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."
Important for three reasons. (Score:5, Informative)
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.
Re:Important for three reasons. (Score:2, Interesting)
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.
Re:Important for three reasons. (Score:2, Insightful)
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.)
Re:Important for three reasons. (Score:3, Insightful)
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.
Re:Important for three reasons. (Score:2)
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.
Re:Important for three reasons. (Score:2)
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.
See also the second amendment... (Score:3)
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.
Re:See also the second amendment... (Score:3, Offtopic)
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-
Re:See also the second amendment... (Score:5, Insightful)
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" doesn't have much wiggle room in it.
Number 9 is pretty clear, too:
"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.
It's pretty clean compared to number 12, though. Sheesh:
Re:See also the second amendment... (Score:2, Offtopic)
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.
Re:See also the second amendment... (Score:4, Troll)
The constitution cleary states the following.
1) Guns are neccasary in order to form militias.
2) Militias ought to be "well Regulated".
If your argument is that everybody ought to have guns thereby becoming a militia then you have to subject yourself to being "well regulated". I don't think you can have this both ways.
Re:See also the second amendment... (Score:2)
Fourth reason (was Re:Important for three reasons. (Score:2)
Re: (Score:3, Informative)
the firing (Score:2)
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
Re:Bork was just Nixon's henchman (Score:3, Informative)
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.
Re: (Score:2)
Re:Important for three reasons. (Score:2)
The accusations were far more convincing to me than the evasions of Thomas. The GOP operative who organized the smear attack on Hill has since repented and admitted that it was a partisan hatchet job.
Besides that, I tend to think that the job of Supreme Court Justices requires that the best you can say of them should be something more than 'not a proven sexual offender'.
Re:Important for three reasons. (Score:2)
How much power do they need? (Score:3, Insightful)
That's not quite true, but it's a good start. You realize, with their market share, that this power means that Microsoft could instantly destroy Dell, Gateway, Compaq, or any other computer manufacturing company they choose by simply raising that OEM's prices through the roof? That they could bring about such a destruction a bit more slowly by simply raising OEM costs for Windows and Offices up to the retail price? And that the OEMs know this, and so are forced to sign whatever anticompetitive agreement Microsoft wants in order to stay alive?
If you're so libertarian that you don't have any problem with abuse of monopoly power, then what's your problem with the government? Just tell yourself, "The government owns all land within it's borders, and 'property deeds' are just end user license agreements that let me use the land as long as I follow the government's laws." Then you can think of the government as just the luckiest of the big corporations, you can happily bend over for them too, and everything should be A-OK.
Re:How much power do they need? (Score:2)
Wait, you're a libertarian, not an anarchist, right? If you're a libertarian, shouldn't you be happy with the rights of a landlord to bring criminal punishment upon a tenant for breach of contract? It just so happens that this landlord is really big, and the contract [cornell.edu] you have to obey to live here is really long.
Re:How much power do they need? (Score:2)
Since when has physical force been the sole arbiter of power?
There is precious little land left on earth where you can just set up shop and live on your own initiative. This is why pure libertarianism is ridiculous -- it presumes that you have the option of opting out.
Ask anyone in a hurricane disaster area how much fresh bottled water would sell for if there weren't laws against price gouging. If person X commercially controls all the water left in an area, they have just as much power over life as anyone with a gun. But hey, it would be ethically wrong to force them to sell it for less than the market will bear -- even if there's more than enough to go around! Ahh, the wonder of monopoly!
That would be a libertarians problem with the government
No, that would be their problem with the people. The government didn't give themselves the power of force -- we did. We gave it to some parts of the government, and we even give it to private corporations, too! If MS wants to open a security firm, they have the ability to do so. Then they'll be able to use force in upholding the law, as well. Now, would that make them bad or good? I get all confused by these wonderfully black and white worldviews...
Re:How much power do they need? (Score:2)
Clearly not. I can barely understand what tangent you're going off on -- my point was that the citizenry of the United States has given the government the power to enforce the law, using force when necessary. It is not a power they plucked from the sky and use against us.
We realized, from several thousand years of history, that the best (or perhaps the least worst) situation is to have a police and judiciary that are tasked with that sole responsibility, in the hopes that an objective, professional third party will allow for the most even-handed application of force when necessary. We instituted checks on the various policing agencies (for example all the redundancy and competition over jurisdictions) to attempt to ensure that no one policing agency gets too powerful.
