Stiglitz And Anti-Trust: The Light Comes On?
The Market Ticker - Commentary on The Capital Markets
2017-10-30 10:23 by Karl Denninger
in Corruption , 567 references Ignore this thread
Stiglitz And Anti-Trust: The Light Comes On?
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This is an interesting article to read; yes, it comes from someone who is well-known as Democrat, but the breadth of the charges leveled is quite breath-taking -- and if anything, in my view, understates the problem.

There is a widespread sense of powerlessness, both in our economic and political life. We seem no longer to control our own destinies. If we don’t like our Internet company or our cable TV, we either have no place to turn, or the alternative is no better. Monopoly corporations are the primary reason that drug prices in the United States are higher than anywhere else in the world. Whether we like it or not, a company like Equifax can gather data about us, and then blithely take insufficient cybersecurity measures, exposing half the country to the risk of identity fraud, and then charge us for but a partial restoration of the security that we had before a major breach.

Some century and a quarter ago, America was, in some ways, at a similar juncture: Political and economic power seemed concentrated in a few hands, in ways that were inconsonant with our democratic ideals. We passed the Sherman Anti-Trust Act in 1890, followed in the next quarter-century by other legislation trying to ensure competition in the market place. Importantly, these laws were based on the belief that concentrations of economic power inevitably would lead to concentrations in political power.

Read this carefully; it's accurate.  The Sherman Act, followed by Clayton (to close loopholes left under Sherman) and Robinson-Patman (which codified that buyers of like kind and quantity could not be discriminated against for physical goods) followed.

But now continue, which I note is an unbroken quote (in other words, I'm not skipping forward in Stiglitz's piece) and you'll find something deeply troubling:

Antitrust policy was not based on a finely honed economic analysis, resting on concurrent advances in economics.

What?  Policy is not law.  You can codify policy into law but until you do law wins.

It was really about the nature of our society and democracy. But somehow, in the ensuing decades, antitrust was taken over by an army of economists and lawyers. They redefined and narrowed the scope, to focus on consumer harm, with strong presumptions that the market was in fact naturally competitive, placing the burden of proof on those who contended otherwise.

How?

Let me point out how it didn't happen.  It didn't happen by actually diluting or removing the law.  May I quote just the first two sections as they stand today, which are for all intents and purposes exactly as they stood 100+ years ago?

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

and

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

That doesn't look very diluted to me.  In point of fact it's quite clear that you don't have to succeed nor do prices have to go higher in order to get charged; you need only attempt to monopolize, or attempt to restrain tradeand you've committed a felony.  There is no necessity of proving "consumer harm" in that statute whatsoever.

There has been no "dilution" in the law in this regard at all.  It says what it said in 1890; do this and go to prison.

On this basis, it became almost impossible to successfully bring a predatory pricing case: Any attempt to raise prices above costs would instantaneously be met by an onslaught of new firm entry (so it was claimed). Chicago economists would argue—with little backing in either theory or evidence—that one shouldn’t even worry about monopoly: In an innovative economy, monopoly power would only be temporary, and the ensuing contest to become the monopolist maximized innovation and consumer welfare.

Who cares what Chicago economists argue?  Economic theories do not negate law.  If said Chicago school economists had managed to re-write the law Stiglitz would have a point, but that's not what happened.

But if we begin with the obvious, opposite hypothesis—that what we see in our daily life is true, that our economy is marked in industry after industry by large concentrations of market power—then we can begin to simultaneously understand much of what is going on. 

Those concentrations of market power occur because the law is violated on a daily, wanton and intentional basis and what the so-called Chicago-school economists have done is "convince" thousands of prosecutors and investigators at both the State and Federal level to ignore the law.

In a political system where justice actually exists that act is commonly known as obstruction of justice and that, my friends, is supposed to be charged as a separate criminal felony!

Note that while an economist (or anyone else) has the right to advocate that a law is wrong and thus should be changed until it is no prosecutor has the right to ignore said law.  The law either stands as written or it must be amended.  The reason we have a justice system is because the law is supposed to apply equally to everyone without fear or favor; it is in fact upon this premise that justice rests, and upon which you, I and everyone else are supposed to conduct our lives.

In fact the willful and intentional acts of refusal to prosecute constitute a willful and intentional violation of every one of these people's oath of office, an act for which they must be removed from their office and replaced, and to the extent money is involved (as is the case with all "economists" since that's their job) we are talking obstruction of justice as well.

