Why they're smearing Lina Khan(pluralistic.net)
pluralistic.net
Why they're smearing Lina Khan
https://pluralistic.net/2023/07/14/making-good-trouble/
45 comments
Why do you think the Activision merger is bad? And how could the FTC change their case to win?
Khan and the "Neo-Brandeisians" have a legal theory, which to oversimplify, holds that the true meaning of the antitrust statutes is "big business is antithetical to democracy, and so the federal government is empowered to stop businesses getting bigger." The current precedent in antitrust holds that antitrust means that the government is only empowered to act when bigness results in consumer harm, mostly in the form of higher prices.
Note, legal theories are not like scientific theories! Courts can be influenced by legal theories. And in fact, the current mainstream in antitrust, which focuses on consumer harm, started as a legal theory propounded by the likes of Bork (yes, that Bork) and Posner. Because it has been adopted by the courts, especially by the Supreme Court, it is the precedent.
Trial courts are bound to follow the precedent! So, of course the legal strategy was bound to lead to losses in court. You can win under this strategy, but only in the Supreme Court, which isn't bound to follow the precedent, but mostly prefers to follow its own precedent. Getting to the Supreme court typically takes years, and it requires the Supreme Court wanting to take the case.
We'll see in the next stage if this was the strategy. If I were pursuing this strategy, I would say so. Then the losses wouldn't hurt morale!
Note, legal theories are not like scientific theories! Courts can be influenced by legal theories. And in fact, the current mainstream in antitrust, which focuses on consumer harm, started as a legal theory propounded by the likes of Bork (yes, that Bork) and Posner. Because it has been adopted by the courts, especially by the Supreme Court, it is the precedent.
Trial courts are bound to follow the precedent! So, of course the legal strategy was bound to lead to losses in court. You can win under this strategy, but only in the Supreme Court, which isn't bound to follow the precedent, but mostly prefers to follow its own precedent. Getting to the Supreme court typically takes years, and it requires the Supreme Court wanting to take the case.
We'll see in the next stage if this was the strategy. If I were pursuing this strategy, I would say so. Then the losses wouldn't hurt morale!
I suspect that's her goal, even if implicit, to take it to the supreme court to get her precedent. It's a poor strategy though, and shows a fundamental misunderstanding of her odds and position. The emphasis on the supreme court tends to screw people up. A "vanity" as it were.
She was chosen as a celebrity on the issue, due to her paper and outspokenness, not her technically prowess. A fatal flaw with most political appointees. I suspect some of her supporters in the admin likely hoped she would be less controlling on cases but be dogged in pursuit. But perhaps others thought the opposite. An incompetent zealot, can be a perfect buffer.
The Activision case is a fiasco, it's huge at 75b, there's lots of nice evidence, etc. It upends her core selling points.
She was chosen as a celebrity on the issue, due to her paper and outspokenness, not her technically prowess. A fatal flaw with most political appointees. I suspect some of her supporters in the admin likely hoped she would be less controlling on cases but be dogged in pursuit. But perhaps others thought the opposite. An incompetent zealot, can be a perfect buffer.
The Activision case is a fiasco, it's huge at 75b, there's lots of nice evidence, etc. It upends her core selling points.
> legal theories are not like scientific theories!
Good advice. Because unlike a scientific theory no one can really prove (or disprove) her opinion about what policy should be applied to antitrust issues. It doesn’t matter in politics who’s “right” in this way, just who can convince others that they’re right. (the “right” people too)
Good advice. Because unlike a scientific theory no one can really prove (or disprove) her opinion about what policy should be applied to antitrust issues. It doesn’t matter in politics who’s “right” in this way, just who can convince others that they’re right. (the “right” people too)
Big will not be a danger to democracy if money weren't free speech (or something to that effect)
What were the precedents before Bork and Posner?
More Brandeisian. Hence the name, Neo-Brandeisian. But those precedents were overturned by the Supreme Court.
Only the Supreme Court can overturn the precedents. But since it is interpretation of statutes, Congress can change the statutes.
Only the Supreme Court can overturn the precedents. But since it is interpretation of statutes, Congress can change the statutes.
Not the person you were replying to.
Consoles rely on 3rd party support to be successful. Microsoft just bought out one of the largest 3rd party publishers in the gaming industry. By failing to stop it, it's signaling to other players in the console space that they shouldn't bother continuing in the business as there is no way they can compete with the spending power of Microsoft - whose market cap is >14x both their competitors combined.
