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Microsoft

LinuxPlanet Interviews Robert Bork 276

Greg writes: "Robert Bork, former Supreme Court appointee from the Reagan era and a recent entrant in the MS antitrust case, did an interview over at LinuxPlanet. The topic? The Evil Empire's court settlement." Bork isn't actually new to the Microsoft case or to the subject of monopolies -- his legal experience makes this an interesting read, even for those who don't consider Microsoft an "evil empire."
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LinuxPlanet Interviews Robert Bork

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  • by dinotrac ( 18304 ) on Thursday January 24, 2002 @07:29PM (#2898197) Journal
    Though many know of Bork only because of the partisan fiasco that accompanied his nomination for the Supreme Court (an unfortunate event that has foreshadowed the regular "Borking" of decent people by both sides of the aisle).

    Bork is widely acknowledged in legal circles as one of our country's greatest legal minds.

    He is widely respected for his integrity.

    He is a well known legal conservative and strong believer in strict constructionist interpretation of the Constitution.

    Anyone who thinks that the Microsoft case is a left-wing attack on big business should pay careful attention to Bork's words. Whatever else Bork may be, he ain't no left-wing anti-business type.

    • by Anonymous Coward
      Bork is widely acknowledged in legal circles as one of our country's greatest legal minds

      You understate the case. He's generally considered the foremost legal mind in the field of anti-trust law.

      He also consulted for Netscape, and perhaps still is.
      • He's generally considered the foremost legal mind in the field of anti-trust law.



        You overstate the case, he is also considered a heel in many other legal circles. Consider his 1963 article "Civil Rights - A Challenge" (New Republic, July 6, 1963 pp 21-24). There he argued that forcing whites to deal with blacks on an equal footing was an infringment upon whites' freedom of contract.



        (The editors saw fit to apoligize for the article at the end.)

    • It's worth noting that there is really no such thing as a "strict constructionist interpretation of the Consitution". In every instance I can think of, the "strict constructionist" starts with a belief about what the law OUGHT to say, and then proceeds to find sections of the constitution that can be narrowly construed to mean what they want. Never mind precedent, other parts of the constitution, etc.

      To be fair, this is only in stark contrast to the other type of interpretation of the constitution, where the justice will start with a belief about what the law OUGHT to say, and the proceeds to find sections of the constitution that can be broadly inferred to mean what they want. Never mind precendent, other parts of the constitution, etc.

      • I realize that there is no arguing with a determined cynic.

        I would point out, however, that "what the law ought to say" is a loaded concept.

        First, what a law "ought to say" isn't directly in the Court's jurisdiction. Legislators make the law and are free to clarify/fix laws that the Courts don't like. If you dougt the balancing power of Congress, for example, you need only look back to the FDR years and his threat to pack the court.

        Second, it's also loaded with the pre-conceptions that a Judge brings to the bench. If a judge believes that the Constitution sets the parameters within which Congress can work, then the notion of "what the law ought to be" will be be consistent with strict constructionist principles.

        • All you have to do is look closely at some of the more ridiculous decisions by the conservative side of the Supreme Court over the last 30 years to see the lie in your claim that "what the law ought to be" will be consistent with strict constructionist principles.

          Strict constructionists are just like fundamentalist Christians, in that they will justify any behavior they think they ought within the confines of some amazingly narrow interpretation of their source material. And as I said before, I don't mean this criticism to allow the other side off the hook for their own failings. There are times when I agree with the rulings of either side of this issue, but such agreement is generally in spite of the avowed legal philosophy behind the rulings, rather than because of.

          I have more sympathy for strict constructionism, but since it is so rarely (i.e. never to my knowledge) practiced with any consistency, I have no respect for those who use it to justify things that seem to me clearly ridiculous. Sadly I have to go to work shortly so I don't have time to dig up the specific examples right now.

      • The second amendment is a perfect example of this. It says:

        A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

        You can read this in few ways. In one sense this may suggest that you only should be able to bear arms for the purposes of defending the state. Basically that you need to have guns for things like the national guards, etc. But you can focus on the "free" part of that comment and read that the average citizen should have the right to have a weapon to defend their freedom from those within the state who would take it.

        Personally I find the interpretability of the constitution to be one of its most valuable assets. It gives our nation a common thread to work from but it also provides flexibility to accomodate for changing attitudes.
        • A well educated citizenry being necessary to the sucess of a free state, the right of the people to keep and read books shall not be infringed.

          So we can only keep and read books that relate to education? We can only keep and read books that are permitted by the state?

          The most apalling interpretation is that the right is somehow "granted", when it specifically says that the right shall not be infringed. The plain english is that government cannot "grant", it can only "infringe" on a pre-existing right.

          Offtopic, here I come.

          Bob-

          • by 1010011010 ( 53039 ) on Thursday January 24, 2002 @11:49PM (#2899174) Homepage
            Thanks. People seem to either not know or want to forget that the Constitution does not grant rights to people. Rather, it limits the government.

            Amendments 9 and 10 just spelled that out in neon lettering.

            As far as "interpretability" goes, the 2nd is slightly vague, but when taken with the other writings and sayings of the people who wrote it, it becomes clear that they intended that the average Joe have access to weaponry. They didn't want a standing army, etc. Each male with a gun was part of the "militia," called up to defend the neighborhood/town/city/state/nation. Rather than have a standing army, the idea was to train teh regular citizenry to be the defenders of the nation. Those "other writings" aren't part of the Constitution, but all the other laws of the country are interpreted by the courts along with the "intent of congress," so including the "intentions of the founders" in adjudication of constitutional law is par for the course. On a strict reading it would seem to say that each state can have its own army, but armed gangs are illegal.