Let me remind you again that anti-trust law in this regard does not require a showing that actual price harm to consumers take place.  The above quote is the entirety of the first two sections of said law; the mere attempt to monopolize or restrain trade is illegal irrespective of whether you succeed.  Likewise whether or not someone can prove price injury does not matter either; it's still illegal.

The reason the law is written this way is specifically to prevent the defenses and dilutions that Stiglitz argues have "polluted" anti-trust.  The authors were well-aware that firms like Standard Oil (or Amazon, Google and Merck for that matter) would make the argument that "business efficiency" is increased by monopoly control over chains of supply and similar things, and that proving injury, especially at a criminal standard of proof, would be extremely difficult or impossible.  The reason for this is simple: Doing so would require being able to prove what would have happened but for the monopoly or restraint of trade, and since that second event never occurred said proof is virtually impossible to come by.

Authors of statutes as well as scientists generally are well-aware that proving a negative is almost impossible to do in the general case, never mind proving what would have happened but for some complex series of actions by some party.  In a civil action the preponderance of evidence (in other words, "more likely than not") is sufficient to win but anti-trust is a criminal law and the standard of proof there is "beyond a reasonable doubt."  You simply can never get there if you must prove what would have happened but for the monopoly or restraint of trade.

Amazon, the entire health system in this country (too many firms to list), Google, Facebook and others have all simply ignored this body of law because nobody has or will bring charges.  It's not that the law doesn't exist and doesn't make attempting to establish and maintain monopoly control a felony -- it does, and it's more than adequate to put a stop to this crap across the board and put all of these executives and more in prison for decades.

Stiglitz argues we need to "rewrite" or "revamp" the law in order to address these issues, which he correctly identifies.

He's dead wrong on his prescription: We need to enforce the already-existing laws, which have not been diluted, and if the law enforcement community from the local prosecutor (I remind you state law typically has an anti-trust section that reads almost-identically to federal code) all the way on up to our federal Attorney General will not do so, irrespective of the reason, then they and everyone supporting their refusal must be replaced by whatever means are necessary.

Such willful refusal to enforce the law is even worse than you'd think: It's entirely due to money.  The prosecutors and others in the "justice" system are implicitly and explicitly being bribed in that they know that if the law is enforced against health care and insurance firms alone, say much less Amazon, Google and Facebook the stock market will instantly crash by half or more because it is only through these unlawful schemes that the extraction of money these firms have used to boost their stock prices and steal from consumers is possible.

Let me remind you that in the health care space alone every single American family has a middle-class house payment stolen from them each and every month through these practices.

The more-difficult to identify harm in specific terms with regard to companies like Amazon, Facebook and Google, all of which also need to be investigated and brought to justice, is far harder to quantify.  The use of offshoring intellectual property that is actually developed and used here (to evade taxes), the offshoring of labor (again, to evade not only labor cost but taxes) when the fruits of same are used here and similar all serve not only to destroy jobs by the millions but at the same evade paying taxes on those employee wages and corporate profits which in fact are generated by activity here.

Indeed every single company with an "offshore" call center that takes calls from United States customers is evading both labor costs and employment taxes that would otherwise be generated by economic activity in the United States while at the same time destroying United States jobs.

It is for this very reason -- that the harm can often be difficult to quantify and prove in dollar terms that anti-trust law is written the way it is.  It makes specifically illegal at a felony level any attempt to restrain trade of monopolize commerce irrespective of whether you succeed in doing so or whether someone can quantify and prove, at a criminal standard, the amount of economic harm or even whether it occurred.

The people of this nation are able to remove and replace the political appointees and government employees that refuse to enforce this 100+ year old body of felony criminal law through peaceful political action -- if we so insist.  If it becomes necessary to hold a general strike to do so, or to protest en-masse and make every one of their lives and that of their families a living hell until they do their jobs then so be it.  If peaceful remedies fail then this nation is finished as a representative republic, and what follows will not be pleasant.  But until and unless such peaceful and legal remedies are attempted there's simply no reason to believe they won't work.

But this much is certain: Unless we insist as a body politic that the economic harm done to us is equally damaging and as unacceptable as criminal assault, robbery and other forms of criminal butchery, and we refuse to allow it to continue unanswered then why would any CEO fear justice under the law when we continue to sit back and let them get away with it despite laws specifically criminalizing their conduct?