Consoles rely on 3rd party support to be successful. Microsoft just bought out one of the largest 3rd party publishers in the gaming industry. By failing to stop it, it's signaling to other players in the console space that they shouldn't bother continuing in the business as there is no way they can compete with the spending power of Microsoft - whose market cap is >14x both their competitors combined.
In addition to what others said, PS5-tier consoles with custom silicon are extremely expensive to develop.
Sony needs a critical mass of 1st/3rd party games for future competitive PlayStations to even exist. Otherwise, Sony has to bow out, and Microsoft has a pseudo monopoly, which harms US consumers and the games industry.
Activision is a huge chunk of the oxygen Sony's Playstation needs to breathe, just like Zenimax was.
This is tricky in court because Microsoft can wave their hands and point to "competing" platforms like iOS, Nintendo, Steam and such. Microsoft's argument sounds very convincing to a judge who has never touched an Xbox controller.
Sony needs a critical mass of 1st/3rd party games for future competitive PlayStations to even exist. Otherwise, Sony has to bow out, and Microsoft has a pseudo monopoly, which harms US consumers and the games industry.
Activision is a huge chunk of the oxygen Sony's Playstation needs to breathe, just like Zenimax was.
This is tricky in court because Microsoft can wave their hands and point to "competing" platforms like iOS, Nintendo, Steam and such. Microsoft's argument sounds very convincing to a judge who has never touched an Xbox controller.
Two questions there. On the first, for a lot of us, the fact that you didn't name the other party of the merger is exactly why we suspect it. Microsoft has a pretty littered history of anti competitive tactics. An even more spotted history of acquiring things to let them die. (To be fair, I don't think there are that many mergers that work out in the mid to long term?) So, the fact that a lot of the legal decision came down to taking Microsoft's word that they wouldn't be Microsoft is concerning on its own.
On the second? I confess I didn't follow the arguments they were making, all told. Love to see analysis here.
On the second? I confess I didn't follow the arguments they were making, all told. Love to see analysis here.
Cory is a bit radical, yes.
However, some of your talking points I suspect are coming from the WSJ which I think is the Cory for the other side.
Philosophically, I think one must not be afraid to lose, it leads to inaction.
https://www.goodreads.com/book/show/34397551-the-chickenshit...
However, some of your talking points I suspect are coming from the WSJ which I think is the Cory for the other side.
Philosophically, I think one must not be afraid to lose, it leads to inaction.
https://www.goodreads.com/book/show/34397551-the-chickenshit...
I have no talking points, i'm giving you my own analysis. This is a pretty obvious situation, you will find views like mine (and cory's!) in a lot of places, across the ideological spectrum.
Even if you just throw out the clear astroturfing, you will find this - there are plenty of people who believe that amazon, et al are doing a lot of harm, but that she is not going to be able to the fix that effectively with the current approach.
Plus, again, the people who do this for a living in her organization don't buy it either. I've met a number of them over the years living in DC (plenty of then had been there a long ass time). These are people who believe in the overall mission, but think the tactics are bad.
71 senior-level attorneys left in 2021-2022 (99 total but 27 were planned retirements, so let's give them a pass).
That's a lot for them - the most in decades.
https://news.bloomberglaw.com/antitrust/senior-ftc-staff-dep...
I'm not sure how you can look at all of this and think it's working well.
She's even now arguing that the fact that she's losing means that Congress should give her more power.
This is overall a bad tactical plan.
It's fine to lose occasionally. Constantly losing like she is doesn't work though.
The book you cite doesn't even try to argue that losing often is a good idea (AFAIK, it's been a while since I read it. It was a tough read)
That's the thing - cases are winnable, just not by completely out there theories.
Take one of them to task on something with only moderate or mild extension of current legal theories. You don't need the world's strongest remedy. You just need to win.
Then use that to extend your theories a little more and then a little more and a little more.
That is how this works - small change until the large thing you wanted to achieve is just a step away.
This approach has been wildly successful, both for conservatives and liberals in the courts.
The attempts at sudden leaps sometimes works, but like it's a few percent vs very high % by strategically moving forward.
Once you do that, admiral tarkin was right, "fear will keep the other systems in line"
Large companies were afraid of what happened to MS, even though it wasn't broken up. This let the next group of small companies grow big.
Nobody is afraid of anyone who loses constantly.
(And the ninth circuit just denied their bid to stay the judge's order. Of any circuit that might bite, the ninth would be the one)
Even if you just throw out the clear astroturfing, you will find this - there are plenty of people who believe that amazon, et al are doing a lot of harm, but that she is not going to be able to the fix that effectively with the current approach.
