Source: United States Department of Justice News
Thank you for that kind introduction.
It is a pleasure to be with you this evening.
At the outset, let me congratulate Bill Kovacic and the teams at Concurrences and the GW Competition Law Center on tonight’s celebration. Lawyers are a somewhat distinctive group in that we learn primarily by reading. It is only fitting then that we hold an event like this one to celebrate impactful writing.
I also extend my sincere congratulations to all the honorees tonight. I was thrilled to see many friends and former colleagues among the nominees. And I am especially proud that two former Antitrust Division interns – Ariana Vaisey and Zaakir Tameez – made the list of nominees for best student article. Kudos to the esteemed members of the jury for their work to identify tonight’s winners.
This year’s articles span the most interesting topics of the day. They reflect depth of thought, illuminating what is at stake in the current antitrust enforcement and competition policy landscape. And regardless of whether any of us agrees with a particular article, your writing will help sharpen our thinking and challenge our assumptions. Simply put, we are all made better by reading your work.
That’s what I’d like to focus on today.
I have spent some time thinking about why good writing matters. Here’s what I’ve come to believe.
At its core, good writing helps connect us, as government enforcers, with the People we are charged with serving. And as members of a pluralistic society, good writing allows us to see each other fully. Good writing in law and policy allows us to engage in the type of productive debate that progresses our society. It advances our knowledge and helps us make better-considered judgments. That is critical in a participatory democracy.
In my time with you today, I’d like to elaborate on these reasons that good writing makes us better – both as enforcers and as people.
I. Good Writing Helps Make Antitrust Less Technocratic and More Accessible to the Public
First, good writing makes antitrust more accessible the public.
If we treat antitrust as the province of elites and experts – a set of values too complicated to be engaged and understood by the average person – our work can become misaligned with our Congressional mandate.
I first encountered substantive antitrust law as a first-year law student. The final assignment for my 1L legal writing class was to write an appellate brief about an antitrust dispute. The fact pattern went something like this: A fictitious state college began producing its own electronic textbooks. It offered deep discounts to students who were willing to purchase their textbooks as a bundle. An independent bookstore, which had seen its sales decline, challenged the practice as anticompetitive. In defense, the college asserted that it hadn’t violated the Sherman Act. And, in any event, it said, it enjoyed immunity from antitrust liability as a state institution.
For weeks, I waded in the details of cases like LePage’s and PeaceHealth. I learned about Parker immunity. I discovered the 2007 Antitrust Modernization Commission Report and reviewed it hoping for wisdom. I tried to make heads or tails of price-costs tests, volume discounts, discount attribution, and the like. I submitted my brief and later argued my position before a moot court-style panel of law clerks at the Third Circuit.
After the assignment, my younger self made a judgment: Antitrust might be great for some people. But I was not one of those people. Antitrust seemed overly technical. And sometimes too divorced from reality.
I was wrong on both fronts. As I have now learned through my career, my younger self fundamentally misunderstood what antitrust is about.
Let me explain.
The Sherman and Clayton Acts, properly understood, are about preserving free, open, and competitive markets. Congress gave us flexible tools to stop conspiracies and cartels. To challenge mergers in order to “brake th[e] force” of “concentration in American business … at its outset and before it gathered momentum.[1] To stop the abuse of monopoly power. Congress was so concerned with the trusts that it even declared the inchoate offense of attempted monopolization a violation of the Sherman Act.
Congress understood that the rivalrous interaction of firms yields better prices, higher quality, and more innovation. We know the second-order benefits of that competition can bolster our democratic, political, and social institutions.[2] And so Congress outsourced some of its authority over interstate commerce and enshrined the value of competition in the antitrust laws.
Some of the earliest proponents of an anti-monopoly law included farmers, merchants, and independent pharmacists. They were people who understood the intrusions of corporate power on American life.
Congress gave us our first antitrust law in 1890.
In enforcing it, we remain conscious that the People are the objects of the law’s solicitude.
That was the central thesis behind our merger guidelines RFI. We needed to hear from a wide swath of people. Not just the antitrust lawyers, economists, academics, and policy advocates who are skilled at advocating for their interests before the agencies. But people, including business owners, workers, and consumers, outside the beltway. People whose lived experience has been affected by mergers and acquisitions of different kinds.