            However: remembering that the constitution doesn't grant people rights, it only limits the government 's scope of actions by granting it specific, enumerated powers, there's no where in the Constitution that prohibits citizens from owning weapons. We would be able to own guns without the 2nd amendment at all. Assuming, of course, that the courts could also remember (alas, they cannot) that U.S. Citizens are not granted specific rights, but have all rights be default.

            A clearer case is #1:

            Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


            "Congress shall make no law" doesn't have much wiggle room in it.
            Number 9 is pretty clear, too:


            The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

            "Shall not." Gotcha.

            However, the quality went down as the years progressed. Number 17, for instance, is a mess. It changed the U.S. from a Republic into a Representative Democracy. From a Federation of Soverign States into one big state. It should really be repealed.


            The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.

            When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

            This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.



            It's pretty clean compared to number 12, though. Sheesh:


            The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

        • A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

          You can read this in few ways.


          Ah, but if you read "People" as different from the "State", you just may notice some interesting things about the Bill of Rights. There is an implicit difference between the people and the state. The people are the mass of riff-raff of which we are a part. The state is the government. And they are different entities (if the people can be considered some entity).


          With that in mind, I think there's something to the notion that the average member of the riff-raff has a right to have a gun (any gun), and thereby becomes part of the militia, which can thereby be regulated by the state (the taking away of guns or limiting their ownership being contradictory to the existence of the militia).


          Maybe we just ought to amend the constitution to make it absolutely clear what this friggin' 2nd amendment really means. There is a constitutional process in place for that.

    • You forgot the last reason Bork is important--he was the Nixon flunky (Solicitor General, I believe), who acted in the capacity of Attorney General to fire Watergate special prosecutor Archibald Cox, after Elliott Richardson refused to do it, and his deputy Ruckelshaus also refused. How anyone could "widely respect him for his integrity" after that is a mystery to me.
    • Before you start praising the supposed high moral character of Bork, perhaps you should take in a little history lesson:

      On Oct. 20, 1973, Attorney General Elliot L. Richardson resigned in protest rather than carry out Richard Nixon's order to fire Watergate Special Prosecutor Archibald Cox. His deputy, William Ruckelshaus, also refused to fire Cox and was fired. Nixon's Solicitor General, Robert H. Bork, who was next in command, carried out Nixon's orders and fired Cox.

      Anyone who would help Nixon cover up Watergate by firing the Watergate Special Prosecutor lacks the ethics, integrity, and judgement to serve as a Justice of the Supreme Court. I, for one, am happy that the Democrats hae real integrity and blocked the appointment of that scoundrel.
      • Like most things, it isn't that simple.


        Bork *expected* the crisis to escalate upon the firing (as would *anyone* who gave it serious thought). He was also concerned about the justice department--he was the only senior official left, and *someone* had to mind the store.


        To suggest that he thought that this would in *any* way assist the coverup is to be willfully ignorant. Suggesting that integrity was at all involved in the Borking of the nomination shows a loose grip on reality--put the crack pipe down.


        hawk

      • Bork had a tough decision to make, and probably about an hour to make it, tops. I think he made the wrong call, but I also know that I've thought about the issue for more than an hour too.

        It couldn't have been that compelling an assault on Bork's character. Otherwise, Patrick Leahy (that's right, the man who is holding up all of the current president's nominees!) decided to attack Bork for earning money and not doing pro bono work while he was desperately trying to pay the bills to (unsuccessfully) save his wife from her cancer.

        His character had to be pretty good for Leahy to have to slink that low to even to try to get a shot in.
  • by MathJMendl ( 144298 ) on Thursday January 24, 2002 @07:31PM (#2898209) Homepage
    Let me note that for the record, Reagan attempted to put him on the Supreme Court, but he was rejected. This was because of ideological reasons, hence the term "borked" was invoked when Bush appointed Ashcroft Attorney General. Anyways, just wanted to note that while he was nominated, he was not actually placed on the Supreme Court, as "Robert Bork, former Supreme Court appointee" suggests.
    • by rho ( 6063 )

      Yes and no. You are right--he was not an "appointee", implying that he was appointed and confirmed. He was appointed, but rejected. More accurate would be "Bork, Reagan's Supreme Court nominee"

      However, "Borking" does not mean rejected for idealogical reasons, per se. Those that opposed Bork's nomination didn't like his ideology, we presume, but "Borking" is a process whereby you spike a nomination through a series of procedural delays, character smearing, mud-slinging, and/or the calling in of political favors or threatening of political retribution. It's the casting of a nominee in the worst possible light and using parlimentary schemes to discourage passage of the nomination.

      It's a shameful way of doing the "People's Business", and has probably been in constant use since ancient Rome.

    • As a liberal, I think what happened to Bork was just plain wrong. Ashcroft, on the other hand, deserved everything he got and more; he has abused his position disgracefully in the past, and my objection to him isn't his ideology, but his willingness to subvert both his position and the law to further his own agenda.
      • As a liberal, I think what happened to Bork was just plain wrong. Ashcroft, on the other hand, deserved everything he got and more; he has abused his position disgracefully in the past, and my objection to him isn't his ideology, but his willingness to subvert both his position and the law to further his own agenda.

        Given Ashcroft's performance thus far I suspect that more than a few of the administration wish he had been borked.

        Ashcroft is accident prone, never a good thing for a politician. For no good reason he pushed through a half baked idea of military tribunals which Rumsfeld has quietly and deliberately crushed. If any tribunals do take place they wil now be run by rules set by Rumsfeld.

        Another accident prone individual the Administration will probably regret is Olson. During his first spell in government Olson initiated a ridiculous dispute with Congress over executive privillege. He is now busy trying to make sure that the details of Cheney's discussions with Enron CEO Lay are dealt with in the same manner.

  • by Ieshan ( 409693 ) <ieshan@gmai[ ]om ['l.c' in gap]> on Thursday January 24, 2002 @07:33PM (#2898218) Homepage Journal
    "So it is not so remarkable that a noted conservative lawyer would see perfect reason for action to be brought against Microsoft for the transgressions we have all witnessed and experienced over the years; what is remarkable is that people would find such a position at all unusual."