Plus, again, the people who do this for a living in her organization don't buy it either. I've met a number of them over the years living in DC (plenty of then had been there a long ass time). These are people who believe in the overall mission, but think the tactics are bad.
71 senior-level attorneys left in 2021-2022 (99 total but 27 were planned retirements, so let's give them a pass).
That's a lot for them - the most in decades.
https://news.bloomberglaw.com/antitrust/senior-ftc-staff-dep...
I'm not sure how you can look at all of this and think it's working well.
She's even now arguing that the fact that she's losing means that Congress should give her more power.
This is overall a bad tactical plan.
It's fine to lose occasionally. Constantly losing like she is doesn't work though.
The book you cite doesn't even try to argue that losing often is a good idea (AFAIK, it's been a while since I read it. It was a tough read)
That's the thing - cases are winnable, just not by completely out there theories.
Take one of them to task on something with only moderate or mild extension of current legal theories. You don't need the world's strongest remedy. You just need to win.
Then use that to extend your theories a little more and then a little more and a little more.
That is how this works - small change until the large thing you wanted to achieve is just a step away.
This approach has been wildly successful, both for conservatives and liberals in the courts.
The attempts at sudden leaps sometimes works, but like it's a few percent vs very high % by strategically moving forward.
Once you do that, admiral tarkin was right, "fear will keep the other systems in line"
Large companies were afraid of what happened to MS, even though it wasn't broken up. This let the next group of small companies grow big.
Nobody is afraid of anyone who loses constantly.
(And the ninth circuit just denied their bid to stay the judge's order. Of any circuit that might bite, the ninth would be the one)
Yeah maybe your are right. It will take time to change the system.
Luckily, I think everyone agrees that corporate power is bad.
An Antitrust judiciary hearing happened one day after she lost the MS case. She actually received support from Republicans. Maybe change is coming. Maybe even the republicans see how bad some of these judgements are. The MS one was especially very poorly written.
I think she will be here for a while.
The article:- https://prospect.org/power/2023-07-14-jim-jordan-misfires-at...
Luckily, I think everyone agrees that corporate power is bad.
An Antitrust judiciary hearing happened one day after she lost the MS case. She actually received support from Republicans. Maybe change is coming. Maybe even the republicans see how bad some of these judgements are. The MS one was especially very poorly written.
I think she will be here for a while.
The article:- https://prospect.org/power/2023-07-14-jim-jordan-misfires-at...
>...it would be unfair to put the merger on hold in order to have a full investigation into its competition implications because Microsoft and Activision had set a deadline of July 18...
On this part, I disagree with the author's take. It's not just that there is a deadline, but that the FTC took a very long time to take any action on this deal and set their own deadlines to land after the known merger deadline.
The FTC didn't act professionaly or with the right level of urgency and is seemingly trying to run out the clock on the deal.
On this part, I disagree with the author's take. It's not just that there is a deadline, but that the FTC took a very long time to take any action on this deal and set their own deadlines to land after the known merger deadline.
The FTC didn't act professionaly or with the right level of urgency and is seemingly trying to run out the clock on the deal.
I sortof see where you're coming from, but if MS and Activision want to do this deal, they can just extend the time period, right?
Ultimately an agreement between two private companies is not grounds for the government to cave.
I actually thought this deal was ok, but the linked Matt Stroller piece has convinced me otherwise.
Ultimately an agreement between two private companies is not grounds for the government to cave.
I actually thought this deal was ok, but the linked Matt Stroller piece has convinced me otherwise.
> I sortof see where you're coming from, but if MS and Activision want to do this deal, they can just extend the time period, right?
Extending the deal is quite a big effort, especially when the FTC waited to take action so close to the deadline. It's pretty obvious to me that the timing of this was intentional on the FTC's part, but I could be wrong. I know I would have started conversations and legal action last year if I ran the FTC.
Extending the deal is quite a big effort, especially when the FTC waited to take action so close to the deadline. It's pretty obvious to me that the timing of this was intentional on the FTC's part, but I could be wrong. I know I would have started conversations and legal action last year if I ran the FTC.
The Judge had to remind FTC that they don't work for Sony.
> The Republican project is a matter of getting turkeys to vote for Christmas by doing a lot of culture war bullshit, cruelly abusing disfavored sexual and racial minorities. This wins support from low-information voters who'll vote against their class interests and support more monopolies, more tax cuts for the rich, and more cuts to the services they rely on.