We need to hear from people for whom Washington is actually and figuratively far away.
And what has stood out to me is that, today, just like in the 19th century, Americans understand abuses of corporate power. They understand what happens when independent and local pharmacies are acquired by large firms or when large suppliers and middlemen make it so they can no longer afford to compete. They feel the pinch of airline consolidation that increases airfares. They understand how meatpackers can squeeze farmers, growers, and ranchers while charging higher prices to distributors, grocers, and retailers. They endure diminished opportunity when employers make it harder to switch jobs or collude to suppress wages.
And they understand the confluence of harmful mergers, monopolies, business practices, and collusion that allocate an increasingly large share of services, opportunities, and resources to the largest, wealthiest cities while hollowing out the middle of the country.
Throughout our history, journalists have memorialized and humanized life under abusive monopolies. Writing for The Atlantic in 1881, Henry Demarest Lloyd described in stunning detail the gloom of life under the Standard Oil monopoly. He described how it “achieved monopoly” by “conspiracy with the railroads.”[3] “It is the railroads that have bred the millionaires who are now buying newspapers, and getting up corners in wheat, corn, and cotton, and are making railroad consolidations that stretch across the continent,” he observed. “When monopolies succeed, the people fail; when a rich criminal escapes justice, the people are punished; when a legislature is bribed, the people are cheated.”
That’s why good writing remains critical today: To communicate what’s at stake in our enforcement and policy. When we write in technocratic ways, the law becomes too abstract, too divorced from the people who suffer when we do not fully embrace Congress’s mandate. When we write in clear and accessible terms, however, we can make the law accessible to the people we’re charged with protecting.
And it opens up the tent. People – no matter who they are, where they live, or what they believe – feel like they can be a part of a conversation. When we make antitrust more participatory, we live up to the best of our ideals. We contribute to our more perfect union.
For those reasons, at the Antitrust Division, we are striving to make our actions and policies as accessible as possible. That may be easy for government when we’re talking about speed limits, but we have to work a bit harder as antitrust enforcers.
We have to be clear and plainspoken, even though the markets we police are dynamic and complex.
Public accessibility to government action is important for its own right. But, in a democratic government, it’s even more critical.
That brings me to my next point.
II. Good Writing Furthers Democratic Governance and Legitimacy
Second, good writing can help advance rule of law principles.
It furthers democratic governance and legitimacy when we make ourselves and our actions more understandable to the people who live under the market structures and conditions that our enforcement and policy choices produce.
Every day, when I go to work, I walk through the gates of the Robert F. Kennedy Main Justice Building. It is the headquarters of the Justice Department. It is a very special place. The building sits across from the National Archives, where anyone can go see the original Constitution, Bill of Rights, and the Declaration of Independence. It’s a New Deal-era building, adorned with striking frescos and murals depicting law and justice.
Before I reach my office, I see two reminders.
Through the building gates, in the center of our courtyard, there is a sculpture of the scales of justice with an inscription that reads, in Latin: “Prīvilēgium Obligātiō.” It reminds us that with privilege comes obligation.
I then walk into the building and up a winding staircase to the Antitrust Division’s hallways. Just a few doors before I reach mine, I pass our ethics officer. Stuck to the middle of her door is a bumper sticker with a frank message: Public Service is a Public Trust.
I love these reminders.
As Justice Department lawyers, we are the lawyers not for any individual, but for the entire United States. We are always mindful of the privilege of public service and our obligation to uphold and defend the Constitution. The Constitution is our north star that protects the rule of law in our country.
The rule of law refers to the principle that all persons, institutions, and entities are accountable to laws that are publicly promulgated, equally enforced, and independently and fairly adjudicated. The idea dates to the fourth century BC, when Greek philosopher Aristotle wrote that “[i]t is more proper that law should govern than any one of the citizens.”
The rule of law protects people from government overreach. It gives us confidence to enter into enforceable transactions. It establishes a fair and neutral forum to resolve disputes. It protects us from crime.
At the Antitrust Division, we serve the rule of law by making sure that we are fairly and faithfully enforcing the laws as Congress wrote them while ensuring the respectful treatment of all whom we encounter.