However, you use the term "enforce the law". This demonstrates your government public school education clearer than anything else. The civil power and responsibilities concerning arrest resolve around harm done or direct threat of harm, where "law enforcement" means the initiation of force against people who have done no harm.
i find this curious -- where on earth did you find these wonderfully specific, yet completely ludicrous "definitions"? These are in no dictionary I know of (granted i was clearly brainwashed by my lousy governemnt school education, where we were forced to agree on the meanings of common english phrases, but clearly your education has passed such limitations).
Law enforcement means to enforce the law -- for the executive to uphold the law by whatever means are prescribed by the legislative, in such a manner and process as allowed by the judiciary. Whether that means sending out a speeding ticket or executing a prisoner it is the job of the executive to enforce the laws through the police, the dept of Prisons, etc.
Do you understand
Not at all -- somewhere in there you defined "law enforcement" to mean, essentially, the physical persecution of innocents. I hardly believe that is the generally accepted definition. I think this demonstrates your weird-ass schooling clearer than anything else. The inability to use language as it stands, and redefining words to suit your own arguments is pointless and will never convince anyone of your ideological correctness.
If you want to make an argument against police brutality, feel free, i doubt anyone is going to take the opposite view. If you want to make an argument that police should not exist, or that no branch of the government (or any agency) should have any ability to compel compliance with laws, then say so. if you're arguing that additional agencies should have the ability to compel action through force, then say that.
As it stands, all i ever hear from Libertarians is that "only the government can use force" but I have yet to hear what the specific problem or proposed solution is! Are others to use force? Is government to not use force? Is this an argument for more or less?
Don't try to hide your beliefs behind some semantic shell game of on-the-fly redefinitions. I would expect you to take a little more pride in the ideology you believe will fix the world...
Re:Not constructionist enough... (Score:5, Insightful)
That's a gross oversimplification. Microsoft wouldn't be worth jack squat if there weren't billions of .doc and .xls files out there that their products process better than anybody else's.
Why can't others duplicate Microsoft's products? Because Microsoft enjoys the dual protections of copyright and trade secrets. Without either one, competitors would swarm out of the woodwork and eat Microsoft's lunch because office software is a mature product that should be a commmodity by now.
How are the copyright and trade secret protections facilitated? By the heavy hand of government, of course. It is interesting that when the U.S. Constitution was written, there was no single technology such as software that could combine the two protections in such a powerful way. The powerful combination allows the barrier of entry into a monopolized software market to be almost infinite.
Take the example of Sun, who is giving away a capable office suite for free. Most people doubt that even at this price that they can significantly impact Microsoft's market share. This is largely because their handling of proprietary .doc and .xls files is less than perfect. This proves that microsoft's chosen pricing has little to do with the dynamics of this market.
In fact, I'd argue that if you can't even give a product away, it's not a market. There is no market for office software today. Just a government-facilitated fiefdom.
Re:Not constructionist enough... (Score:2)
Actually it's largely because they don't believe Sun is fully committed behind it. Are they? Is Sun willing to risk the company on being a Microsoft competitor, or are they just tossing something out to make a point?
But I do agree that file formats should be documented. In fact I think it should be a Federal law and apply to everybody as it has been a pain in the butt with every product I've ever used.
Re:Not constructionist enough... (Score:2)
it would be irresponsible to shareholders to "risk the company" on any single product or technology. that's why MS continues to make and market xbox, office, sql server etc while saying they are "betting the company" on
If MS was betting the company on
Re:Not constructionist enough... (Score:2)
No.
Without the proprietary formats, all of Microsoft's office software features could be cloned by any midsize software company within 24 months.
Re:Not constructionist enough... (Score:2)
Congress has the power to regulate interstate (as well as international) commerce. Whether that commerce is voluntary or not...
Re:The Abused Interstate Commerce Clause (Score:2)
If you want to go outside the Constitution to find the definitions of govt power, and use "strict constructionism" as your excuse, feel free, but you'll understand if a lot of us don't go along for the ride...
Re:The Abused Interstate Commerce Clause (Score:3, Informative)
I didn't invent "constructionist" as a term, nor did I invent going back to the arguments and reasons for something to discover its arguments and reasons for existing. That particular discovery technique somewhat predates me as you would know if you read a book.