As a Republican who admires much of what Khan has been doing, I must point out: insulting people who agree with you and want to help you, is a bad strategy. This is not how you win friends and influence people, progressives!
As a Republican who admires much of what Khan has been doing, I must point out: insulting people who agree with you and want to help you, is a bad strategy. This is not how you win friends and influence people, progressives!
That's really a mistake - don't assume progressives are here to make friends OR influence people, sometimes they're just plain old trolls who have no real plan for society outside of "winning". Ask them what happens day 1 after their revolution, it's always a hand wringing and a half to say the least.
Anyway, I do look forward to Khan's dismissal. Government was going to waste my money anyway, but if I have any faith in the system it'd be that Khan receives none of my money.
Anyway, I do look forward to Khan's dismissal. Government was going to waste my money anyway, but if I have any faith in the system it'd be that Khan receives none of my money.
Khan has done a lot of good things. Government loves wasting money, but so do monopolistic corporations who use M&As to avoid needing to compete and innovate. Let them fight, its infinitely preferable to letting them team up.
That'd be a fine wish, if they hadn't already teamed up. Microsoft is responsible for PRISM for godsake, they are the most compliant corp to regulations than pretty much all others.
While ideologically I agree with this sentiment, is there any good neutral take on this issue?
One specific criticism I heard against Lina Khan is that while her heart might be in the right place, her lack of legal expertise is in big part to blame for the failures in court. Her approach to litigation; the legal theories, precedence etc. she built her case upon- well apparently she could do better.
One specific criticism I heard against Lina Khan is that while her heart might be in the right place, her lack of legal expertise is in big part to blame for the failures in court. Her approach to litigation; the legal theories, precedence etc. she built her case upon- well apparently she could do better.
Xbox is currently far behind PlayStation in market share, and PlayStation has been using its market dominance to negotiate exclusive deals with publishers, which has been detrimental to gamers who do not own a PlayStation console.
The article mentions that the FTC was previously seen as being too close to big business. However, the only other regulatory body that has opposed the acquisition of AB by Microsoft is the UK's CMA, which is led by a person with ties to Sony. In addition, the FTC's arguments in court seemed to be more focused on protecting Sony than on protecting consumers.
The EU is generally very critical of market dominance by large companies, but it has approved the acquisition of AB. This suggests that not all regulatory bodies are puppets of big business.
The FTC has been criticized for being too focused on preventing large acquisitions and not doing enough to protect consumers. As a result, the FTC has been seen as being on the side of Sony, which is the dominant player in the high-end gaming market.
The article mentions that the FTC was previously seen as being too close to big business. However, the only other regulatory body that has opposed the acquisition of AB by Microsoft is the UK's CMA, which is led by a person with ties to Sony. In addition, the FTC's arguments in court seemed to be more focused on protecting Sony than on protecting consumers.
The EU is generally very critical of market dominance by large companies, but it has approved the acquisition of AB. This suggests that not all regulatory bodies are puppets of big business.
The FTC has been criticized for being too focused on preventing large acquisitions and not doing enough to protect consumers. As a result, the FTC has been seen as being on the side of Sony, which is the dominant player in the high-end gaming market.
> PlayStation has been using its market dominance to negotiate exclusive deals with publishers, which has been detrimental to gamers who do not own a PlayStation console.
Then Microsoft or gamers should sue to stop exclusives and show they're being hurt.
Then Microsoft or gamers should sue to stop exclusives and show they're being hurt.
Doctorow has been lionizing Khan since her appointment. She and the FTC were dormant for almost the past two full years and came out swinging relativly recently. It's hard to tell if the slow speed of action is necessary or if we should have seen more as early as 2021. It feels late, disorganized and the work of someone with a political axe to grind.
Slow speed? You could take the chair of that org and act faster?
The conclusion of this piece says:
We shouldn't have to tolerate this sleaze. And if we back Khan and her team,
they'll protect us from these scams. Don't let them convince you to give up
hope. This is the start of the fight, not the end.
$$$ just in time for elections.. that's all it is
Amazon's Antitrust Paradox is definitely worth a read. <https://www.yalelawjournal.org/note/amazons-antitrust-parado...>
As a non-American reader this article really puts the sickness of modern politics on display.
The public discourse is fundamentally unwell.
The public discourse is fundamentally unwell.
Smearing is the new mainstream way of silencing open discussions.
You can always tell something is up when the use of certain words / phrases are used to discredit the other person, always without supporting data.
This is a form of censorship and it's growing more frequent.
History has shown us that the ones doing the censoring are always the bad guys.
