January 2012

Trustbusters should call off fishing expedition in Microsoft-Yahoo deal

by Gary Howard on August 11, 2009

in Legal, Tech & Telecom

In today’s Seattle Times, CEI Information Policy Analyst Ryan Radia and CEI Policy Fellow Jonathan Hillel talk about the U.S. Senate Antitrust Subcommittee’s threat of “careful scrutiny” over the recent Microsoft-Yahoo deal.  Read the piece here or see below.

MICROSOFT and Yahoo want to join forces in Internet search to better compete against Google. But first, they need the blessing of government antitrust enforcers. Senate Antitrust Subcommittee Chairman Herb Kohl, D-Wis., already has threatened “careful scrutiny” of the deal. But trustbusters should not go fishing for problems in the Internet search market. In the relentlessly fast-moving digital economy, government intervention contorts the market and ultimately harms consumers.

Under their proposed decadelong pact, Yahoo searches will be powered by Microsoft’s Bing search engine, which launched this June. The two search firms will maintain separate Web sites, but Microsoft will administer the technical side of both. Microsoft will also gain access to Yahoo’s vast volume of searches and query data. In exchange, Yahoo will receive 88 percent of ad revenues from searches performed on its own site.

As Steve Lohr of The New York Times noted recently, the scale advantages resulting from the arrangement will be significant. By teaming up with Yahoo, Microsoft will gain a much larger share of Internet searches, helping it attract a bigger slice of the $11 billion search advertising market.

An equally important benefit of the deal is “data scale.” Search engines are forever tweaking their underlying algorithms using complex statistics and machine learning. More searches mean more data can be mined – and, therefore, more accurate results. This, too, can fuel ad sales by making targeted placements more attuned to user preferences.

Both Yahoo CEO Carol Bartz and Microsoft Chief Steve Ballmer have admitted that scale is the driving force behind the deal. To antitrust enforcers, however, “scale” is often a major red flag. This is because the Justice Department assumes that in markets where competitive advantage stems from firms’ size and market share, the consolidation of existing competitors thwarts the entry of newcomers.

Scale may make Microsoft and Yahoo more competitive, but it hardly guarantees them success. Indeed, history tells us that innovation, not scale, is the one true silver bullet in Internet search. Google earned its crown nearly a decade ago by revolutionizing search technology, devising the revolutionary PageRank system for indexing the Web and toppling AltaVista in the process. More recently, Microsoft’s Bing has made inroads by combining a clever cataloging system with alluring design.

In the same way, the firm that ultimately dethrones Google will likely do so by offering superior search technology, not simply more of it.

The Microsoft-Yahoo deal has also raised concerns over “network effects.” This refers to the phenomenon whereby a technology becomes more valuable to its users as the size of its user base grows. Concerns over network effects were at the center of Microsoft’s antitrust woes beginning in the late 1990s.

Yet online search is not a network market. The reason Google attracts so many users is not because it already has lots of them, but because it gives the best search results. Once again, innovation, not scale, is the real trump card in the Internet search market.

Farhad Manjoo of Slate recently observed that search engines including Cuil, Wolfram Alpha, Topsy and Bing all emerged as viable players in Internet search despite Google’s supposed dominance. To be sure, none of these search engines have yet threatened Google. But since Web users can switch search engines with a few clicks of the mouse, sustaining market share over time is impossible without continual innovation.

Antitrust policing lags far behind the rapid-fire evolution of dynamic Internet markets. It is no accident that Web search depends on innovation; rather, this is the very nature of the modern information economy. The Justice Department should stop worrying about scale and keep its hands off the Internet search market.

The Truth About Town Hall Meetings

by Marc Scribner on August 11, 2009

in Culture, Healthcare, Politics as Usual, Regulation, Sanctimony, Zeitgeist

Yesterday, the Obama administration distanced itself from some of the more outrageous comments made by congressional Democrats, including one made by House Speaker Nancy Pelosi (D-Calif.) which labeled some critics of a government takeover of health care as “simply un-American.” Speaker Pelosi was specifically referring to those opponents who have been attending health care congressional town hall meetings, claiming that “disruptive” actions are perverting our democratic system and preventing a real dialogue between Congress and constituents.

CEI Fellow in Regulatory Studies Ryan Young made a valid point that the average town hall attendee is likely politically invested anyway:

Who goes to town hall meetings for fun? Of course the people crashing the events have an agenda. That’s the point!

