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Chris Sagers

Cleveland State University

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United States v Apple: Competition in America

Abstract

In 2012 the Department of Justice accused Apple and five book publishers of conspiring to fix the prices of electronic books. The evidence overwhelmingly showed an unadorned price-fixing conspiracy that cost consumers hundreds of millions of dollars. Yet before, during, and after trial, millions of Americans sided with the defendants. Pundits on the left and right condemned the government for its decision to sue, decrying Amazon’s market share, railing against a new high-tech economy, and rallying to defend authors and publishers. For many, Amazon was the real villain, and the firm that should have been on trial. But why? One fact went unrecognized and unreckoned with, and on examination it helps explain why American antitrust law has mostly not worked very well: despite our reputation for commitment to free markets and individual enterprise, Americans as a people don't really believe in competition at all. "United States v. Apple: Competition in America examines the misunderstandings and exaggerations that firms have raised throughout antitrust history to justify collusion and monopoly. In all those cases, antitrust itself was put on the defensive. Herein lies the real lesson of the eBooks case. Having competition as a policy means making peace with its sometimes rough consequences. As bruising as markets in their ordinary operation often seem, constraining them to avoid their consequences has almost always meant treating real problems with the wrong medicine, and has been counter-productive and self-defeating. United States v. Apple shows that markets should be left to do what they do well, and the real problems surrounding them should be met with solutions that can actually help.

About

Chris Sagers, the James A. Thomas Distinguished Professor of Law and Faculty Director of the Cleveland-Marshall Solo Practice Incubator, joined the faculty in the fall of 2002. He has taught courses in Antitrust, Banking Regulation, Business Organizations, Law & Economics, Administrative Law, Legislation and the Regulatory State, and a seminar concerning the theory of the firm. He has testified before the U.S. Congress and the Antitrust Modernization Commission. He is author of Apple, Antitrust, and Irony (Harvard Univ. Press 2016) and Antitrust Examples & Explanations, co-author (with Theresa Gabaldon of George Washington University) of a casebook on business organizations from Aspen Publishing, and co-author of Sullivan, Grimes & Sagers, The Law of Antitrust, a leading hornbook. His articles have appeared in the Georgetown Law Journal, UCLA Law Review, and other leading journals. He has been quoted in the New York Times, Wall Street Journal, Cleveland Plain Dealer, The Huffington Post, and National Public Radio, and he is a frequent panelist and lecturer.

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