    I'm not sure I agree, at all. Alright, so from an intellectual standpoint, it's ridiculous that the public would find the Judge's position unreasonable, but from the Public's Perspective, it makes perfect sense.

    Mircosoft Provides Software to the Large Majority of the Public that they Encounter Every Single Day for, in their mind, a reasonable price. Therefore, people who use this software have nothing against Microsoft, don't realize what it's doing to the industry as a whole, and keep going with their MSWord/Internet Explorer/WindowsXP Spyware.

    The web has started to become "optimized" for Internet Explorer, but the public doesn't really care, because they aren't seeing the huge technological impairment that Microsoft is - they're only seeing the benefits.

    If and when Microsoft really does make a PR mistake, or Linux finally jumps into the mainstream, I expect the "flyswatter of freedom" (from the article) to crack down on their heads, but for now, they're going to stay afloat because of public opinion and use.
  • by hawk ( 1151 ) <hawk@eyry.org> on Thursday January 24, 2002 @07:34PM (#2898227) Journal
    I am an attorney; this is not legal advise. Contact an attorney licensed in your jursidiction if you need some.


    Robert Bork is the #1 authority on modern antitrust law, with Richard Posner (who served as a mediator in this case) a close #2.


    Modern antitrust law is essentially what Bork & Posner suggested would better protect consumers in a series of law beginning inthe late 60's. They pointed out that the current state of the law made no sense, conflicting wsith itself and the economics it dealt with (Brown Shoe, Bork's favorite: Brown & Kinney, with 5% and 1% of the manufacturing & sales markets for shoes, wanted to merge. DoJ blocked this (successfully with the USSC) on the grounds that it would allow them to sell a product of comparable quality at a lower price than their competitors . . . aren't you grateful for such protection?)


    Anyway, Bork is seen as a rabid conservative, which is inaccurate (though he's now a conservative on many issues), but he wasactually a screaming leftist (borderline socialist) who learned some economics and changed his positions based on them--to achieve the original goals.


    Bork argued that the sole legitimate test of the competition was whether it benefitted or hurt the consumer: if consumers will see lower prices from the merger of ten firms down to 3, than it is a pro-competitive merger. He also arugued that the law should protect competition, not the other competitors.


    His antitrust rules are *not* republican--the Clinton administration pretty much took the same path.


    hawk, esq.

    • IANAL, but there must be more to consumer 'benefit' that simply tomorrow's retail prices.

      What good does it do for consumers to pay lower prices tomorrow, but inflated monopoly or collusion prices 5 years from now become some anti-trust decision deemed that lower prices tomorrow was in the 'consumer interest'.

      What good does it do for consumers to pay lower prices tomorrow because of some anti-trust decision when future innovations that could could create evolutionarily or revolutionarily better products are stifled by that decision?

      The trick is, consumer retail prices are easy to measure, and and therefore make for more straightforward cases.

      Lawyers like easy cases.
      • >IANAL, but there must be more to consumer
        >'benefit' that simply tomorrow's retail prices.


        Of course there is, and the analysis is not that simplistic. I'm not going to be able to explain detailed economic analysis in a page or two (and If I did, it would publish in a journal, not here).


        Price is the example. Consumer welfare is the standard. Bork isn't out on the fringe of the Chicago school that thinks one firm is enough for competition (it's an honest argument; I just don't buy it).


        If it created monopoly power, Bork would be against it.


        Note that Bork was highly suspicious of the predatory pricing argument, as (at the time he wrote) there were other explanations for all the past cases. Microsoft seemes to be a better example, and possibly the first.


        Again, Bork is saying that microsoft's pattern of behavior is *bad*, and anti-competitive--andthis from the father of the school of thought that opened the way for more mergers.


        hawk

      • > IANAL, but there must be more to
        > consumer 'benefit' that simply tomorrow's
        > retail prices.

        Why?

        > What good does it do for consumers to pay lower
        > prices tomorrow, but inflated monopoly or
        > collusion prices 5 years from now become some
        > anti-trust decision deemed that lower prices
        > tomorrow was in the 'consumer interest'.

        What good does it do for consumers to pay inflated prices *now* because there might be some highly theoretical price collusion five years from now? Deal with the monopoly price collusion when it occurs!

        Chris Mattern
  • WTF? (Score:4, Funny)

    by scorcherer ( 325559 ) on Thursday January 24, 2002 @07:49PM (#2898279) Homepage
    an interesting read, even for those who don't consider Microsoft an "evil empire".

    Huh? This is Slashdot, right?

  • Destiny? (Score:2, Funny)

    by EggplantMan ( 549708 )
    I guess it's time to create alt.judges.robert.bork.bork.bork ...
  • by Snodgrass ( 446409 ) on Thursday January 24, 2002 @07:56PM (#2898315) Homepage
    The Honorable Judges Sporkin and Bork eat pork with forks, popping corks off ports while chortling over court reports of sports of a sordid sort.
  • What bodes ill... (Score:5, Informative)

    by Eryq ( 313869 ) on Thursday January 24, 2002 @08:09PM (#2898364) Homepage
    When George W. Bush was asked what he thought about the Microsoft case [this was a while ago], his reply was [and I think I have the exact words]:

    "I believe in innovation, not litigation."

    (I almost expected him to follow with "if the glove don't fit, you must acquit". But I digress.)

    Anyway, this statement could have -- and probably DID -- come straight from the mouths of Microsoft's PR department, probably in the same envelope as a campaign contribution (to be fair, I'll bet Gore got one too).

    Our best hope is that the President's advisors listen to intelligent conservative commentators like George Will, who wrote an excellent column in the Washington Post about Enron, in which he made the following point:

    Capitalist economies don't spring up automatically, like crabgrass. They are dependent upon a complex set of laws. Capitalism is a government program.