Congress is certainly aware that these events are largely attended by individuals with developed political positions–meaning these aren’t the fence-sitting, largely-apathetic independents that politicians love to talk about courting–so why are some so concerned about those with differing points of view? The reason is simple: so-called “town hall meetings” are designed as media opportunities, where political machines can manufacture soundbites featuring star-struck constituents praising all the good work their elected officials are doing in Washington–for the purpose of being broadcast continuously during campaign season. When the meetings turn out to be a little different than the scripted love-fests envisioned by Capitol Hill staffers, things can turn ugly.

“Join Your Fellow Pervs for Some Explicit, Twisted Fun” Courtesy of Obama’s Stimulus Package

by Hans Bader on August 11, 2009 · 2 comments

in Economy, Healthcare, Legal, Personal Liberty, Politics as Usual, Sanctimony, Stimulus to Nowhere

“Join your fellow pervs for some explicit, twisted fun,” urged a recipient of more than $25,000 from Obama’s $800 billion stimulus package, which received the money through the National Endowment for the Arts. The stimulus is also being spent on “nude simulated-sex dances, Saturday night ‘pervert’ revues,” and “pornographic horror films.” While providing taxpayer funds for “numerous” sexually perverse projects, and lots of money for welfare, the stimulus package has done little for America’s roads and bridges.

Why? Because feminist leaders complained that rebuilding roads and bridges would employ working-class men, who have borne the brunt of the recession, rather than women or the “sexually diverse.” Unemployment is very high among transportation and construction workers, who are overwhelmingly male. The vast majority of people who have lost their jobs in the current recession are male — 82%. But the stimulus package is not aimed at helping them. In response to demands from feminist leaders, the Obama Administration rewrote the stimulus package to largely exclude them, as Christina Hoff Sommers has chronicled at length.

The Obama Administration purged the stimulus package of most of the investments in roads and bridges originally suggested by economists, and filled it instead with welfare and social spending, out of political correctness, after feminist leaders complained that building and repairing roads and bridges would put unemployed blue-collar men to work, rather than women.

As Christina Hoff Sommers points out, “Men are bearing the brunt of the current economic crisis because they predominate in manufacturing and construction, the hardest-hit sectors, which have lost more than 3 million jobs since December 2007. Women, by contrast, are a majority in recession-resistant fields such as education and health care, which gained 588,000 jobs during the same period.”

But when the Administration floated the concept of “an ambitious . . . stimulus program to modernize roads, bridges, schools, electrical grids, public transportation, and dams” as a way of “reinvigorating the hardest-hit sectors of the economy,” “Women’s groups were appalled,” asking “Where are the New Jobs for Women?” and denouncing what they called “The Macho Stimulus Plan.”

The Obama Administration quickly knuckled under to this pressure, replacing its recovery package with an $800 billion stimulus package that instead “skews job creation somewhat towards women” by spending money instead on social services like welfare that are administered mostly by female employees.

“A recent Associated Press story reports: ‘Stimulus Funds Go to Social Programs Over ‘Shovel-ready’ Projects.’ A team of six AP reporters who have been tracking the funds find that the $300 billion sent to the states is being used mainly for health care, education, unemployment benefits, food stamps, and other social services.” Or, as another AP report put it, “Stimulus Aid Favors Welfare, Not Work, Programs.” Less than 6 percent of it ended up going to transportation.

The stimulus package also repealed welfare reform, as Slate’s Mickey Kaus and the Heritage Foundation have noted. Obama ran campaign ads claiming to support welfare reform, even though he had actually fought against meaningful welfare reform as an Illinois legislator. The stimulus package largely repeals the welfare-reform law passed by Congress in 1996.

Obama claimed the stimulus package was needed to prevent the economy from suffering from “irreversible decline,” but the Congressional Budget Office admitted that the stimulus package would shrink the economy “in the long run.” The stimulus package has since destroyed thousands of jobs in America’s export sector, and subsidized countless examples of government waste and corruption.

Recently, Obama fired an inspector general, Gerald Walpin, who uncovered millions of dollars of waste and fraud in the AmeriCorps program, including by a prominent Obama supporter, endangering the Obama supporter’s ability to administer federal stimulus spending in Sacramento.