"On every question of construction [of the Constitution] let us carry
ourselves back to the time when the Constitution was adopted, recollect the
spirit manifested in the debates, and instead of trying what meaning may be
squeezed out of the text, or invented against it, conform to the probable
one in which it was passed." --Thomas Jefferson, letter to William Johnson,
June 12, 1823, The Complete Jefferson, p. 32.
Bob-
Re:The Abused Interstate Commerce Clause (Score:2)
As written, the text of the Constitution was ratified by the various states of the union, and thus, as written, they accepted that amount of power.
The federalist (or Anti-federalist) papers were not voted on by anyone. Persuasive as they may or may not be, and educational, they are in no way limiting to the unambiguously broad powers that the interstate commerce clause gives Congress.
I did not claim you invented the notion of constructionism, only that you seek to use it as an excuse to justify your own reinterpretation of the Constituion into your own ideological form. What, after all, is the point of having a written Constitution and going through that messy process of ratification and amendment, if the ultimate legal restraints and responsibilities of governemnt will be defined by whatever one-sheets are published anonymously in New York that given week?...
Re:Not constructionist enough... (Score:2)
The courts have always had the power to ignore, modify or selectively enforce contracts that were held not to be in the public interest
Libertarian counter argument (Score:2)
Guns are so last century. In the digital age violence takes other forms. What Microsoft have done is to destroy competing products by changing the underlying OS so they no longer work.
To me that is similar to Chrysler competing with Ford by bombing their factories. I realize there are also differences, but to my libertarian instincts, such sabotage must be wrong, even if Mill or Rand didn't have the foresight to figure out exactly how to treat software in a natural rights manner.
That's not to mention all the theft of intellectual property and contract violations that is standard practice in Redmond.
Of course, as you point out, the actual laws that Microsoft has been caught by are doubtful in many ways, but that doesn't mean that Gates and his gang are not a bunch of ruthless criminals.
Re:No troll (Score:2, Insightful)
Many people do not have that choice. The whole point of Microsoft's manopoly is that they're stifling choice and, incidentally, innovation. It's all very well to say that you have the choice of using another product, but Microsoft has deliberately used its power in a manner that has resulted in a situation where anyone who uses an alternative can find themselves at a major disadvantage--witness, if you will, the ubiquitous .doc format. Sure, I can use AbiWord or StarOffice, and send files as html or txt, but what happens when someone sends me a .doc file because everyone else uses Microsoft Word? Yes, AbiWord and SO have built in Word compatibility. Why do you think that is? Because Microsoft has such control over the market that without conforming to their "standards" you are crippled. The open source support for .doc is imperfect, and always one step behind as Microsoft constantly changes the format system each time they bring out a new version of Word. Why do you think that is? The only reason I can think of to do something so pointless is to keep the competition one step behind. It's not like there're any new features in Word that would require significant reworkings of the .doc format. Additions yes. Modifications? I don't think so.
It's all very well to say that everyone has a choice, and that if we're using Microsoft software it must be because we all chose to, but that's a very naive and simplistic, not to mention unexamined and self-deluding viewpoint.
If I weren't so nice, I'd be inclined to think you're a Microsoft employee, trolling (quite successfully I might add. It's not often I meet a troll browsing at +3).
Re:No troll (Score:2, Informative)
The Macintosh for one. It runs a very nice version of Microsoft Office that is fully compatible with the Windows version.
So even if you absolutely must have 100% compatibility with MS Office, you still have a very viable choice. Or are you saying that the Macintosh is crap?
supreme court appointee? (Score:3, Informative)
Re:supreme court appointee? (Score:3, Insightful)
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.
Re:supreme court appointee? (Score:2)
Re:supreme court appointee? (Score:2)
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.
The "Remarkability" of the Public Eye? (Score:5, Interesting)
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.
Attorney: he's the #1 authority on the issue (Score:5, Insightful)
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.
Re:Attorney: he's the #1 authority on the issue (Score:2, Insightful)
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.
Re:Attorney: he's the #1 authority on the issue (Score:2)
>'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
Re:Attorney: he's the #1 authority on the issue (Score:2)
> 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
Just in case someone believes you... (Score:4, Informative)
Robert Bork formerly practiced antitrust law, taught antitrust law at Yale Law School for nearly twenty years, and wrote what is perhaps the most influential book on antitrust law in recent decades. (The Antitrust Paradox: A Policy at War with Itself, New York, Basic Books, Inc., 1978.)