Consistent with our rule-of-law tradition, the Division speaks through complaints and indictments. In them, we describe antitrust violations in appropriate detail to educate defendants, courts, and the public writ large about why the government is taking a particular action. We try to make plain to the public not only what a defendant did but why a transaction or conduct violates the law. We cannot hide behind a shield of legalese, double negatives, and inscrutable jargon because it can obscure the way we are exercising the power and obligation entrusted to us.
This is critical.
When the public can understand our actions – how we are exercising the authority that Congress gave us, why what we are doing matters, and how their government is working to protect their economic liberty – it reaffirms their faith in our democratic institution and in the proper functioning and legitimacy of government itself.
III. Good Writing Strengthens Society
Finally, good writing strengthens society.
The way we engage with each other matters. This is especially true in times of intense social, political, and economic polarization. In antitrust, as in life, we have no shortage of difficult issues to work through. And people come to the table with different viewpoints and strong opinions.
Too often, our ideas – and the representation of the world around us – gets reduced to soundbites and 280-character posts. While that can be an effective way to capture fleeting attention in the virtual world, it makes it difficult to fairly portray divergent opinions.
When the world operates this way, it’s not hard to see why polarization flourishes. If an idea can only be as long as a sentence or thirty second video, there’s little room for real dialogue. It invites two choices: opposition or agreement. And, as a result, we see each other as binaries: Red or blue, pro-enforcement or anti-enforcement, and so on.
Worse, it can invite intellectual tribalism and ideological purity tests, like the sorting hats in Harry Potter. These tests, by their nature, do not allow for gradation or complexity. If you’re a Slytherin, you cannot be a Gryffindor.
When the world becomes this two-dimensional, we reject ideas, not because of the merits, but because of the person who said it. Suffice it to say, this approach does not advance productive debate.
I do not pretend to have easy answers to this problem. But, as you might guess, I will share why I think engaging with good writing, even from surprising sources, can help improve our discourse.
Several years ago, when I was a counsel in the Front Office, I spent a lot of time thinking through labor competition enforcement and policy issues. That work led me to read a newer body of scholarship that was focused on monopsony, non-competes, and employer collusion. It also led me to revisit some of the older works of our intellectuals forebearers. From Ibn Khaldun to Abraham Lincoln, there was a richness and depth of thought that I found exhilarating.
But in some cases, I was surprised.
I revisited The Wealth of Nations, for example, expecting to read plenty of criticism about government intervention in markets. But I was surprised by how much of Adam Smith’s writing was concerned with monopolies and the incentives of employers to engage in wage collusion. The father of free-market economics had written beautifully and extensively about his concern for the poor, the dangers of monopolies, and the ability of business to engage in legislative capture.
You might draw two lessons from my experience: First, received wisdom is no substitute for engaging original text. When we do otherwise, we risk dulling out the nuance of interesting ideas. Worse, we can overstate or incorrectly ascribe ideas altogether. Perhaps that is why lawyers focus on original sources of law. While oral traditions have endured throughout human history, ours is a written tradition. No matter what is said about a work, it is no substitute for the work itself.
Second, as the late Alan Krueger observed, revisiting the writing of our intellectual heroes and titans makes clear that they were capable of holding and exploring complex ideas at the same time, even when they are in conflict.
Perhaps, in recognizing this, we can give ourselves the grace to do the same – and in so doing, reject the tribalism and reductive dialogue that invades our discourse.
When we write well, we convey our depth. It invites us to accept the complexity of people and their ideas. It raises us off the screen into something we can understand.
It makes us three dimensional again.
* * *
To everyone being honored tonight: This is what you’ve done. You’ve written terrific work that communicates important ideas and advances our dialogue.
If there’s one thing I’d like you take away from my remarks, it’s this: Good writing matters. Both for its own sake and the ways it can help us advance our democratic ideals and governance in our messy, beautiful, and pluralistic society.
Once again, I congratulate all the honorees.
Thank you.
[1] Brown Shoe Co. v. United States, 370 U.S. 294, 317-18 (1962).
[2] N. Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958).
[3] H.D. Lloyd, The Story of a Great Monopoly, The Atlantic (March 1881), https://www.theatlantic.com/magazine/archive/1881/03/the-story-of-a-great-monopoly/306019/ (last accessed March 27, 2023).