The stimulus package also imposes on states racial set-aside requirements and prevailing-wage requirements, which increase the cost to taxpayers of government contracts. The prevailing-wage requirements will inflate the cost of state construction and transportation projects by at least $17 billion. Racial set-asides also are very costly to taxpayers.

Racial quotas, set-asides, and affirmative action are also mandated by Obama’s health-care plan, drawing criticism from the U.S. Commission on Civil Rights, reports today’s Washington Times. Earlier, the Commission criticized the Obama Administration for turning a blind eye to racist voter intimidation by black panthers, including an Obama poll watcher and Democratic official who used a nightstick and racial epithets to drive white voters away from a Philadelphia polling place.

LibertyWeek 55: The Health Care Mob Is Coming!

by Richard Morrison on August 11, 2009

in CEI Projects, Podcast, Zeitgeist

Your host Richard Morrison welcomes back returning guest co-host Jeremy Lott and distinguished special guest David Mark of the Politico for Episode 55 of the LibertyWeek podcast. We start with reports of unrest over health care in the provinces, the U.S. Postal Service’s death spiral and the globe trotting ways of members of Congress. We continue with some sadly familiar antitrust murmurs regarding Apple and Google, a classic union corruption scandal out of New York City and some inspiring and heroic Paralympic News.

Mr. President, Time to call out the National Guard!

by Myron Ebell on August 11, 2009 · 2 comments

in Culture, Sanctimony, Zeitgeist

Living and working well inside the Beltway as I do,  I’m often a little out of touch with the hurly-burly of American life.  So I was surprised to learn from an e-mail yesterday from Justin Ruben of MoveOn.org that right-wing mobs are rampaging in our streets and shouting at Members of Congress.  I imagine that most Americans are as shocked about this as I am.  Nothing like it ever happened during President Bush’s invasion and occupation of Iraq or the Republican Congress’s continual attempts to starve orphans and widows.  The left always made their objections politely and using good grammar.  Code Pink were a charming group of people.  I don’t even remember an inappropriate slogan on a tee-shirt or a bumper sticker.

MoveOn seem to think that they can launch an adequate response to the mob’s rampages by raising a mere $210,000.  That would buy a lot of pitchforks, but I’ve heard that farm supply stores across the country are sold out.  Thus I don’t think that such a paltry sum is going to do it.  No, I think it’s not too soon for the President to call out the National Guard to restore order.  He should impose a 7 PM curfew on small towns and rural areas and on people over sixty in cities.   A month or so of martial law, and the Congress and the Obama Administration can return refreshed to the critical tasks of  enacting energy-rationing legislation, enacting health-care-rationing legislation, and doubling the national debt in five or six years.  Then we shall see what can be achieved when the people are made to quiet down and get out of the way.

They Can’t Even Keep Drugs Out of Prison?

by Ryan Young on August 11, 2009

in International, Legal, Personal Liberty, Regulation

The New York Times notes that Mexico’s jails are “places where drug traffickers find a new base of operations for their criminal empires, recruit underlings, and bribe their way out for the right price.”

Amazing. Armed guards. All the bad guys behind bars. Under constant supervision. And Mexico still can’t keep drugs and drug dealing out of its prisons. The U.S. suffers from the same problem, by the way.

If authorities can’t keep drugs out of prisons, how can they expect to keep them out the hands of the general population? Maybe, just possibly, prohibition is not an effective way of stopping drug abuse.

Child Killer Escapes Punishment: “Mom of starved Md. child to be released after plea”

by Hans Bader on August 11, 2009 · 8 comments

in Culture, Legal, Personal Liberty, Politics as Usual, Sanctimony

A Baltimore mother who deliberately starved her one-year-old son to death will soon be released after pleading guilty, reports the Associated Press in the story “Mom of starved Md. child to be released after plea.”

Ria Ramkissoon deprived little Javon Thompson of all water and food, forcing him to suffer a lingering and agonizing death, after he failed to say grace as demanded by the teachings of her cult – never mind that a one-year old might not be able to utter such complicated language. Lawyers have rationalized her crime as the acts of a confused and misguided woman.

Mothers who kill their children often serve little jail time. Gender stereotypes lead people to believe that any woman who kills her kid must have done so as a result of duress or insanity. Andrea Yates ultimately escaped punishment after methodically drowning her five children one by one in a bathtub. A Prince William County woman guilty of stabbing her five daughters received less than three years in jail (after her lawyer ridiculously claimed the children should not be deprived of their mother!).

