An antitrust trial against Google is the most significant attempt in decades to undo the Bork consensus
Americans have long been skeptical of big business. Thomas Jefferson, Theodore Roosevelt and Harry Truman all tried to constrain the power of large companies. Their efforts were part of a national culture that long emphasized individual freedom.
In the 1960s, however, a group of conservative scholars began arguing that large corporations had been unfairly maligned. These scholars — led by Robert Bork, then an obscure law professor — made the case that big business was often efficient and innovative. And if a large company did try to take advantage of consumers, these scholars said, a competitor could swoop in and lure away those consumers.
For years, Bork and his allies failed to persuade Washington to embrace their views. But after the U.S. economy struggled during the 1970s, policymakers became worried that antitrust laws were keeping American companies from competing with Japanese and European rivals. Slowly, the Bork view won converts, among both Republicans and Democrats. Since the 1980s, that view has dominated, allowing corporations to grow much larger.
I wanted to tell you this history today because it’s a crucial backdrop to the Google antitrust trial that began this week. That trial is the most significant attempt in decades to undo the Bork consensus.
Entwined in our lives
The 10-week trial, set to begin Tuesday, amps up efforts to rein in Big Tech by targeting the core search business that turned Google into a $1.7 trillion behemoth.
Google certainly looks like a monopoly by many measures. More than 90 percent of web searches worldwide are done on Google.
This level of dominance can create problems for anybody who isn’t a Google executive or shareholder. The company is so profitable that it can shape government policies through lobbying and donations. Google can potentially hold down wages for anybody who wants to work in internet search: Where else is that person going to go? Google can also essentially force consumers to turn over their personal data to the company; to exist in today’s economy, you need to interact with Google’s various services, like search, Gmail, Google Cloud and YouTube.
“For the past decade, Google and other tech giants have become incredibly powerful and entwined in just about every aspect of our lives,” Cecilia Kang, one of the Times reporters covering the Google trial, told me.
The Justice Department’s case against the company (and a related lawsuit brought by 38 states and territories) argues that Google has unfairly maintained its dominance by paying other companies billions of dollars a year. Payments to Apple, for example, are the reason that Google is the default search engine on iPhones. As a result, the Justice Department says, competitors to Google cannot establish themselves.
The jockeying over the trial has already been intense. The Justice Department and Google have deposed more than 150 people for the case and produced more than five million pages of documents. Google has argued that Jonathan Kanter, the Justice Department’s head of antitrust, is biased because of his earlier work as a private lawyer representing Microsoft and News Corp. The Justice Department has accused Google of destroying employees’ instant messages that could have contained relevant information for the case.
Ultimately, the Google trial will test whether antitrust laws written in 1890 to break up sugar, steel and railroad monopolies can still work in today’s economy, said Rebecca Allensworth, a professor at Vanderbilt University’s law school.
“The Google trial is a big test for the government’s entire antitrust agenda because its theory of monopolization is very much in play with many big tech companies,” she said.
Google responds that its success is simply a reflection of the quality of its products. “People don’t use Google because they have to,” Kent Walker, Google’s top lawyer, has written. “They use it because they want to.”
The government’s biggest challenge in winning this case is closely connected to Bork’s framework for antitrust policy. He argued that the most rigorous standard for judging potential monopolies was consumer prices. Only when economic analysis proved that a company was so powerful that it could raise consumer prices should regulators step in, Bork and his allies said. Otherwise, the government was just guessing about when a company was so big as to be problematic.
Who benefits?
Google, of course, charges consumers nothing for its main products. The company makes money in other ways, such as advertisements. The same dynamic exists elsewhere in the technology industry. Facebook does not charge consumers for an account, either. Amazon does charge for products on its site, but often not any more than other retailers.
In recent years, a rising generation of legal scholars has tried to overturn the Bork consensus by arguing that large companies can still do damage even without increasing prices. They can hold down wages, warp government policy, trample on privacy or spread misinformation.
(One member of this rising generation is Lina Khan, whom President Biden named to run the Federal Trade Commission.)
As part of their argument, these critics of big business — the intellectual heirs to Theodore Roosevelt — can point to macroeconomic data. In the four decades since Bork’s view triumphed, wages for most Americans have grown more slowly than either corporate profits or the incomes of the wealthy. Corporate consolidation seems to have been better for a small slice of privileged people, including Google executives, than for most Americans.
In the long term, these critics hope to change the legal standard for evaluating large companies, much as Bork and other scholars slowly did in the late 20th century. Doing so will probably require new laws as well as different attitudes among regulators and judges. Such a project might take decades, if it ever succeeds.
In the meantime, the Justice Department’s lawyers hope to persuade Amit Mehta, the federal judge hearing the case, that Google has violated even the lenient antitrust laws of today.