    Will was speaking about laws which require accurate financial disclosure so that people have faith in the market. But the same priciples hold for the right to fair competition. Without that right, where the success of a startup [e.g., Netscape] leading to its imminent demise by those seeking to maintain their control [e.g., Microsoft], why would anyone risk their money to enter the marketplace? The result in such a case is stagnation, and the loss of a healthy economy.

    • by rho ( 6063 ) on Thursday January 24, 2002 @08:37PM (#2898473) Homepage Journal
      Our best hope is that the President's advisors listen to intelligent conservative commentators like George Will, who wrote an excellent column in the Washington Post about Enron, in which he made the following point:
      Capitalist economies don't spring up automatically, like crabgrass. They are dependent upon a complex set of laws. Capitalism is a government program.

      George Will is wrong. Or, if you prefer, he's wrong, but in an interesting way.

      Capitalist economies do spring up automatically. It is in our nature to get what we want at the best price. The interworking of this with more than a single person will be inherently capitalist. Look at kids trading baseball cards: each gets what they want for what they want to pay.

      Government does not bring forth capitalism: government's nature is to grow more government. Government's place in a capitalist society is to inhibit the strong from unfairly overpowering the weak. Remember those baseball card trading kids? Government is the teacher on the playground keeping the big kid from knocking the other kids down and simply taking their baseball cards.

      The means by which, and the extent to which the government does this is where we get today's political parties. However, after some 60 years of steadily increasing government involvement, it seems that the more government gets involved, the less good it does. Indeed, it seems, at least to some people, to be doing more harm than good.

      George Will, in saying that government promotes capitalism, is wrong. Government does have a role, but that role (if you are to have pure capitalism) is very, very limited. Capitalism is intuitive and inherent in our nature.

      • Historically, capitalism has been inseparable from the state. Indeed the growth of capitalism has gone hand in hand with the creation of modern nation-states. For background on this, I heartily recommend Fernand Braudel's Civilization and Capitalism [dannyreviews.com].

        Danny.

      • More precisely:
        Several things could happen. Here's one scenario:
        In the absence of government intervention the secondary stage of a market will be similar to capitalism. Then the larger and more successful groups will use non-economic means to increasingly dominate the market. Eventually open force will be used between the dominant players (everyone else having been cowed). One will eventually become dominant. Over time this will turn into a monarchy. The king will delegate franchises to his favorites, and forbid others from competing. In other areas the king will either claim sole jurisdiction, or will lack interest. If he lacks interest, yet he will still wish to keep order, so a band of armed men will maintain the public order. Over time this may come to dominate more and more of the social arrangements. So a limited form of capitalism under the control of a monarch will begin. The monarch will levy tolls on the commerce. Etc.

        One rule is that things don't stay the same. Things that stay the same die.
        .
        • Or, as I've had it explained to me: if you wake up in the morning, you can fall in the bathtub and hurt yourself. This can lead to conditions by which you are unable to work. Since you can't work, you can't buy food, and therefore you die.

          So stay in bed, or you'll die.

      • Capitalist economies do spring up automatically. It is in our nature to get what we want at the best price. The interworking of this with more than a single person will be inherently capitalist. Look at kids trading baseball cards: each gets what they want for what they want to pay.

        That is a confusion between Capitalism, and commerce. Capitalism depend on two things: capital, and free labor. The first condition of Capitalism is availability of people who lack the tools to produce on their own and thus must sell their labor. The second is a government that sanctions and enforces contracts and property rights, without which capital can neither accumulate nor contract with labor.

        (historically, the government kickstarts capitalism by producing free labor itself (for example, by driving peasants away from their lands, as the IMF is now busy doing all over the third world.)

        There isn't any historical reference to capitalism absent these two conditions. Buying and selling isn't capitalism, it's commerce. Capitalism is buying and selling other people's work.

        • Re:What bodes ill... (Score:3, Interesting)

          by rho ( 6063 )
          That is a confusion between Capitalism, and commerce. Capitalism depend on two things: capital, and free labor.

          That is a warped view. Capitalism, at it's heart, is free commerce. I'll grant you that the economic system we have today is called "capitalism", but it's really capitalism's dowdy cousin, "sort-of capitalism".

          The first condition of Capitalism is availability of people who lack the tools to produce on their own and thus must sell their labor. The second is a government that sanctions and enforces contracts and property rights, without which capital can neither accumulate nor contract with labor.

          This is not correct. The first condition of capitalism is supply, the second is demand. You are stuck on the idea that capitalism needs government intervention in order to function.

          Even a stable currency isn't *neccessary* for capitalism (not that our government is providing us with one): barter and trade work interchangably with dollars and cents. The convenience of a single currency, and the standardization (and enforcement) of rules of commerce (i.e. the SEC) are just that: conveniences. They are not, repeat NOT neccessary for capitalism to exist.

          Milton and Rose Friedeman described money in this way:
          There are four ways for money to move

          1. You spend your money on yourself. You get exactly what you want at the best price.

          2. You spend your money on other people. You get the best price, but you don't care as much about pleasing the recipient. This is why you got underwear for Christmas.

          3. You spend other people's money on yourself. You get exactly what you want, but at any old price. This is why 20-year-old second wives of 55-year-old men drive convertible BMWs.

          4. You spend other people's money on other people. Nobody gives two shakes about price, quality, or suitability of purpose.

          Capitalism works in the first area. Government works in the fourth. They mix poorly, and whereas #1 can begat #4, the reverse is almost never true.

          There isn't any historical reference to capitalism absent these two conditions. Buying and selling isn't capitalism, it's commerce. Capitalism is buying and selling other people's work.

