Senate Republicans--fresh from giving antitrust prosecutors unlimited wiretap powers--are now poised to further erode due process for antitrust defendants by eliminating the government's burden of proof in merger review cases. At a Judiciary Committee hearing yesterday, Sen. Arlen Specter, committee chairman and Pennsylvania Republican, said he would propose amending the antitrust laws to specifically target the oil industry. Today's Wall Street Journal reports:

Specter received support from some of the [Judiciary Committee's] Republicans and nearly all of its Democrats for legislation he is drafting that would make it easier for the Justice Department to challenge proposed mergers. Specifically, it would remove language from existing law that requires the government to prove a merger would "substantially" lessen competition, in effect shifting more of the burden of proof that competition won't be lessened to companies. It would also allow the Justice Department to sue members of the Organization of Petroleum Exporting Countries for conspiring to fix the world price of oil.

At every turn, congressional Republicans have expanded the powers of antitrust prosecutors without providing a single measure of oversight of accountability. In addition to the recent wiretap legislation, the Republican Congress has increased the criminal penalties for antitrust violations and allowed the DOJ to selectively prosecute some companies for participating in cartel activity, but not others.

Specter's proposal to eliminate the "substantially" lessen competition standard in merger review will mean only one thing: No sane company will ever fight a DOJ merger challenge in court. Few do even under existing law. But while the Republicans have blind faith that prosecutors can do no wrong, the consequence of eliminating due process is that prosecutorial actions will never be reviewed by independent courts (and certainly not by the legislative branch!) Abuses will be largely hidden from public view, and those that dare to complain will find themselves targeted by prosecutors in the future.

More on Specter's prosecutor worship from Bloomberg.

I have an extended post at the Mises Economics Blog on the Supreme Court's recent decision in the Dagher joint venture cases.

The entire VoluntaryTrade.org website had to be reinstalled this evening. Unfortunately, we lost several enteries on the blog from March 1 until today. Thankfully, the website is otherwise in good order.

Earlier today, the U.S. Supreme Court unanimously (sans Justice Samuel Alito) overturned a Ninth Circuit holding that it is "per se" illegal under the Sherman Act for a lawful joint venture to price its own products. In Texaco v. Dagher and Shell Oil Company v. Dagher a group of gasoline retailers challenged the pricing policies of a Texaco-Shell joint venture, Equilon, as illegal "price-fixing." A split Ninth Circuit panel bought the argument, but the eight Supreme Court justices hearing the case decided otherwise.

You can read Justice Clarence Thomas' concise opinion at this link.

We now have a copy of the complaint filed against the NCAA by a group of former players available for download. See this post from last week for more about the case.

Radley Balko blogs about the State of Minnesota's recent decision to fine Midwest Oil of Minnesota $140,000 for violating a state law that forbids selling gasoline ?¨below cost?Æ:

[T]hese kinds of laws are justified on the grounds that big chains can supplement gas sales with other sales, thereby enabling them to price smaller gas stations out of the market. I'm not convinced that's true. But if it is true, so what? Why are independently-owned gas stations who sell more expensive gas and don't offer the benefit of a convenience mart worth saving?

. . .

It's also curious that the governor opposes the fine, which was given by the state's Commerce Department. Don't Commerce Departments generally report to the governor? Are things different in Minnesota?

To answer Balko's question, let's start with the law at issue, Minn. Stat. ?ü 325D.71:

Any offer for sale of gasoline by a retailer by way of posted price or indicating meter that is below cost, as defined by section 325D.01, subdivision 5, clause (3), is a violation of section 325D.04, except that the criminal penalties in section 325D.071 do not apply. In addition to the penalties for violations and the remedies provided for injured parties set forth elsewhere in this chapter, the commissioner of commerce may use the authority under section 45.027 for the purpose of preventing violations of this section. A retailer who sells gasoline at the same or higher legally posted price of a competitor in the same market area, on the same day, is not in violation of this section.

