference of the consolidation of wealth and power mattered. Bork was a culture warrior. In his view, strong antitrust enforcement prior to the 1970s was an ideological attack on the appropriately rigid social hierarchy of a moral America. In turn, he sought to inspire his fellow conservatives to turn the judiciary into a super-legislature. And he pretty much succeeded. Today, Democratic judges and Republican judges write law under the pretense of being neutral umpires.

~~~~~~~~~~~~~

Bork’s philosophy of having judges narrow antitrust has continued to shape the law up to the present day, heavily structuring the way enforcers approach tech platforms. In 2018, the Supreme Court, in a 5-4 decision known as Ohio v. American Express Co, wrote that monopolization claims against what are called ‘multi-sided platforms’ have a higher burden of proof than ordinary claims. The case involved American Express, which connects merchants who take American Express cards with customers who have those cards. Amex was screwing merchants by charging them high prices and refusing to let them ask shoppers to use Visa or Mastercard, whose charges were lower. A bunch of states sued American Express, claiming that it was violating the Sherman Act by charging high prices and preventing customers from using the services of competitors.

American Express offered a novel defense. Showing monopolization and harm wasn’t enough, Amex claimed, the government also had to show that across American Express’s entire payments platform there was a net loss. That is, American Express argued that it offered reward points to consumers, and those reward points offset any harm it might be doing to merchants. The Supreme Court, led by conservatives (Thomas, Gorsuch, Kennedy, Alito, Roberts), agreed with Amex, crafting special rules for platforms.

The case extends far beyond Amex, and helps shield the business lines of Google, Facebook, and Amazon from monopolization claims. In effect, conservative judges created, as scholar Lina Khan noted, “de facto antitrust immunity for the most powerful companies in the economy.”

Bork’s design to have judges narrow antitrust continues to shape the law today, and limits the ability of enforcers to take on tech platforms. In 2018, in Ohio v. American Express Co. (a 5-4 decision), the Supreme Court decided that monopolization claims against “multi-sided platforms” have a higher burden of proof than ordinary claims. The case involved American Express, which connects merchants who take American Express cards with customers who have those cards. Amex charged merchants high prices and refused to let them inform shoppers that their use Visa or Mastercard entailed lower charges for the merchant. A bunch of states sued American Express, claiming that it was violating the Sherman Act by charging high prices and preventing customers from using the services of competitors.

In their novel defense, American Express claimed that the demonstration of monopolization and harm wasn’t enough. The government also had to show that across American Express’s entire payments platform there was a net loss. American Express argued that the reward points offered to consumers offset any harm it might be doing to merchants. The Supreme Court, led by conservatives (Thomas, Gorsuch, Kennedy, Alito, Roberts), agreed with Amex, crafting special rules for platforms.

The case, though, extends far beyond Amex. Today it helps shield the business lines of Google, Facebook, and Amazon from enforcement of antitrust law. In effect, as scholar Lina Khan noted, conservative judges created “de facto antitrust immunity for the most powerful companies in the economy.”

~~~~~~~~~~~~~

Amex was a critical case, and among those who filed in support of gutting antitrust law was Wall Street, the pharmaceutical industry, lobbying group for large technology firms like Google, Amazon and Facebook, the big tech-funded antitrust law professoriat. And a district court has already dealt the DOJ Antitrust Division a loss when it challenged the merger of Sabre and Farelogix, largely on grounds that multi-sided platforms have special higher burdens of proof to show potential monopolization.

Now there are ways around this decision, depending on the Google case DOJ and the states choose to bring. Still, if the Trump Department of Justice does bring a Google case, they may have obstacles or a higher burden of proof because of Amex. As Bloomberg law noted last month:

Amex was a critical case, and the parties that filed support briefs included Wall Street, the pharmaceutical industry, lobbyists for Google, Amazon and Facebook, and the big tech-funded antitrust law professoriat. And a district court recently dealt the DOJ Antitrust Division a loss when it challenged the merger of Sabre and Farelogix, largely on grounds that multi-sided platforms have higher burdens of proof to show potential monopolization.