          Sure there is: look at the origins and beginning of America. People living out West did well enough without the benefit of the SEC, the dollar, or even Alan Greenspan. If you grew corn, you traded that corn for a cow when you wanted milk or meat. If you wanted a new plow, you bought it with gold you got from selling your corn to hungry miners. If people didn't trust their gold assayer, he got shot.

          Modern capitalism is a dog's breakfast of free market, socialism, and political chicanery. Pure capitalism is based in the free market.

          • Not you nor friedman nor any other "free market" thinker has ever stopped to grok the most obvious hole in all capitalism theories. That being.

            The economy is nothing more then turning the natural resources of the planet into money. It takes either manufacturing or labor to generate money. In the former case some material is dug out of the earth and turned into a widget in the latter case material is harvested and turned into widgets, food, energy to feed and grow your crop of humans to toil for you and to consume your goods.

            Economies will keep growing at the expense of natural resources. Some resources are replinishable (but not at the rate they are being consumed today), some are recylable (but not at the rate that they are being consumed today) and most are simply used up.

            In the time of Adam Smith he thought there were infinite amount of coal, trees, clean water, clean air, arable soil, etc. It never occured to him that the farmer who cut the trees to build his house, cart, and plow did not replant them. Nor did it occur to him that the farmers progeny would do the same for eternity.
    • by bill_mcgonigle ( 4333 ) on Thursday January 24, 2002 @08:42PM (#2898495) Homepage Journal
      This is a really good point. This case was about the browser issue.

      Once upon a time, not too many years ago, there was real innovation in the browser market. People could barely keep up with the features coming left and right from Netscape, Spyglass, Mosaic forks, Cyberdog, etc., and features were piled on left an right. Forms! Tables! JavaScript! Java! DHTML!

      Then Microsoft crept over the 50% market share mark. Now the new browser feature people get excited about is TABS, for Pete's Sake! They're still trying to get a decent CSS2 implementation done, ECMAScript is stagnant at best, and Java applets still don't work all that reliably.

      And it's been a few years. There's no innovation to be found. Yeah, Mozilla has some froody features, and XUL may still kick ass someday, but if you want real innovation, you need competition, and any capitalist can tell you that. If IE had to compete on the open market they might even run lint on it.
    • You might want to read a book before posting next time. I can suggest Ludwig von Mises "Human Action" [mises.org] as an excellent trist on the subject.

      Here's why capitalism is like crabgrass: Any time property rights are protected to any degree, and freedom to associate is allowed to any degree, people begin to trade their skills and materials with others. If money is available, money is used.

      Those with high skills or materials in demand trade their skills or materials at a higher "price" than lesser skills or materials.

      Bingo. Capitalism. Supply and demand. A good barber in Kabul the day after the Taliban runs out has more business than a bad barber. No one plans it, the myriad decisions of each individual creates capitalism spontainiously.

      So, Eryq, do you wish to say why you believe "capitalism" does not exist except by some plan or decision from On High? Care to give an example? Would you please support your assertion?

      Bob-

    • Warning this is nitpicking, but an important point that should be made. Full on capitalism is the abscene of government controls. What we have is a mix of socialism and capitalism, what most people call a free market economy, and for this, the government must be involved in it. The captialism involves things like private enterprise, and the socialist aspects are things like anti-trust laws, safe product laws, unemployment, and welfare. It takes both aspects for an economy to work, but the result is not capitalism.
    • Capitalist economies don't spring up automatically, like crabgrass. They are dependent upon a complex set of laws.

      The expression I've heard that makes sense is:
      You can't have big business without big government. You can't have big government without big business.
  • by PaulBu ( 473180 ) on Thursday January 24, 2002 @08:10PM (#2898368) Homepage
    I was reading Ayn Rand recently (Capitalism: The inknown Ideal, 1967 or so) and she pointed out that in all previous anti-monopoly cases it was the government itself that gave some exclusive rights to the companies and these exclusive rights allowed the companies to grow into the illegal monopolies. The AT&T case supports this statement, but what about Microsoft?

    In your opinion, did they (MS) get any exclusive rights from the government or are they the exception of a company which managed to get to this position all by itself?
    • In your opinion, did they (MS) get any exclusive rights from the government or are they the exception of a company which managed to get to this position all by itself?
      Well let's see.... does the government use computers? And what operating systems run on those computers?

      The US government is larger today than it has ever been. I'd venture that the percentage of government office computers running Windows is roughly equal to the overall percentage of American office computers running Windows - in other words, friggin' huge. So how much of your paycheck goes to Microsoft every month?

      What would be the effect on Microsoft's monopoly if every federal and state (since the state governments are the ones complaining now) government office installed Linux or bought a Mac? If you never had to apply for a government job by submitting your resume as a Word document? If every publicly-funded school stopped teaching kids on Windows? If every government web site complied with HTML standards?

      The government takes your money to buy from Microsoft, then it takes more to pay lawyers to bring down Microsoft. God bless America.
    • The government has helped MS immensely. Basically MS pays a lot less taxes than any real business. They are able to write off huge amounts of "loss" due to software "piracy".

      If anything, piracy helped MS become what they are today, so it's doubleplus good for them.

      These fictional losses they get to take against their income, and therefore pay very little taxes, relative to real businesses.
    • I disagree that MS has enjoyed governmental help to achieve thier monopoly.

      For the government's use of MS products, I think they are victims of MS's monopoly, not creators of it. I don't see any collusion between MS and the gov to install MS products exclusively on gov computers. The majority of gov computers use MS because it is the de facto industry standard. Everyone uses MS Word, so you better use software that can read MS Word docs. The majority of off the shelf software runs on Windows, so if you want to use off the shelf software, you better run Windows. The government is no different in this respect than the rest of the country. The gov didn't buy MS products exclusively early on, helping to create the monopoly. They gradually moved to it as the corporate and private worlds did.