This brings us to ?ü 45.027, which authorizes the commissioner of the Department of Commerce to ?¨impose a civil penalty not to exceed $10,000 per violation upon a person who violates any law, rule, or order?Æ under the Department's jurisdiction. Although the governor appoints the commissioner, it seems to me that he generally can't tell the commissioner what fines to issue or not issue. Furthermore, Balko somewhat misstates Governor Tim Pawlenty's position. According to the article Balko cited, Pawlenty has ?¨urged a repeal of the state's minimum price laws?Æ; he apparently did not comment directly about the Midwest Oil fine.

But that's a relatively trivial matter. I concur with Balko and Pawlenty that the minimum price law should be repealed. Midwest Oil has previously received at least three fines for ?¨below cost?Æ pricing, and since 2002, at least six other retailers have suffered similar penalties. The objective here is not to protect consumers, but to (1) justify the employment of the Commerce Department staff that enforces the law and (2) to maintain the status quo by discouraging more efficient competitors from lowering prices and thus putting less-efficient firms at risk.

Today the Federal Trade Commission published a Federal Register notice seeking public comments on ?¨marketing activities and expenditures of the food industry targeted toward children and adolescents.?Æ Last November, Congress ordered the FTC to prepare a report on this subject by July 1 of this year. The FTC is now seeking ?¨empirical data?Æ and other relevant information for use in the report.

A public comment request is unremarkable and generally unobjectionable. But the FTC's notice also states that

[t]he FTC is interested in receiving publicly available information that can be used to prepare the report. However, because it is unlikely that information sufficient to prepare the report is publicly available, the Commission likely will later issue orders under Section 6(b) of the FTC Act (15 U.S.C. ?ü 46(b)) to obtain needed information from food industry members.

In other words, the FTC will force companies to turn over private information without a subpoena. The statute cited by the FTC purportedly authorizes the agency

To require, by general or special orders, persons, partnerships, and corporations, engaged in or whose business affects commerce . . . to file with the Commission in such form as the Commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the Commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective persons, partnerships, and corporations filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the Commission may prescribe, and shall be filed with the Commission within such reasonable period as the Commission may prescribe, unless additional time be granted in any case by the Commission. (Emphasis added.)

Calling a subpoena a ?¨general or special order?Æ is a sleight-of-hand designed to confuse an unambiguous constitutional violation. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added.)

There is no ?¨probable cause?Æ for the FTC to forcibly search any company under the pretext of preparing a report for Congress. Indeed, the legislative language authorizing the report only maintains that Congress ?¨is concerned about the growing rate of childhood and adolescent obesity and the food industry's marketing practices for these populations.?Æ Congressional ?¨concern?Æ about a subject beyond the federal government's enumerated powers??the framers gave Congress the power to fix the ?¨standard of weights and measures,?Æ not the weights of children??is not probable cause.

Antitrust laws are supposed to "protect competition"--except when competition produces results the losers don't like:

MEXICO CITY, Feb 23 (Reuters) - Mexico's long-established retailers want the Congress to strengthen antitrust laws to stop Wal-Mart's expansion juggernaut from devouring smaller businesses, a sector leader said on Thursday.

Vicente Yanez, head of the retail association ANTAD that includes about 100 top retailers other than Wal-Mart Mexico, said fierce competition from the global powerhouse is one factor squeezing sales for other retailers, along with a thriving informal economy and tepid economic growth in Mexico.

Yanez urged lawmakers to pass proposals to bring anti-monopoly laws to international standards and provide for more "equilibrium" in the market.

Ted Frank, blogging at PointOfLaw, criticizes the "lawyer cartel" for requiring people to pass a state bar exam before practicing law. Frank correctly notes that this has nothing to do with "consumer protection," and everything to do with restricting free-market competition for legal services.

I would add that one effect of the lawyer cartel is that it creates a presumption that only cartel members are capable of discussing or interpreting the law. As I have long noted, the Federal Trade Commission is composed entirely of career antitrust lawyers despite no statutory requirement that a commissioner even possess law degree. Yet a small, self-selected subset of the lawyer cartel--antitrust lawyers--monopolize an agency with the power to regulate virtually every business practice in America. The most appalling thing is that FTC members assume that passing the bar exam--which Frank notes has little to do with the actual practice of law--invests them with superior knowledge of how to run the economy via antitrust policy.

Via Mondaq, the law firm of McMillan Binch Mendelsohn LLP has prepared a nice summary of Canadian antitrust law.