Letters from our readers.
Dec. 18 1998 3:30 AM

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Trustbusters Have Job Security


The Dec. 14 edition of "Today's Papers" notes a Washington Post report that David Boies, the lead Justice Department attorney in the Microsoft case, has lowered the hourly fee that he is charging the government. The column asks whether this is legal, if Boies' motive was to keep his share of the work.

The answer can be found in the definitive rhyming opus on antitrust law, R.W. Grant's Tom Smith and His Incredible Bread Machine:

You're gouging on your prices if

You charge more than the rest.

But it's unfair competition

If you think you can charge less!

A second point that we would make

To help avoid confusion

Don't try to charge the same amount!

That would be collusion!

In short, Boies' reduction of his fee constitutes unfair competition. Of course, if he'd left his fee unchanged, that would be collusion, though in this case he'd be colluding with himself and would eventually go blind.


How's that for legal clarity?

--Sam Kazman


Bork and Mindy

Are there two Robert Borks, as Michael Kinsley writes in " Book Bork, Browser Bork"? But not just on antitrust. We have two Borks for probably any subject. Give the man a retainer or the proper ideological cause and he readily will tailor his views to the needs of the moment.


I interviewed Bork several years ago for my book The Wars of Watergate. His role in the Watergate affair has, in all fairness, been badly distorted. Never mind. In our conversation, he spoke very forcefully against the special prosecutor (now independent counsel) statute. "You cannot bag a case in the Justice Department," he told me. "Too many lawyers, who like to talk to too many reporters." He was absolutely right, of course.

Fast forward to 1994 and beyond. An independent counsel to investigate President Clinton? Of course. And "Judge" Kenneth Starr to conduct the investigation? Of course, said Bork, who appears as a regular cast member in those situation comedies that pass as "talk shows" every night, vigorously extolling the virtues and honesty of "Judge" Starr.

Kinsley comes close to the real reason for rejecting Bork for a seat on the Supreme Court. The man has the intellectual honesty of a hired gun. Which he has truly become.

--Stanley I. Kutler

Fox Professor of American Institutions

University of Wisconsin

Madison, Wis.


First, We Kill All the Lawyers

I'm sure Michael Kinsley's "Book Bork, Browser Bork" is right to say that Robert Bork's current posture on the Microsoft antitrust case represents a departure from his 20-year-old book on antitrust law.

But since when is a lawyer expected to actually possess the views he espouses on behalf of his clients? If the Kinsley Doctrine is that a client can only select a lawyer who honestly believes in the legal arguments of the client, then Bill Clinton wouldn't have any lawyers.

--Robert Little

Memphis, Tenn.


Perjury Is Bad, Smearing Is Worse

Just a quick point on David Plotz's " Dispatch" from the Dec. 9 House Judiciary Committee hearing.

Plotz writes, "Yesterday I called Lindsey Graham, R-S.C., 'admirable.' I apologize. ... This afternoon, Graham reveals himself, and he does it in such a calculating way that I wonder whether everything he has done till now has been pure performance. As the final speaker on the final day of hearings, Graham unleashes a 15 minute harangue about Clintonian evil. Clinton's true crime is not perjury or adultery, Graham shouts, it's that he planned to destroy Monica."

Isn't the most reprehensible aspect of Clinton's conduct from a moral point of view the fact that he either orchestrated or knowingly permitted the resources of his position and office to be used in an attempt to destroy the reputations of those who have accused him of misdeeds?

The story of the sexual activity is disturbing, given the power imbalances between the participants, but the story is a tawdry one, and most well-mannered people would just as soon not have to hear about it, especially since the "victim" is not making any complaint.

The lying can be viewed as a natural human failing, which most people, it appears, are ready to forgive.

Lying under oath is a more serious matter, but it is more serious for institutional reasons rather than purely moral ones. As the head of state and a living symbol of a system, which, in the name of justice, imposes laws upon and claims the right to exercise coercive power over all Americans, the president has a special duty--higher than that of an ordinary citizen--to abide by the rules that the system imposes. One of the most important rules for the whole justice system is the penalty against perjury. It is only right that Congress should take that issue seriously.

But from a purely moral point of view, is it not utterly despicable for the president of the United States to use the power of his office to destroy the reputation of a person for the sole purpose of ensuring that that person will not be believed when she tells the truth? Such conduct may not be a "high crime or misdemeanor." It may not even be illegal. But it is surely a moral abuse of the powers of the presidency that should not go unnoticed.

--Kenneth J. Tyler

Vancouver, British Columbia

Jocks of the World, Unite! You Have Nothing To Lose but Your Scholarships!

Jim Naughton's " Sudden Death" has missed the forest for the trees. He complains that a few powerful schools are aligning themselves to take a larger slice of the revenues generated by big-time college athletics and bemoans the small colleges whose athletic programs will be destroyed by this.

What Naughton has missed is that the entire NCAA system is corrupt, making millions of dollars off student athletes who can't even accept plane fare from alumni to visit family.

That's the real travesty of college sports. Arguing which schools should keep the huge revenues generated by athletes really misses the point.

--Anthony Lapadula

Redmond, Wash.

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