Sunday, October 20, 2002


At the Mises Institute 20th Anniversary conference this past weekend, Thomas DiLorenzo discussed the different approaches classical liberals hold to antitrust legislation. Author of numerous works on the Sherman Antitrust Act, DiLorenzo's "kudzu antitrust theory" stands in sharp opposition to the antitrust arguments given by the Chicago school, which DiLorenzo summarizes as "you can keep antitrust as long as you have smart people running the country" (an approach also taken by the American Enterprise Institute in Washington DC). DiLorenzo's distaste for antitrust legislation as a market cure for monopoly is apparent in his position on the Microsoft case.

DiLorenzo argues that antitrust legislation has "always been a protectionist racket", as the businesses targeted at the time were very successful. Rather than compete on the market, businesses discover that it is in their interest to compete for government favors, or to wage that ethically-ambiguous war of monopoly-slandering. Since special interest groups use antitrust legislation as a tool to accomplish either similar or distantly-related goals, DiLorenzo holds that you cannot reform such legislation. While he agrees with the Chicago school that the Sherman Antitrust Act was horrible, he disagrees with them about the extent to which carefully crafted antitrust legislation might avoid the pitfalls of Sherman.

However, in saying this, DiLorenzo still does not explain the different methodological approaches containing the divisions within classical liberal thought on antitrust legislation. To his credit, he notes that Misean methodological individualism provides the basis for public choice theory in economics, as the Misean focus on incentives also influenced the UCLA-Washington property rights school approach.

"No oppression is so heavy or lasting as that which is inflicted by the perversion and exorbitance of legal authority." Joseph Addison

"The greatest dangers to liberty lurk in insidious encroachment by men of zeal -- well-meaning but without understanding." Louis D. Brandeis


The legal community fails to demonstrate the requisite concern for the current Justice Department's use of the 1996 Antiterrorism and Effective Death Penalty Act which, among other things, makes terrorism a crime punishable by death. Initially passed by the Clinton administration as a response to the Oklahoma bombing, the "reform" in habeus corpus provisions is dramatic. Both capital and non-capital cases are affected by provisions that create one-year deadlines for filing habeas petitions, limit successive petitions, and generally restrict the review of state prisoner petitions if the claim was adjudicated on the merits in the state courts. A "certificate of appealability" also is required before a habeas petition by a state or federal prisoner can be appealed to a federal court of appeals.

Other provisions include the creation of an Alien Terrorist Removal Court composed of five sitting U.S. district judges designated by the Chief Justice; an expanded definition of an aggravated felony under which aliens may be deported, and a streamlined deportation process for criminal aliens after they serve their sentences; the creation of a five-member Commission on the Advancement of Federal Law Enforcement to study criminal law enforcement, the chair of which will be appointed by the Chief Justice; the authorization of appropriations for the Judiciary of $41 million from the Crime Trust Fund from fiscal year 1997 to FY 2000 to help meet the increased demands for judicial branch activities resulting from enactment of the bill; a set compensation for court-appointed attorneys in capital cases at a rate of not more than $125 per hour for in-court and out-of-court time, in addition to an authorization to the the Judicial Conference to increase the rate of compensation in the future under a "CPI escalator" mechanism; the capping of fees and expenses paid for investigative and expert services in capital cases at $7,500, but providing for a waiver mechanism whereby such expenses can exceed that cap if the excess payment is certified by the court as necessary to provide fair compensation for services of an unusual character or duration and if the amount of the excess payment is approved by the chief judge of the circuit.

In 2001, the Supreme Court rejected an appeal that would remove two groups from this Act, giving reason to believe that the constitutionality of this Act is not in question. The federal appelate courts have been a little more forthcoming in their rulings on cases involving the Antiterrorism Act. A unanimous panel of the 2nd U.S. Circuit Court of Appeals ruled that habeas petitions dismissed pursuant to the U.S. Supreme Court's ruling in Stone v. Powell, 428 U.S. 465 (1976), constitute a denial on the merits. Tom Perrotta comments that, although "the act does not explicitly define a "second" or "successive" petition, the 2nd Circuit has ruled that a petition will be classified as successive if a prior petition has been decided on the merits (Corrao v. United States, 152 F.3d 188, 1998)". For a more particular analysis of the act's provisions and stipulations, the best work I've encountered so far is a lengthy break-down by Charles Doyle.