A woman who used poison to paralyze her daughter, enabling her husband to then kick her conscious-but-immobilized daughter to death, escaped penalty by pleading “battered woman syndrome.” (While battered women suffer terribly, the so-called “battered woman syndrome” theory has been criticized by leading scholars as being contrary to empirical evidence, and resting on baseless gender stereotypes. See Faigman & Wright, The Battered Woman Syndrome in the Age of Science (1997) 39 Ariz. L.Rev. 67, 68-69)).

Battered woman syndrome has become an excuse to kill not only children, but also innocent non-relatives. A California woman got her lover to kill an innocent man by falsely telling him that the man was her paramour. She then had her murder conviction overturned by the California Court of Appeal. How? She claimed that “battered women’s syndrome” made her do it. (The California Supreme Court depublished the Court of Appeal’s decision in In re Nourn, 52 Cal.Rptr.3d 31 (2006), depriving it of binding effect in future cases, but it refused to disturb its ruling overturning the conviction).

Gender bias is common in domestic violence cases, to the detriment of male victims. According to the Bureau of Justice Statistics’ study of large urban counties, wives who kill their husbands without provocation get only seven years in prison, on average, compared to a more reasonable 17 years in prison for husbands who kill their wives without provocation.

Domestic violence is only taken seriously by many people when it fits the crude stereotype of a man beating a woman. But it comes in many other forms (it occurs at similar rates in same-sex relationships, for example), although many self-styled “domestic violence” advocates would deny it, falsely claiming that all domestic violence is rooted in “patriarchy” or “violence against women.” According to the Bureau of Justice Statistics, about 800,000 men and 1.5 million women are victims of domestic violence every year.

The lawyers in the Javon Thompson seem to lack any moral compass or sense of outrage about what Ria Ramkissoon did, boasting that thanks to prosecutors, she will now receive a cushy slot at a taxpayer-funded counseling facility in bucolic surroundings. “It’s not a correctional facility. It’s a place for her to get re-acclimated. She’ll be part of a community and have a job and responsibilities,” said Steven D. Silverman, Ramkissoon’s attorney. “She’s very excited about the opportunity to do something positive.” One can only hope that she won’t murder another child.

For a glaring example of gender bias in the courts (and the media), you need look no further than The Washington Post story by Tamara Jones, in which she commiserates with convicted felon Teressa Turner-Schaefer, who spent a mere 11 months in jail for killing her husband after an argument.

Now Turner-Schaefer gets to collect $400,000 in life insurance for killing her husband. In a plea bargain, she pleaded guilty to the crime of involuntary manslaughter, which, amazingly enough, doesn’t bar you from collecting life insurance taken out on the person you killed.

It’s not surprising that the prosecutors let her plead guilty to involuntary manslaughter, even if they thought she deliberately murdered her husband. Prosecutions of wives for killing their husbands are among the most difficult for prosecutors to bring, since judges and juries invariably assume that the victim must have done something to deserve it, even if the victim was blameless.

Even when a prosecutor succeeds in obtaining a conviction, penalties are often slight. (I wrote earlier in the Post about Mary Winkler, the Tennessee woman who served only two months in jail after her conviction for killing her preacher husband).

And getting a conviction is quite difficult, since even the killing of a small, physically harmless man is often defended on the ground that his wife was suffering from “battered woman syndrome.”

“Battered woman syndrome” is a concept popularized by Lenore Walker, who was later exposed by the Post‘s Ken Ringle for falsely claiming that watching the Super Bowl results in men beating their wives more. Walker defines “battered woman syndrome” so broadly that mere verbal abuse or quarreling qualifies. Despite being exposed for the Super Bowl hoax, Walker has been cited hundreds of times in judicial opinions.

It is easy for a female defendant to find a “rent-a-shrink” willing to testify that the husband she killed was a batterer — even if she in fact dominated and abused him, not vice versa. Such testimony for hire is admissible, while the testimony of the slain man’s family that he was the victim is not.

The Maryland Court of Special Appeals, in an opinion by Judge Diana Motz (who was later appointed to the federal appeals court), held in Banks v. State, 608 A.2d 1249 (1992), that a man’s family were not allowed to testify that he was in fear for his life of the wife who later killed him, and expressed such fear to them repeatedly. The court said his out-of-court statements were inadmissible hearsay. Yet an “expert” who never met the man was permitted to testify about battered woman syndrome in that very same case, depicting him a negative light.

