I used to conduct research experiments on farm plots. Most ag researchers probably plant seed modified to resist a pesticide (the pesticide) to keep plots weed-free. I sometimes asked the guys helping to spray our plots what they thought about the company (the company) that owns the intellectual property (IP); manufactures; and sells the chemical and seed. The question switched off their usual jokiness, and they got really uneasy and quiet, shrugging and saying its not great. If you read about the company, you can understand why the got really silent. The company has infamously sued farmers for stealing IP-protected seed, aka: neighbor’s pollen (protected) blows onto farmers’ seed; or farmer saves the seed for next season. Besides this, the company also funds many researchers; university and farm conferences; and kids’ farm organizations. When a company possesses so much power, they can make people do what they want, even if they don’t like it: make them plant the company’s seed, spray the company’s pesticide, submit to all kinds of data collection; conduct and publish their research, provide academic and legal cover, lobby governments to grant them immunity from lawsuits from people sickened by their products.¹

These days, I look around and see this type of power in every industry that puts the boot on peoples’ necks. The big 4 meatpacking companies make farmers go deep into debt to construct production facilities for the company.² And because they now hold farmers’ keys out of debt they can cut payment;³ increase prices to buyers; or misrepresent the country of origin of meat.⁴ The biggest grocery retailer forces suppliers to lower prices and then increase prices to competitor retailers and their customers. The big 3 memory manufacturers and graphics card manufacturer control the parts for modern computing; and cut supply and raise prices to researchers and consumers.⁵ The big insurance companies own the company approving and denying claims (and often, the hospital, pharmacy, and pharmacy benefit manager) so abuse their conflict of interest to deny your claim.⁶ On the worker side, these companies often employ the most people in town, and so, reduce pay and benefits without fear of discipline; or bust unions.⁷

Across the economy, from airlines to internet service to hospitals to gambling to agriculture, a handful of individuals exercise outsize power over peoples’ lives.⁸ And people suffer the consequences: whether from breathing or drinking more polluted air or water, to spending more time on automated call service to chase down answers to denied claims, to paying more, to toiling more for lower pay, to losing freedom and control over their lives.

I’d agree strongly with many others who advocate for and have enforced the laws preventing crimes that gives rise to such power. Protecting against unfair, deceptive, or unjustly discriminatory acts, forces companies to compete on the merits and honestly, instead of by cheating to become dominant. And the Constitution and Congress wrote laws that allow citizens and agencies to enforce these laws.

Agencies, for example, can identify and ban practices, like junk fees and noncompetes, that fall into these categories through rulemaking and enforcement authorities^{9 10}. Congress, private plaintiffs, and agencies can utilize breakups to separate companies that own an adjacent business and can exploit a conflict of interest, like the seed company that owns the intellectual property and seed dealerships; or the insurance company that owns the company that denies or approves treatment. Faithfully enforcing existing laws, that prohibit acts that may lessen competition or may substantially create a monopoly, should heavily discourage executives from proposing an illegal merger in the boardroom; or directing the company to engage in forms of price discrimination or exclusive dealing.¹⁰ Legislatures can enact public utility obligations for some companies, as they did with railroads, to serve all customers equally and reasonably, including by offering fair use licensing of intellectual property. Government ownership, like a military commissary or veterans administration or postal service, can ensure a basic level of service for all people; and act as a spur to force companies to compete harder on the merits.

Above, I have outlined some of the tools to protect fair competition on the merits. I should say, by protect fair competition on the merits, I mean protecting a fair mode of competition. Fair competition modes differs from unfair modes. Unfair modes include burning down competitors’ facilities or bribing competitors. As courts have affirmed, fair and meritorious forms of competition include those like developing better products or offering better benefits to attract workers and customers.¹¹ What purpose though animates robust enforcement of the laws protecting free and fair markets? In the next few posts, I’d like to descibe how the of anti-monopoly focuses around dispersing power away from centralized power; to people broadly, so that people can live and work in freedom and dignity.

Sobotka: I’m done with you. I’ve got a union to run!

Vondas doesn’t say anything. The two look across the harbor.

Vondas: They used to make steel there no?

The two watch the plant’s smokestacks still puffing smoke.

Vondas (smiling slightly): Smoke from the stacks. But inside…

Vondas looks at Sobotka, shrugs, and walks away, as Sobotka stares across the grey harbor.

In The Wire Season 2, dockworkers union president Frank Sobotka fights to preserve business for the dwindling number of workers he represents. To fill the gap in union dues, he makes a deal with The Greeks to allow them illegal transit of material through the Port of Baltimore.

But, one shipment goes horribly wrong, and Sobotka, worrying about the consequences of increased police scrutiny of the union, angrily confronts Vondas to terminate the arrangement. Vondas, reading Sobotka perfectly, compares the union’s decline to the decline in the Baltimore steel industry. He smiles knowingly at Sobotka: You see, the decline of unions and manufacturing pass by inevitably. You can talk tough about the union, but you’re really blowing smoke. You need us now to survive.

Hereabouts, I often hear opinions similar to this message:

• Farmers and local businesses are closing because consumers demand cheap food and products!
• We can never enjoy universal healthcare because a few people will greedily schedule appointments and drain the money from the insurance pool!
• We can never produce food or necessities of life because other countries will outcompete us!¹

The common thread to these opinions revolves around the idea that our circumstances stem from the individual choices of regular people, which I find questionable and unhelpful. For example, a person lamenting the loss of independent local business contributes to that loss if they shop at dominant retailers or e-retailers. But really, what sort of evidence can support this idea that a single regular individual or even a group (boycotting) can materially change the prospects of a local business?² And what do we gain by thinking of problems as arising from an irredeemable human condition? Doesn’t thinking like this cause us to arrive at the belief that fundamentally nothing can stop the human march toward self-ruination? If that’s the case, why should people even attempt self-government?

I instead support the view (reality!) that our circumstances originate from law. Laws written by elected representatives and enforced by institutions, courts, and private citizens, still flow from people making decisions that affect others. Laws (or lack of enforcement of laws) determine how a person works, whether with dignity and free and exercising creative entrepreneurial spirit or toil under the thumb of unchecked bosses.³

Under the view that all markets stem from law, “private” commerce does not exist. All commerce bears a public character in their effect on peoples lives.⁴ In the U.S., lawmakers wrote laws borrowing this principle from English common law; and applied these laws to intermediary businesses essential to the flow of commerce⁵. Intermediaries carrying this public character included, for example, inns, bakers, ice manufacturers, grain elevators, meatpacking plants, and transporters. As people developed new forms of commerce, Congress acted to require specific duties for these market-mediating platforms to serve all comers in ways free of deception, unfairness, and undue preferences, among other guardrails.⁶

Under this view, our circumstances flow from laws and their application. Why are farmers and local businesses closing down? Most likely the super retailer the next town over is breaking the law by coercing suppliers to lower prices which forces them to raise prices to competitors like the local store. Why can Americans never enjoy universal affordable healthcare? Most likely the dominant insurance company has illegally acquired the clinic, the pharmacy benefit manager, the pharmacy, and the company approving and denying claims; and can charge higher prices and deprive competitors dependent on its businesses. Why can the U.S. not produce basic necessities, like food, sterile saline bags, pharmaceutical ingredients, Bibles? Most likely the dominant companies in these industries compete by hiring lower paid workers in or from other countries; breaking unions; lobbying for favorable laws; and so, drive honest competitors out of business.

All this to say, in response to the common opinions about inevitability: we absolutely can change course because we all live under and participate in a nation governed by rule of law!