Global Policy Forum

Judge Jackson Proved The Corporate Beast
Can Be Tamed By The US Statute Books

By Jonathan Freedland

Karl Marx always said capitalism contained the seeds of its own destruction - but perhaps it contains the seeds of its own salvation, too. Is that too optimistic a reading of Monday night's US court ruling against the computer behemoth Microsoft? Maybe. But it is a tempting one.

For in the most capitalist nation in the world, a judge nominated by the most conservative president in living memory has plunged an arrow into the corporate beast. Judge Thomas Penfield Jackson, a free-marketeer appointed to the United States District Court by Ronald Reagan in the go-go 1980s, has achieved in an instant what leftwing activists have dreamed of for years. He has branded one of global capital's biggest players a corporate lawbreaker, a bully which abused its monopoly power to stifle creativity and innovation in an industry which relies on those qualities for its survival. He lambasted Microsoft for keeping "an oppressive thumb" on the computer software market, forcefeeding consumers Microsoft's operating system, Windows, and then its internet browser, Explorer. These were not the words of some crunchy, eco-warrior shaking his fist at the big boys of Seattle: this was the measured judgment of an American judge, administering American law.

It could not be more important - or more heartening. For what Judge Jackson has done is place a limit on corporate power. He has drawn a line and told mega-capitalism, "This far and no further." That counts as a blow not just against boardroom greed - but against the twin diseases of our globalised era, fatalism and passivity. By his ruling, the judge has reaffirmed the power of consumers and citizens. He has reminded us that, even in a world dominated by economics and market forces, politics - and the law - still matter.

It could not have come at a better time. Defeatism in the face of the market is rife just now, especially in Britain. We watch the 50,000 workers of the west Midlands facing redundancy thanks to BMW's sell-off of Rover, and we feel powerless. People want the government to do something, but few know what. Most of the current demands amount to requests to soften the blow.

We see Barclays close up to 4,000 bank branches, thereby stranding rural communities across Britain, and we feel just as impotent. Chris Mullin, a junior minister, gamely suggests a boycott. It's a good idea - but few of us are convinced it will make much difference. Whether it's Barclays or BMW, we feel the market has an iron logic and it would be quixotic, Scargillite madness to buck it.

Not now. Judge Jackson, with the help of the US statute book, has proved capitalism need not run wild: it can be tamed. He has not had to craft some new, interventionist ideal from the bench. Instead he has simply enforced America's anti-trust (or anti-monopoly) laws. These are the same rules which in 1911 took one look at John D Rockefeller's Standard Oil - which by then had gobbled up 90% of the American petroleum industry - and demanded the company break up. In 1984 it was AT&T's domination of the telephone market which fell on the wrong side of the anti-trust rules. "You're getting too big," said the law. "It's time to break up." If Judge Jackson's ruling is not overturned on appeal, he may well end up prescribing the same medicine to Bill Gates.

Is it just America that boasts this protection against excessive capitalism? Does it work like a vaccine, so that a nation where capitalism coarses through the collective bloodstream is somehow uniquely protected against its ill effects? Not necessarily. The European Union cannot claim the scalps won by America's anti-trust laws, but Articles 85 and 86 of the Treaty of Rome are darts that can be fired at corporate bullies who try to choke competition. In 1997 Brussels struck out at Boeing whose $14bn merger with McDonnell Douglas would have handed them a virtual monopoly in the world market for aircraft. The merger went ahead, but only after Europe had attached some useful strings. The continent's arsenal may not be as mighty as America's antitrust law, but it does exist.

Britain's own defence against the big boys is a work in progress. For years Britain seemed like a place where mega-business could do what it liked: witness the green light repeatedly shown to Rupert Murdoch as he gobbled up more and more of our national media. Now there is an effort to tighten the rules. Starting last month, the Office of Fair Trading has been given tougher powers to root out the Microsofts of British industry. It can now demand documents, launch dawn raids on recalcitrant firms and even slap instant fines on companies deemed to be playing with loaded dice.

We are still some way from Judge Jackson, but Labour might be heading in that direction. Last year Yvette Cooper, the impeccably modernising junior minister, published an essay on competition, wondering whether the government would "pass the Microsoft test". Would it be willing, she mused, to take on a flagship national company if such a firm were getting too big for its boots? Gordon Brown's chums say he's already passed that test: threatening last month to eat in to BT's monopoly on local calls. Monday's ruling might help him stand firm.

The logic of all this is not anti-capitalism. On the contrary, America invented this vaccine to protect enterprise, not to kill it. The authors of the antitrust laws understood that a truly free market requires competition; without it monopolies expand, before growing slow and flabby. The true capitalist is on the side of the new, cheeky Davids buzzing around the ankles of the corporate Goliaths. That, as Judge Jackson understood, is why the friend of business has occasionally to take an axe to this or that company. To promote the US software industry, Microsoft may have to tear itself apart. Eventually BT might have to shrink - not to satisfy old Labour spite, but to keep Britain a dynamic, competitive place for capitalism.

This is not exactly socialism, but for those anxious to tame the corporations who increasingly shape our world it may be the next best thing. It certainly beats giving up. The global campaign against Monsanto and its genetically-modified food had already showed that consumer action can work: in December the company bowed to pressure, spun off the GM wing of its business and quietly folded itself into another drugs firm. Now Judge Jackson has proved that the law can make a difference, too. And lest we give up on electoral politics we ought to note this: Republican George W Bush has hinted that, if he becomes president in November, he will do his best to halt the war on Microsoft. Al Gore takes the opposite view. The vice president may not want the endorsement - but you can guess who old man Marx would vote for.

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