[fjtorres]

Originally Posted by HarryT

Yes, I know, and I thoroughly approve of anti-trust laws. I just thought it slightly ironic to see a complaint about "nanny state interference in free trade" when this whole DOJ lawsuit is the result of such "interference". Presumably the view is that it's OK for the government to interfere if doing so benefits the consumer, but not OK if it benefits corporations?

Ironic? You are kind.
As I said, I stand by my diagnosis of schizophrenia.

The thing is, there is a kind of consistency at work but it is historically-driven.
Since the US legal system follows English Common Law traditions and mechanisms, unlike the Continental Napoleonic systems, the status quo was forged out of past decisions and the past history is of corporations preying on consumers so the body of precedent is all directed to restraining corporate excesses and its effects on consumers. Competitors are presumed to be predators themselves and thus capable of taking care of themselves. (Notice how little sympathy the Borders implosion garnered? Notice how 20 years ago the disappearance of half the indie bookstores at the hands of Borders and B&N went unchallenged? There is plenty of precedent for letting losers fail across many industries. Bailouts are a more recent development. And a transitory one at that, most likely.)

Also, consider that US culture does not see failure in business as the personal "disgrace" it is seen as in many european countries. Failure in business can be bad luck, bad timing, a "learning experience", etc, and no personal stigma is attached. A business failing is not seen as significant enough to warrant special protection so long as the individuals involved are protected (through limited liability, unemployment insurance, etc). By letting companies fail when they can't keep up with competition--the underlying philosophy argues--Darwinian competition will breed stronger and healthier competitors better suited to meeting consumer needs.

Both policies end at the same point: the consumer is king. It is not a matter of personal rights or civil rights but of (unstated) economic rights. Common Law has its failings but the inability to keep up with the evolving social contract of the society isn't one of them. As the american economy has moved from an industrial economy to a consumer-driven economy over the last hundred years, the evolution of the law has followed suit and enshrined consumer protection as key to a healthy, active economy. (The only polite thing I can say about corporate protectionism is that the laws *may* have served a purpose in the olden days but are strong candidates for sunsetting today.)

The mechanisms at play in US antitrust are obscure and "not-pretty" in operation but they seem to work acceptably for the general good. It is schizophrenic in that many of the players in government may not personally buy into these underlying philosophies or be able to articulate them but they are constrained by the environment and the law. The DOJ clearly understands that Amazon could conceivable win big in any punishment of the conspiring corporations, hence the (unusual) constraints they've imposed on them in the settlement terms which are actually *light* on the three settling companies (compared to the usual price-fixing conspiracy penalties), even though they are not participants in the conspiracy and fought it publicly. They may not like Amazon (theoretically) benefitting, but they are also compelled by law and precedent to act; they can't turn a blind eye to such a classic antitrust violation with such a high visibility factor. Motivation and consequences don't enter into the equation; just the raw fact that producers conspired with one particular distributor to reduce competition among themselves and raise consumer prices. Faced with the evidence in the filing, they *had* to do their job: protect consumers, restrain and punish the conspirators. Anything else going on is irrelevant to the case and at most only worth monitoring but unworthy of action until an actual law is broken.

Different societies have different values and different social contracts so they produce different bodies of law. In a connected world these bodies of law are broadly visible across borders and there is a strong tendency to apply them in places/situations they were not intended for; to people and places with different values and different needs.

One consequence of this is that some US judges have taken to looking at foreign precedents as guidance, not just previous US precedents, with the expected consequences: serious debate and a growing movement to explicitly de-legitimize foreign precedent as legal guidance. Several states have passed or are legislating such constraints for a variety of reasons but at core they have a reasonable concern: Common Law requires a common history to ensure general buy-in and its force and utility comes from that general buy-in. It is a dynamically adjusting, emergent effect, not a grafted-on constraint. This particular subject is headed straight to the SCOTUS within the next year or two so the scope of US Common Law guidance is about to be defined as either based on local legal history and laws or global. It will be interesting to see how the court rules on importing precedent without importing the customs and mores that produced those precedents.

But until then, the system stands: based on "high principle" but (flexibly) inconsistent. It is not necessarily a bad thing for a legal system to be schizophrenicaly inconsistent.

Emerson's full quote fits the situation nicely:

A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.

I for one would not like to see little minds or little statesmen running the legal system, much less philosophers or religion advocates. Keeping their grubby hands of the levers of power is an ongoing, never-ending effort in the US with, as usual mix results.
(As I said, the workings aren't pretty. But they're surprisingly efficent.)

Stripping away the blather: The DOJ is acting in accordance to US mores, customs and laws; doing their job and letting the chips fall where they may, as expected of them.
Europe is grappling with the same conspiracy on their own terms, following their own mores and laws.
They may end up at the same place (my tea-leaf reading) or not but that is up to the Brusselcrats.