      As for tax breaks and writeoffs, I am unaware that MS gets any different treatment in that respect than any other large software manufacturer.
    • I would say that Ayn Rand is wrong in this case. What governmental protections did Standard Oil, or the Sugar and Tobacco Trusts receive? I think AT&T is the exception here, not the rule.
  • by blakestah ( 91866 ) <blakestah@gmail.com> on Thursday January 24, 2002 @08:32PM (#2898448) Homepage
    Just read it.

    For those who haven't, here is the summary.

    Linuxplanet: Isn't the proposed settlement horseshit.

    Bork: Yes, I'd have to say I agree with that.

    Insightful - NOT !
  • I am impressed! (Score:3, Interesting)

    by cgleba ( 521624 ) on Thursday January 24, 2002 @08:36PM (#2898465)
    "was nominated to the United States Supreme Court by President Ronald Reagan"

    Damn. I think this is the first conservative that actually interprets conservatism for the people. I am impressed.

    Generally most conservatived *cough* Bush interprets "small government" as "laissez-faire" which then they perverse into "leave big corporations alone even if they have a monopoly" in and Adam-Smithian belief that "The Invisible Hand" will fix everything. Of course they don't argue because it also fixes their wallets.

    It is VERY nice to see a person interpret small government as NOT laissez-faire economics. If the whole Republican party went by that ideology I would vote for them every time.
    • "The Invisible Hand" will fix everything.

      Of course it will! Except that in the modern interpretation, it is the invisible hand that puts money in the pockets of politicians.

  • Impressions of Bork (Score:3, Interesting)

    by jamienk ( 62492 ) on Thursday January 24, 2002 @08:45PM (#2898501)
    I wasn't following politics too much at the time Bork was put forward for the supreme court, but years later I saw him on a William Buckley show where "Free Speech" was debated. (Mark Green, who just lost the NYC mayorality to Bloomberg was on this show too.) Bork argued what seemed to me to be an anti-free speech position (arguing the original intent of the Bill of Rights). He thought it obvious that a lot of sexually-related expression had no place in a civilized society. The example he kept giving of expression going too far was (I kid you not) "Michael Jackson gyrating his hips..."

    Off topic? Maybe. But for me this clinched my impression of Bork as someone I not only disagreed with, but who seemed damned-right retarded.
    • Yes, indeed. This is an example of the Bork that got "borked", not the Bork who's a leading expert on anti-trust law.
    • I think Bork was right about original intent. The first amendment has never been an absolute right to engage in any kind of speech. There have been laws against obscene material since the beginning of the republic. The definition of obscenity has changed over the years, most notably with the Warren court. You can argue whether this is good or bad, but I think you will have a hard time finding any evidence that the founders intended to protect obscene speech.
  • by MsGeek ( 162936 ) on Thursday January 24, 2002 @08:59PM (#2898551) Homepage Journal
    I actually read the article. Carefully. And damn if I don't agree with the grumpy old bastard.

    Wow. Either this is a fever dream or reality has just warped.
  • Mr Bork. Many people have asked the age old question, posed to us first by an interprid immigrant from the fine nation of Sweden. The question, of course, is:

    Bork, Bork, Bork.

    Comments? Thoughts? Commentary?

    Your response will help use better understand you and your experience. Thank you.
  • ... in restoring competition? One of the assumptions behind anti-trust is that business practices valid for small agressive companies are not legal for monopolies. But imposing behaviour constraints seems to be like pissing in the wind ... basically if the officers are not legally responsible for their corporate culture (e.g. FUD sales tactics) then there is no incentive to alter their mindset.

    Perhaps its it time to consider identifying where the competitive pressure has failed and why it is os. Competition refers to more than the guy trying to do unto thee what you're trying to do unto them. It also includes substitute goods/services, threat of entry, pricing power of suppliers, and pricing power of buyers. Here we see specific tactics that should be considered as hindering competition
    - denial of interoperability to avoid subsitution
    - rapid change of APIs to impose high conversion costs to smaller entrants (cough .NET cough)
    - extend and embrace to extinguish markets created by more gung-ho startups
    - distribution contracts that forbid secondary sales

    The last component is a subtle one as it disguises a depreciating service (license) as a phsycial good (CPU). If people were free to sell their MS software license (substitute Linux instead say) on their OEM box then the market price for MS software would be established by the free market which would estimate the half-life of a specific version of their OS/app. Unfortunately a free market does not serve the needs of a monopolist as people can then have an alternative to compare the cost of other features (such as lack of security).

    So what can the legal system do to help restore competition to the software market? I would recommend requirements that licenses/terms of usage be written in clear language rather than legalese, that any promises (spam-free mail) be backed up by some form of performance bond, and that termination/opt-out clauses be subject to scrutiny by fair trading groups.

    LL
    • Of course they do. You just need to use the correct ones.

      E.g., if Microsoft were forced to stop selling all of its products for a year you would see some quick changes.

      Slaps on the wrist don't ever work in any circumstance. Not unless the slapper is clearly ready to do much more.
      .
  • From historychannel.com:

    "Three of the very best men in the Nixon administration have been ousted from it because they put loyalty to the law of our land above loyalty to Richard Nixon." (October 20, 1973)

    -Alan Cranston, U.S. senator of California

    On October 20, 1973, U.S. Attorney General Elliot Richardson resigned after refusing to fire special Watergate prosecutor Archibald Cox, who earlier in the day had announced that he would not accept White House summaries of the Watergate tapes. The Watergate tapes, subpoenaed three months before under the authority of the Senate, were official recordings of White House conversations that were believed to heavily implicate the president and his staff in the Watergate affair. Hours after Richardson resigned, Deputy Attorney General William Ruckelshaus, also unwilling to fire Cox, likewise handed in his resignation. Finally, Solicitor General Robert Bork agreed to fire the special prosecutor. Later that night, Alan Cranston, a Democratic senator, reacted to what became known as the "Saturday Night Massacre." On Capitol Hill, the event galvanized congressional outrage at President Nixon's conduct, and on October 23, even as the president finally agreed to turn over the tapes, eight impeachment resolutions were introduced against him in the House of Representatives.
  • Manufactured? (Score:2, Interesting)

    by RazzleFrog ( 537054 )
    Am I the only one who feels like this interview never took place and the author just took comments that the Judge made to somebody else and put statements around them to make it sound like an interview? I mean we never see the actual questions that he is answering.