By contrast, similarly relevant out-of-court statements about female victims are not so rigidly excluded. The Ninth Circuit Court of Appeals, for example, permitted diary entries about abuse of a female victim to be admitted at her husband’s murder trial in Parle v. Runnels, 387 F.3d 1030 (2004).

The courts can be quite indulgent even when it is clear that a woman has deliberately attempted to kill her husband. In another case, U.S. v. Working, 224 F.3d 1093 (2001), the Ninth Circuit held that federal trial judge Jack Tanner (whom the Ninth Circuit later admitted was gender-biased against male victims) had the power to reduce a woman’s sentence for deliberately maiming, and attempting to kill, her ex-husband (Tanner sentenced her to just one day in jail) because he had supposedly disturbed her emotionally by seeking custody of their kids. It is hard to imagine a court reducing a man’s sentence for maiming his ex-wife on the grounds that she had the temerity to seek custody of their children. Such a man would rightly receive a long prison sentence, and no sympathy from the press.

All Community Organizing Is Astroturfing – And That’s Fine!

by Ryan Young on August 10, 2009

in Deregulate to Stimulate, Economy, Healthcare, Personal Liberty, Regulation

Democratic members of Congress have held numerous town hall meetings recently to promote the president’s health care plan. They have faced unbridled hostility, to the surprise of many.

The response: attack the people making the hostile arguments, not the arguments themselves.

True, the whole phenomenon does seem vaguely dodgy. Who goes to town hall meetings for fun? Of course the people crashing the events have an agenda. That’s the point!

The weird part is that people use different words to describe the same political tactic, depending on which team’s partisans are behind the disruptions. If one team does it, it’s called “community organizing.” If the other team does it, it’s called “astroturfing.”

Again, it matters less which side is doing what, than whether the arguments they’re making are right or wrong. That is what’s important. The government is currently in charge of a bit more than half of all health care spending. Astroturfers say this is too much; community organizers say this is too little. The debate should hinge on which of the two has the better arguments.

The fact that members of Congress extolling the president’s plan are attacking astroturfers while leaving their arguments alone seems to say that the Congressmen believe their own arguments to be weak. Why else the need to go personal?

Why Intel’s Billion Dollar Fine Violates Human Rights Convention

by Hans Bader on August 10, 2009

in Intellectual Property, International, Legal, Odds & Ends, Tech & Telecom

Intel alleges that its due process rights were violated by a massive $1.45 billion fine recently imposed as a result of a one-sided antitrust investigation that excluded evidence of its innocence. It says that a biased investigation by the European Commission violated the European Convention on Human Rights. Despite its title, the Convention protects not just humans but also “non-governmental organisations” like corporations, as its text and many court rulings confirm.

I think Intel has a strong case. But some commentators have greeted Intel’s argument with scorn. They say it can’t rely on human rights because it is a corporation and not a human being. They also say that the fine can’t be challenged because it is civil, not criminal — even though the Convention protects due process in both civil and criminal proceedings, and treats massive penalties like the one imposed on Intel as criminal, not civil, because of their punitive nature.

In May, the European Commission fined Intel a record-setting $1.45 billion dollars for violating EU antitrust law for allegedly using rebates to potentially penalize clients who purchased too many computer chips from a smaller rival. “Intel is the world’s biggest computer chip maker and controls roughly 80% of the computer chip market.”

Recently, however, the Commission’s proceedings against Intel were criticized for unfairness by the EU’s own ombudsman: “The European Union’s ombudsman has issued a rare rebuke of the bloc’s antitrust regulator, saying it failed to record ‘potentially exculpatory’ evidence from a witness in its investigation of chip giant Intel Corp.”

Despite this unfairness, Intel has been criticized for even raising a due process claim, under the theory that companies don’t have “human rights.” A writer in Forbes Magazine claimed that “the chip giant is grasping for straws with its ‘human rights’ appeal against Europe’s $1.5B fine,” since the “idea of a company appealing to recognize its ‘human rights’ sounds a little odd.” Intel’s argument drew a hail of scorn among commenters in response to a blog post at Ars Technica, including the following reactions: “Please destroy corporations who claim their human rights were violated,” “I had never laughed that hard . . . .before,” and “Any corporation that claims personhood for the purpose of asserting human rights opens a very scary Pandora’s Box.”