WTF? (Score:4, Funny)
Huh? This is Slashdot, right?
Destiny? (Score:2, Funny)
Weeeee...Sporkin + Bork sport (Score:5, Funny)
What bodes ill... (Score:5, Informative)
"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.
Re:What bodes ill... (Score:5, Insightful)
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.
the state and capitalism (Score:2)
Danny.
Re:What bodes ill... (Score:2)
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.
.
Re:What bodes ill... (Score:2)
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.
Re:What bodes ill... (Score:2)
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)
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.
Re:What bodes ill... (Score:2)
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.
Re:What bodes ill... (Score:2)
Really? Do you also not want the government to protect your property? What about the government jailing murderers and rapists? Would you rather send your complaints to a dot.cop?
Re:What bodes ill... (Score:2)
Oddly enough they still believe this is possible despite the fact it has never been accomplished anywhere on the planet at any time. Even the most primitive tribes have governments.
Where's the Innovation? (Score:5, Informative)
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.
Capitalism does spring up like crabgrass. (Score:2, Insightful)
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-
Re:What bodes ill... (Score:2)
Re:What bodes ill... (Score:2)
The expression I've heard that makes sense is:
Did government help MS to achieve their monopoly? (Score:3, Interesting)
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?
Re:Did government help MS to achieve their monopol (Score:2, Interesting)
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.
Re:Did government help MS to achieve their monopol (Score:2)
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.
Okay, I'm calling your bluff (Score:3, Informative)
Re:Okay, I'm calling your bluff (Score:2)
Re:Did government help MS to achieve their monopol (Score:3, Interesting)
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.
Re:Did government help MS to achieve their monopol (Score:2)
An interesting read... (Score:4, Funny)
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)
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.
Re:I am impressed! (Score:2)
Of course it will! Except that in the modern interpretation, it is the invisible hand that puts money in the pockets of politicians.
Exactly. The only difference is... (Score:2, Interesting)
Some people suggest it's "economic control" verses "private choice control", but it all ends up being control.
I consider Bork to be a hypocrite in so far that he both argues for "limited governemnt" and for "one that enforces what I think is right."
Freedom means freedom to do what other people find objectionable, the limit being force or fraud.
Bob-
Adam Smith. (Score:2)
The subjects of every state ought to contribute toward the support of the government, as nearly as possible, in proportion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the state
Impressions of Bork (Score:3, Interesting)
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.
Re:Impressions of Bork (Score:2)
Re:Impressions of Bork (Score:2)
Has Hell frozen over? (Score:4, Funny)
Wow. Either this is a fever dream or reality has just warped.
Re: (Score:2)
Do behavioural remedies work ... ? (Score:2, Interesting)
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
- 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
Re:Do behavioural remedies work ... ? (Score:2)
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.
.
The "Saturday Night Massacre" nailed Bork... (Score:2, Informative)
"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)
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.
Why Bork was Borked -- some more background (Score:4, Insightful)
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.
Re:Why Bork was Borked -- some more background (Score:2)
You just got modded up to +20 in my book, that's one of the most interesting comments I have ever read on
Personally I'm ashamed I did not know that, but then I was only 5 when Watergate happened.
Re:On the brink of nuclear war (Score:2)
Kissinger also did an awful lot of really evil shit. Have you read the book by Christopher Hitchens?
Suppose our worse fears are realised (Score:4, Interesting)
Excellent interview. (Score:2)
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.
He's on the right side of this BUT... (Score:3, Informative)
Where's the Harm? (Score:2, Interesting)
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.
Re:Where's the Harm? (Score:2)
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.
Another conserative opposed to the deal (Score:4, Insightful)
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)
Evil Empire? (Score:2)
'course, times change...
the next big thing? (Score:2)
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..
Ze Sveedish Chef Translation, Bork Bork Bork! (Score:3, Funny)
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!
Evil Empire? (Score:2, Funny)
Wow, I had no idea that the former Soviet Union had even sued anyone.
Um... no (Score:2)
Re:This may be Off Topic, but... (Score:2, Funny)
Re:This may be Off Topic, but... (Score:2)