    Here is an example:

    Microsoft is evil, very evil. I hear they torture little boys and feed them to Bill Gates. He cruches their bones and spits out the cartilage.

    Judge Bork - "Yes. I hear that can be very detrimental to society."

    What ever happened to a straight question/answer session without all the bullshit posturing and editorializing in between.
  • by gonerill ( 139660 ) on Thursday January 24, 2002 @09:53PM (#2898741) Homepage
    This is slightly OT, but some more context on Bork might be of interest. In case anyone was wondering, Robert Bork's nomination to the Supreme Court wasn't canned by the Democrats simply because he was a conservative --- there are plenty of conservatives on the Supreme Court, in case you hadn't noticed. He was "borked" in a long-awaited act of revenge.


    During the Watergate scandal, Archibald Cox (the first ever independent prosecutor, a la Ken Starr) faced down the Whitehouse in an (ultimately succesful) effort to unearth damning evidence of criminal activity by both President Nixon and Veep Spiro Agnew.


    Nixon wanted to fire Cox, but it wasn't in his power to do so. As an Independent Prosecutor, Cox was subordinate only to the Attorney General, Elliot Richardson. So Nixon demanded that Richardson fire Cox. This was an appalling abuse of power. Nixon essentially threw out the rule of law to satisfy his political ends. In an act of great courage, Richardson refused to comply. So Nixon fired him. Then he promoted the Deputy A.G. to acting A.G. and gave him the same order --- fire Cox. Again, a refusal; and again Nixon fired the guy. Next in line at the Justice Dept was the Solicitor General. At the time, this was none other than our friend Robert Bork. Nixon made him acting A.G. and ordered him to fire Cox. Bork consented and fired him. As an added bonus, he sent FBI agents over to the Prosecutor's office to seal it off, temporarily shutting down the investigation of the President.


    This was the famous "Saturday Night Massacre" --- the most serious constitutional crisis ever faced by the United States, in fact. Bork's decision to cave in to Nixon's unconstitutional power grab forever marked him in the eyes of many Americans, and not just Democrats, either. When Reagan nominated him for the Supreme Court, the possibility of having someone who had helped Richard Nixon flaunt the rule of law sitting on the highest court in the land was just too much for many to bear. And so he was borked.

  • by S. Allen ( 5756 ) on Thursday January 24, 2002 @10:00PM (#2898769)
    and Microsoft dances away from this with a slap on the wrist. The only saving grace I can think of is that this will go a long way towards fueling the fires of Microsoft paranoia brewing outside the US. More non-US governments will look seriously for Microsoft-free solutions as it becomes crystal clear that the US goverment and Microsoft are sharing the same toothbrush and underwear.
  • This interview is simply amazing. After reading it, I strongly believe that Robert Bork is very knowledgeable in his field of work, and at the same time, he understands technology--and the business of technology--quite well, making him the ideal person to bridge the gaps, so to speak, between corporate executives, legal departments, and the technical community.

    I applaud Robert Bork for having the interview with LinuxPlanet, and for making such a good impression in the technical community.

  • by fanatic ( 86657 ) on Thursday January 24, 2002 @10:11PM (#2898823)
    I've never had any use for Bork since I heard that he wrote that he found civil rights legislation stopping restaurant owners from discriminating on racial grounds "repugnant", then later upheld Georgia (I think) law under which sex (in this case, gay) between consenting adults in their own home could be illegal and the police could come in and arrest them. For this dipshit, government interference is bad - unless it's interfering in something he's against, then it's OK. (Of course, I'm inconsistent in the opposite direction, but I think it's a much better argument that the government DOES have a place in restaurants and NOT in the bedroom.)
  • Where's the Harm? (Score:2, Interesting)

    by TomRC ( 231027 )
    Netscape had a monopoly and blew it. When faced with an obvious competitive threat from the bundled and free Explorer, they basically didn't take any effective measures to protect their market share.

    Have consumers, in net, been harmed by Microsoft's giving the browser away for free, bundled?

    On the harm side, there's the theoretical loss of some unknown benefits of competition, and the hypothetical threat that Microsoft may yet someday use its monopoly to price gouge.

    On the benefit side, consumers don't have to buy Explorer separately or download it and install it separately or even think about it very much. It provides some small benefits through tight integration with the Windows interface - radically exaggerated by Microsoft, of course.

    So, by Bork's theory of harm to consumers as the standard for application of anti-trust - where's the big net harm to consumers?

    All Microsoft did was take reasonable steps to maintain it's market share in the software platform business, in the face of a competitor that publically bragged that they were going to put an end to Microsoft's dominance. If you pull the lion's tail, you shouldn't complain about being mauled and eaten. STUPID!

    Netscape could have offered to license their browser to Microsoft on very reasonable terms for bundling with Windows, back when Explorer was just an idea. They could have built up a wall of proprietary technologies that they licensed to web content creators. Fully automatic and invisible browser updates sure wouldn't have hurt their existing market share. They could have done an AOL, and sent free CDs around the country - or joined forces with AOL sooner. They had many options, and again - their egos and greed made them blow it.
    • Have consumers, in net, been harmed by Microsoft's giving the browser away for free, bundled?

      You haven't been keeping up with the case. The appeals court ruled that the bundling ("tieing") was not illegal. What was illegal was restrictive contracts and threats in the OEM and ISP markets, which at that time consisted of Netscape's primary distribution channels.