But the text of the European Convention on Human Rights is clear that it does not apply just to humans, stating in Article 34 that “any person, non-governmental organisation or group of individuals claiming to be the victim of a violation” may seek redress. For that reason, court rulings have routinely applied the due-process protections of Article 6 of the Convention to corporations. See Michael Addo, Human Rights Standards and the Responsibility of Transnational Corporations (1999) at pp. 194-95 (discussing four such cases, including (1) Dombo Beheer v. Netherlands (1993), (2) Editions Periscope v. France (1992), (3) Union Alimentaria Sanders SA v. Spain (1989), and (4) Societe Stenuit v. France (1992)).

It is odd to see the media disparage the idea of a company having rights, given the fact that media companies constantly invoke the First Amendment and other constitutional rights, like the right to a public trial. The most important First Amendment cases in the past half century have been brought by media companies, such as New York Times v. Sullivan (1964), which overturned a damage award against a media company for libel (and in the process radically cut back the reach of American defamation law), and New York Times Co. v. United States (1971), which ruled in favor of two media companies seeking to publish the Pentagon Papers. Most constitutional rights have been held to apply to corporations (and corporations in general, not just media corporations).

Denying a corporation like Intel the ability to raise human-rights challenges would harm human beings: its shareholders, whose quarterly earnings were wiped out by the massive fine imposed on it by the European Commission, leaving them with a $398 million loss. Allowing due process violations to go unremedied is particularly dangerous in antitrust cases, since antitrust law is often vague and unpredictable and subject to differing interpretations.

And as lawyer Kimberly Curtis notes, Intel is not alone in protesting the EU’s handling of antitrust cases. “Intel and a growing number of other companies argue that the EU method of investigating antitrust violations is contrary to European human rights law since it is a political appointee who oversees the investigation and decides guilt,” in an administrative proceeding in which an appointee acts as prosecutor, judge, and jury. This “calls into question the EU’s practice of having a political appointee — the current antitrust commissioner is Neelie Kroes of the Netherlands — who supervises investigations, and then decides whether the company is guilty and what the punishment should be.”

Moreover, the exclusion of exculpatory evidence in the Intel case was strikingly similar to a human-rights violation found in a landmark case decided by the European Court of Human Rights, in Dombo Beheer B.V. v. Netherlands (1993) 18 EHRR 213. In that case, the court found that the legal system of the Netherlands had violated the due-process rights of a corporation under Article 6 of the European Convention on Human Rights through a one-sided proceeding that excluded one side’s evidence, while permitting the other’s. It also made clear that the right to a fair trial applies not just in criminal cases, but also in civil litigation: “The Court agrees” that in “litigation involving opposing private interests . . . each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent.”

Huge administrative fines such as Intel’s are subject to particularly exacting scrutiny under the Convention both because of their size and punitiveness, which makes them “criminal” in nature, and the fact that they were imposed in an administrative proceeding that combined “investigative and judicial functions.” That’s the lesson from the European Court of Human Rights’ June 11 decision in Dubus S.A. v. France, which found a violation of a corporation’s rights despite a much smaller penalty and seemingly less egregious facts, where an administrative agency had the power to award potentially large sanctions using procedures similar to what the European Commission uses in antitrust cases.

The court found that the “potentially” “high amounts” of the penalties the agency could impose made its proceedings criminal in nature, and that its “combination of investigative and judicial functions” — a feature shared with European Commission antitrust proceedings — subjected its proceedings to heightened human-rights scrutiny. The court ruled that the French Banking Commission violated an investment company’s rights under Article 6 of the human-rights convention by subjecting it to disciplinary proceedings that lacked “independence and impartiality”:

“The Court of Human Rights found that there was no clear distinction between the functions of prosecution, investigation and adjudication in the exercise of the judicial power vested in the French Banking Commission. While the combination of investigative and judicial functions was not, in itself, incompatible with the need for impartiality, this was subject to their being no ‘prejudgment’ on the part of the Banking Commission. The Court stated that there was a need for strict controls, to avoid giving the impression that guilt had been established from the very start of the disciplinary proceedings. The Court of Human Rights also found that Dubus could reasonably believe that it was prosecuted and tried by the same people, and consequently could entertain doubts about the impartiality of the decision of the Banking Commission, which, in its various capacities, had brought disciplinary proceedings against it, notified it of the offences and imposed the penalty. Interestingly, the Court of Human Rights also held . . . that the penalties in the form of fines were penal in character given the high amounts that could, potentially, be imposed.”

