Comments on: Antitrust: Deference to Congress But Not the Market? http://www.kipesquire.net/2007/03/antitrust-deference-to-congress-but-not-the-market/ A Stitch in Time Saves Nine ... But Haste Makes Waste Mon, 29 Nov 2010 16:02:21 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Alec http://www.kipesquire.net/2007/03/antitrust-deference-to-congress-but-not-the-market/comment-page-1/#comment-4572 Alec Wed, 28 Mar 2007 03:09:57 +0000 http://www.kipesquire.net/?p=3100#comment-4572 I think this illustrates the problem with the Court's invented review standards. As near as I can tell, there is not a textual, historical or philosophically coherent justification for the three (or four) standards of review the Court kindly invented in the 20th century. It actually makes more sense to apply heightened scrutiny to, say, takings as opposed to race; at least the 14th amendment <i>mentions</i> property; the 15th explicitly mentions race, which would lead one to believe that its absence in the 14th belies any argument for strict scrutiny. But I digress... <BR /> <BR /> I think the best argument for rational basis is pragmatic; i.e., in the absence of something like rational basis, judicial interference in daily government activities (particularly regulatory) would make government as we know it unworkable. I think this assertion is a bit strong, because the Supreme Court has managed to find ways to invalidate statutes and ordinances on rational basis review (particularly for categories such as sexual orientation and mental retardation). I think they could at least give rational basis a bit more bite. I think this illustrates the problem with the Court's invented review standards. As near as I can tell, there is not a textual, historical or philosophically coherent justification for the three (or four) standards of review the Court kindly invented in the 20th century. It actually makes more sense to apply heightened scrutiny to, say, takings as opposed to race; at least the 14th amendment mentions property; the 15th explicitly mentions race, which would lead one to believe that its absence in the 14th belies any argument for strict scrutiny. But I digress…

I think the best argument for rational basis is pragmatic; i.e., in the absence of something like rational basis, judicial interference in daily government activities (particularly regulatory) would make government as we know it unworkable. I think this assertion is a bit strong, because the Supreme Court has managed to find ways to invalidate statutes and ordinances on rational basis review (particularly for categories such as sexual orientation and mental retardation). I think they could at least give rational basis a bit more bite.

]]> By: Tony http://www.kipesquire.net/2007/03/antitrust-deference-to-congress-but-not-the-market/comment-page-1/#comment-4571 Tony Wed, 28 Mar 2007 02:17:10 +0000 http://www.kipesquire.net/?p=3100#comment-4571 <i>...by giving the customer what he wants, in order to maximize his own profits...</i> <BR /> <BR />Unfortunately, I suspect this is what politicians think they're doing, using mob rule. …by giving the customer what he wants, in order to maximize his own profits…

Unfortunately, I suspect this is what politicians think they're doing, using mob rule.

]]> By: Skip Oliva http://www.kipesquire.net/2007/03/antitrust-deference-to-congress-but-not-the-market/comment-page-1/#comment-4570 Skip Oliva Wed, 28 Mar 2007 01:46:07 +0000 http://www.kipesquire.net/?p=3100#comment-4570 I would add that the only function of the "per se" rule is to deprive defendants in antitrust cases of due process. The Supreme Court invented per se to prevent defendants from arguing that an antitrust rule was not supported by economics (or even logic.) Thus, a defendant cannot present a defense of any sort. The case now before the court would, at best, substitute a "rule of reason" standard that, while far from permitting actual reason to prevail, would at least permit defendants to argue their actions were economically beneficial. I would add that the only function of the "per se" rule is to deprive defendants in antitrust cases of due process. The Supreme Court invented per se to prevent defendants from arguing that an antitrust rule was not supported by economics (or even logic.) Thus, a defendant cannot present a defense of any sort. The case now before the court would, at best, substitute a "rule of reason" standard that, while far from permitting actual reason to prevail, would at least permit defendants to argue their actions were economically beneficial.

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