      Remember the "Cutting off the air supply" remark made by a MS executive? -- he was talking about using MS's weight to remove Netscape's ability to distribute their product.
  • by jmorse ( 90107 ) <joe_w_morse&nospYAHOoam,com> on Thursday January 24, 2002 @10:43PM (#2898936) Homepage Journal

    I'm not surprised that Bork opposes that joke of a deal. While he's certainly been a critic of antitrust law in general, he at least sticks to his principles. Many "conservatives" bash the antitrust case out of either deference to Micro$oft (a large campaign contributor) or sheer ignorance.


    Many people overlook another conservative who chose to follow the law and base his thinking on the facts: Thomas Penfield Jackson...the judge in the original antitrust case. Jackson too was appointed by Reagan. In fact, he was appointed specifically to quash antitrust cases that came his way. But U.S. vs. Microsoft was just too compelling...they openly flaunted the law and even went so far as to fabricate evidence (the infamous video showing how difficult it was to remove IE). His findings of fact in the case, which were upheld by the appellate court, paint a picture of an extremely arrogant and socially destructive corporation openly engaging in socially destructive practices in clear violation of the law of the land.


    I long for the days when there were still principled conservatives to be found in positions of power. I can respect an honest difference of opinion...but that's rare anymore. In a world where most conservatives are Enron conservatives [thenation.com] it's nice to see someone take a principled stand (Bork's work for Netscape notwithstanding).

  • Three days left (Score:5, Informative)

    by kenneth_martens ( 320269 ) on Thursday January 24, 2002 @10:59PM (#2898987)
    This is a direct quote from the article, but since it was the very last paragraph and probably not everyone read that far, I think it's worth repeating:

    If you haven't made your comment in U.S. v. Microsoft, you have three days to do so. The e- mail address is microsoft.atr@usdoj.gov while the fax numbers are 1-202-307-1454 and 1-202- 616-9937. As Judge Bork noted, your comment's effectiveness is a function of how intelligently it is rendered. I've received copies of many of the comments sent by readers of this column, and I'm truly impressed. Now we need to multiply them by a hundred or so.
  • During the Reagan era, the term "Evil Empire" generally meant something else....

    'course, times change...
  • hmmmm first he talks about taking a break and then getting ready for the next big thing and then he says:

    NewsForge: How about original games native to Linux?

    Draeker: If I were going to start a new Linux game company tomorrow that's what I would do.

    maybe after the break thats what he'll do.. not be optimistic.. but the idea of cool original games for linux is just thrilling.. granted tux racer was pretty original.. but the linux community needs something more in the way of games..
  • by GoRK ( 10018 ) on Friday January 25, 2002 @02:00AM (#2899538) Homepage Journal
    Ecceptunce-a ooff zee prupused settlement in U.S. f. Meecrusufft vuoold cleer zee rued fur zee cumpuny tu ixtend its munupuly tu must iff nut ell espects ooff cumpooteeng, seys Joodge-a Rubert H. Bork.
    Bork Bork Bork!

    "I dun't theenk it dues unytheeng tu Meecrusufft," seeed Bork in un interfeeoo veet Leenoox Plunet. "I theenk it joost lets zeem cunteenooe-a es zeey vere-a beffure-a."

    Iff thet heppens, he-a seys, Meecrusufft's cuntrul is leekely tu ixtend beyund zee sufftvere-a indoostry, leedeeng tu munupuleees in erees incloodeeng oonleene-a eccess und zee Internet.
    Bork Bork Bork!

    Zee reeleety ooff Joodge-a Bork is fer mure-a interesteeng thun zee cereecetoore-a screebbled by hees inemeees, vhu deesegree-a veet hees "streect cunstroocshuneest" feeoo -- shered veet zee Fuoondeeng Fezeers -- thet gufernment is zee lest resurt, nut zee furst, fur sulooshuns tu suceeetel vues.
    Bork Bork Bork!

    He-a is knoon cheeeffly fur zee tremenduoos perteesun bettle-a thet iroopted vhee he-a ves numeeneted tu zee Uneeted Stetes Soopreme-a Cuoort by Preseedent Runeld Reegun, und thet, tuu, is sed. Fur hees ixpereeence-a in zee lev, ispeceeelly untee-troost lev, is ixtenseefe-a, es is hees schulersheep. He-a hes serfed es curcooeet joodge-a, U.S. Cuoort ooff Eppeels fur zee Deestrict ooff Culoombeea (vheech hes heerd tvu U.S. f. Meecrusufft ceses in zee teeme-a seence-a he-a lefft zee bench), suleecitur generel, und ecteeng etturney generel ooff zee Uneeted Stetes, es vell es 17 yeers es a pruffessur et Yele-a Lev Schuul und 12 yeers in preefete-a precteece-a. He-a is a seneeur felloo et zee Emereecun Interpreese-a Insteetoote-a. Hees buuks incloode-a Sluoocheeng tooerds Gumurreh: Mudern Leeberelism und Emereecun Decleene-a (1996), Zee Unteetroost Peredux: A Puleecy et Ver Veet Itselff (secund ideeshun, 1993), und Zee Tempteeng ooff Emereeca: zee Puleeticel Sedoocshun ooff zee Lev (1989). Poobleeshed in a veede-a fereeety ooff pereeudicels, und freqooent netvurk telefeesiun legel unelyst, Joodge-a Bork hulds B.A. und J.D. degrees frum zee Uneefersity ooff Cheecegu.
    Bork Bork Bork!

    Bork deed vurk fur Netscepe-a in cunnecshun veet zee unteetroost cese-a und hes feeled memurunda in fefur ooff a feending egeeenst Meecrusufft.
    Bork Bork Bork!
  • by igorxa ( 541200 )
    The topic? The Evil Empire's court settlement.

    Wow, I had no idea that the former Soviet Union had even sued anyone.

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