You can always tell something is up when the use of certain words / phrases are used to discredit the other person, always without supporting data.
This is a form of censorship and it's growing more frequent.
History has shown us that the ones doing the censoring are always the bad guys.
>> You can always tell something is up when the use of certain words / phrases are used to discredit the other person, always without supporting data
You mean language like "The Republican project is a matter of getting turkeys to vote for Christmas by doing a lot of culture war bullshit, cruelly abusing disfavored sexual and racial minorities. This wins support from low-information voters who'll vote against their class interests"?
You mean language like "The Republican project is a matter of getting turkeys to vote for Christmas by doing a lot of culture war bullshit, cruelly abusing disfavored sexual and racial minorities. This wins support from low-information voters who'll vote against their class interests"?
I mean it's Cory Doctorow, he always says stuff like this. The linked Matt Stoller piece is much better on the details and in terms of arguments.
Apparently, to a socialist, a person can’t merely have contrary convictions; they must be stupid and deluded.
Lina Khan is fighting the system. She might be head of the FTC but that means little when the system is the reason we have the mega corps we have. Unless she can change minds she will not be able to change the system. Her best bet is to make a dent on the problem before the new administration comes in and then go back to academia and change minds there so that in 20 or so years when the current crop of students become judges they will change the way the system works.
I think academia and government have been focused on labor more than this[1], but the wildcard here is consumers who like things just the way they are, and judges still willing to go along.
[1] https://docs.house.gov/Committee/Calendar/ByEvent.aspx?Event...
[1] https://docs.house.gov/Committee/Calendar/ByEvent.aspx?Event...
"This wins support from low-information voters"
Lol, is that the term we use now to call people stupid? I guess "low-education" isn't acceptable politically in a country where much of the education is segregated and privatised.
"But while tech leaders are 100% committed to the project of permanent oligarchic takeover of every sphere of American life, they are less full-throated in their support for hateful, cruel discrimination against disfavored minorities (in this regard, tech leaders resemble the corporate wing of the Democrats, which is where we get the "Silicon Valley is a Democratic Party stronghold" narrative)."
Silicon Valley in a nutshell indeed. Cory has a sharp tongue.
Lol, is that the term we use now to call people stupid? I guess "low-education" isn't acceptable politically in a country where much of the education is segregated and privatised.
"But while tech leaders are 100% committed to the project of permanent oligarchic takeover of every sphere of American life, they are less full-throated in their support for hateful, cruel discrimination against disfavored minorities (in this regard, tech leaders resemble the corporate wing of the Democrats, which is where we get the "Silicon Valley is a Democratic Party stronghold" narrative)."
Silicon Valley in a nutshell indeed. Cory has a sharp tongue.
A confusing mix of realistic hope that things might get better with constant reminders of the endemic corruption that is currently status quo.
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She is also consistently ignoring the advice of the very seasoned lawyers in her own organization, who are not in political positions (federal agencies have both career employees and political ones).
Her organization has started to lose faith with her, and even scores in things like "honesty and integrity" dropped by 50% (from 84 points to <40 points), with comments pointing out they feel like they are being forced to pursue cases with frivolous arguments. See FEVS[1].
None of these are good things.
Cory wants her to be successful because she's a true believer, and she is a true believer in things he supports. But the true believers are rarely (maybe never) successful when they have zero pragmatism.
So far, she has zero pragmatism. She is consistently losing in court (Meta/Within, Lumina/Grail, Activision/MS, Altria/Juul, etc).
If Lina continues on the path she is on, she will be totally unsuccessful. She will change nothing, and will in fact, set things back and make people unwilling to try it again. The Activision case is a great example - the FTC's arguments are just silly. I think this merger is a bad thing, but the tact the FTC is taking stands no chance of winning.
She will move precisely nothing forward in the world at this rate - it will only get harder - losses make it more likely you keep losing, people scrutinize arguments harder, etc.
The kind of change she wants and Cory wants doesn't happen by throwing abstract policy positions at the wall (in the form of court cases), even if the positions are ones I mostly agree with. It happens by moving your legal position from where it is, in reasonable, logical steps, to where you want it to be, and convincing courts along the way to take those steps with you.
That may suck in a lot of ways - especially when you think you are very right and everything sucks (and you might be!). But bringing people along on the journey is necessary for courts too, the same way it is for any other part of society. The righteousness of your cause or position rarely matters to the speed at which you can do successfully something about it .
[1] These are not employees who love or hate any particular company or industry, and have maintained high scores despite plenty of changes in administrations over the decades.