Now there are ways around this decision, depending on how DOJ and the states make their case against Google. Still, the burden of proof will be higher because of Amex. As Bloomberg law noted last month:

Federal and state enforcers need to be prepared for Google to invoke the AmEx ruling in its defense, antitrust experts say. The company has argued that competition has helped lower the cost of online ads in recent years, and highlighted the money it makes for publishers. Successfully raising that legal precedent would put a higher burden on government lawyers to prove that Google’s behavior is anticompetitive.

"People are going to have to try to guess when a court is going to say, ‘Oh no, your market is actually two-sided,’ and they will have to have the backup market definition ready to go,” said Chris Sagers, a professor at the Cleveland State University law school. “If they don’t, case dismissed.”

~~~~~~~~~~~~~

There’s a lot of evidence piling up against Google. But the reality is that the courts have been increasingly hostile to bringing antitrust claims for decades now, spurred by conservative jurists.

It has been over twenty years since a major monopolization case, when the DOJ won its antitrust case against Microsoft. Still, the case ended not with a bang but with a whimper. After Microsoft was found guilty of violating the antitrust laws by tying its operating system to its browser (among other problems) in order to forestall competition, the district court judge ordered the company split in two. But an appeals court overturned the remedy, relaxing antitrust law, and the new Bush administration settled with Microsoft. It became evident that the courts had legalized monopolization in high-technology markets. Two years later, Oracle CEO Larry Ellison responded to the decision by noting that dominance in every line of business was now a court-blessed reality, and in databases, Oracle intended to “be that dominant player.” Or, as he put it, “We have to roll up our industry.”

There’s plenty of evidence piling up against Google. The legal reality, though, remains monopoly friendly. For decades now, when stacked with conservative judges, the courts have become increasingly hostile to antitrust claims.

The last major antitrust case was 20 years ago. The victory in United States v. Microsoft, though, ended not with a bang but with a whimper. Microsoft was found guilty of violating the antitrust laws by tying its operating system to its browser (among other problems), in order to forestall competition. The district court judge ordered the company split in two, but an appeals court overturned this remedy. The Bush 43 administration subsequently settled with Microsoft. In effect, the courts had legalized monopolization in high-technology markets. Two years later, Oracle CEO Larry Ellison responded to the decision by noting that dominance in every line of business was now a court-blessed reality. In the database market, Oracle intended to “be that dominant player,” Ellison said. “We have to roll up our industry.”

~~~~~~~~~~~~~

In 2004, the Supreme Court further eroded monopolization cases with Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, a decision authored by Antonin Scalia but joined by every other member of the court. Verizon was a local phone monopoly controlling access to customers, and in the 1996 Telecom Act had been required to lease its lines to competitors at a wholesale rate so that they could compete with Verizon to sell telecom services. But Verizon had refused to do so. Customers sued, alleging Verizon had monopolized the market. The Supreme Court, in an aggressive decision, not only said that Verizon could monopolize the market by shutting out its competitors from its essential service, but that it should do so. Here’s what Scalia wrote:

In 2004, the Supreme Court further eroded antitrust law with Verizon Communications Inc. v. Law Offices of Curtis V. Trinko. Justice Antonin Scalia wrote the decision, which was signed by every other member of the court. Verizon was a local phone monopoly controlling access to customers. The 1996 Telecom Act required Verizon to lease its lines to competitors at a wholesale rate, so that they could compete with Verizon to sell telecom services. But Verizon refused to do so. Customers sued, alleging Verizon had monopolized the market. In their decision, the Supremes said that not only could Verizon monopolize the market, but that it should. From Scalia’s decision:

The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system. The opportunity to charge monopoly prices–at least for a short period–is what attracts “business acumen” in the first place; it induces risk taking that produces innovation and economic growth.

Firms may acquire monopoly power by establishing an infrastructure that renders them uniquely suited to serve their customers. Compelling such firms to share the source of their advantage is in some tension with the underlying purpose of antitrust law, since it may lessen the incentive for the monopolist, the rival, or both to invest in those economically beneficial facilities.

# # #

And that’s a wrap. Be sure to head over to Matt’s site to see the rest of this super-smart essay.

If you like what you see, drop me a line over here.

Thanks!

Happy writing!

Published by Randal Doane

Living the good life in NE Ohio. I dig science and the written word. Let's build something amazing together.

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