As the EU Law Blog notes, this ruling is “significant” for antitrust cases like Intel’s “because the procedure used by the European Commission in antitrust cases is rather similar (but not identical) to the one applied by the French Banking Commission.

Similarly, Kimberly Curtis notes, “the massive size of recent fines” in EU antitrust cases

“suggests that the fines are ‘deterrent and punitive’ and therefore implies that they are criminal in nature. Cases from the European Court of Human Rights in Strasbourg detail what constitutes a criminal case, and one factor is the severity of the punishment. . . billion dollar fines are quite severe. But criminal cases are overseen by an impartial tribunal and defendants are allowed to present a defense, two things guaranteed under European human rights law through the European Convention on Human Rights and two things that the current EU antitrust system lacks.”

It may well be that European courts will be reluctant to overturn what the European Commission has done to Intel, given that a ruling in its favor might call into question the Commission’s handling of other high-profile antitrust cases that have likewise led to large fines. Forbes reports that “in an interim hearing on this case, the president of the Court of First Instance” refused to grant Intel the relief it sought.

But since that hearing, the EU Ombudsman has rebuked the Commission for its unfair treatment of Intel. Indeed, Intel seems to have been treated worse than other litigants whose rights under the Convention were found to have been violated. In light of the strong evidence that Intel’s rights were violated, the European courts may have no principled alternative other than to rule in favor of Intel.

Deceptive Obama Health-Care Plan Worsens the Status Quo, Explodes Costs, Say Washington Post Columnists

by Hans Bader on August 10, 2009 · 2 comments

in Healthcare, Legal, Personal Liberty, Politics as Usual

The Washington Post endorsed Obama — indeed, it hasn’t endorsed a Republican for president since 1952 — but a lot of Washington Post columnists are not enthusiastic about his health-care plan, which is costly, obsolete, deceptive, and harmful.

Obama’s plan would just aggravate the status quo and increase skyrocketing health-care costs, says veteran editorialist Robert J. Samuelson: “One of the bewildering ironies of the health-care debate is that President Obama claims to be attacking the status quo when he’s actually embracing it. . .While denouncing skyrocketing health spending, he would increase it.”

Earlier, Samuelson noted that various aspects of Obama’s health-care plan were “naive, hypocritical” and “simply dishonest.”

Elderly people would be subjected to worrisome undue influence regarding end-of-life decisions, says Charles Lane, a liberal editorialist.

Obama’s plan ignores basic, obvious reforms of the health-care system needed to stem skyrocketing costs and provide health-care security, says Charles Krauthammer — such as a more efficient, less litigious way to decide medical malpractice cases, which wealthy, liberal trial lawyers oppose. But instead of reform, Obama is proposing a massive bureaucracy, “with 1,000 pages of additional curlicued complexity — employer mandates, individual mandates, insurance company mandates, allocation formulas, political payoffs and myriad other conjured regulations and interventions,” that will increase health-care costs rather than cut them as Obama claims. In short, Obama is proposing “a Rube Goldberg system that simply multiplies the current inefficiencies and arbitrariness, thus producing staggering deficits with less choice and lower-quality care.”

In the New York Times, economist Tyler Cowan calls Obama’s plan “voodoo economics.”

Although the federal deficit has exploded, due to massive new government spending, the Obama Administration wants to pile on even more federal spending, including a health-care “reform” proposal predicted to cost at least $1,000,000,000,000 ($1 trillion). In reality, Obamacare will likely cost far more than predicted, the way past health-care expansions always have.

One of Obama’s own advisers says the Obama Administration’s health-care plan will harm people with insurance while raising their taxes. CNN says Obamacare will take away 5 important freedoms. It will also destroy many affordable health-care plans while breaking Obama’s campaign promises.

ObamaCare also contains politically-correct affirmative action mandates and subsidies for left-wing community organizers, and preferences for illegal aliens, who are exempt from its taxes and penalties, but could access its benefits due to lack of meaningful eligibility verification safeguards.

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