And by the way, if you think the impact of prosecutors ignoring the law is simply a money issue, it's not.  Why do you think Kevin Spacey thought he could get away with sexually assaulting an under age boy (that's commonly called pedophilia) -- he apparently has all but admitted to the assault although he claims not to remember the specifics.  Why do you think Weinstein thought he could get away with what he did for as long as he did?  Why do we have extreme levels of despair in this nation related to economic prospects by so many, which in turn leads some of those people to addiction and death, all for the profit of the pharma and medical industry?

Why do you think all this crap goes on folks?

It continues on a daily basis specifically because we as a people in the United States refuse to demand that the law be enforced against rich and powerful individuals and corporations just as it is against you and I and if prosecutors fail to do so we as citizens refuse to enforce that demand by whatever means are necessary.

Your sons and daughters are assaulted by people like Weinstein, the hospital up the road has twenty-five times the infection rate of the Surgery Center of Oklahoma (responsible, in large part, for 200,000 avoidable deaths a year) and your nephew dies from opiod overdose for the exact same reason you get screwed out of that house payment each and every month.

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Whitehat
Posts: 151
Incept: 2017-06-27

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the people must be able to understand the arguments that you put forth. in the absence of this understanding, do they have the motivation to learn about the problem. can we as advocates motivate them to do something? people have also abdicated to a professional politician model which we are fighting.

i spent much time trying to explain and advocate what we discuss here and came to the conclusion that people are only willing to learn something if the consequences for not are rather severe. from parenting, to drug treatment to leadership training, sometimes a person has to feel pain and desperation to make a change.

we will not get there as the system always engineers a soft landing or lets the impact be felt by only a subset. even during the great depression, employment was still 80% if not more and people looked forward to restoration of the old system and were sold the hope of its return. in the major metro areas starvation and privation were very isolated and often mitigated well. the deaths and misery were not first hand experience for most and limited in effect. not to mention that the still functional people acquired their future wealth at fire-sale prices. let's not forget that there was also a massive effort to employ, feed and shelter the unfortunate who survived. consequently, there was never a public outcry to make things right and put in place a hard social consequence for reckless actions. this is why we find ourselves here today.

it is curious what they will do to deal with the consequences this time and what kind of country we will be. the system is always protected; things just seem to work out. however we venture farther from what we were intended to be as a nation and culture. perhaps we can go through this and a few more cycles before we become a third world ****hole.

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There are two ways to be rich: One is by acquiring much, and the other is by desiring little.
Aquapura
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Quote:
...sometimes a person has to feel pain and desperation to make a change.


Agree completely. The modern welfare state assures us that the populace remains docile. The day the benefits end is the day the riots begin.
Pietertvl
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"Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony"

Two problems with your charges here, at least as far as the alleged monopolists you identify. (Amazon, FB, Google, etc)

The laws - as I understand them in these particular lines of business, only stand as obstacles to proposed mergers (combinations). They would prevent Google from buying a search competitor, or Amazon from buying Walmart. Absent such an attempt "to combine" (ie, a proposed merger) there is no event for DOJ to investigate.

Now the conspiracy dimension to the law leaves a good bit more room for DOJ to operate, since DOJ could examine whether Google and Yahoo and other search engine companies were attempting to price fix (or collude in some manner) while remaining nominal competitors.

Obviously, my remarks here do not apply to concentrated but not monopolized industries like insurance companies or hospital services. There have been mergers that have gone unchallenged. There is little or no price based competition. This arena is ripe for antitrust attention, as you've been arguing.

The problem is whether the law affords DOJ the tools to break up a standing monopoly. I'm serious here. The antitrust laws left a glaring loophole.

... it may be argued that Amazon and Google and other monopolists or near monopolists have engaged in anticompetitive conduct by forestalling new entry and competition (by buying up startups with related innovation). I was at the FCC on its competition policy staff when competitors to the RBOCs/ILECs were emerging (ie, the CLECs). DOJ outright told us that the Merger Guidelines (DOJ's interpretation of the law, granted) did not give them the means to challenge a standing monopolist that sought to acquire a POTENTIAL competitor (one that wasn't a competitor yet but might be in the future). So the FCC worked out the means to tackle those cases, in the telecom realm, under its "public interest" mandate. DOJ essentially delegated to the FCC how the competitive aspects of these cases were to be viewed. (PS - when Bush took office, Michael Powell dismantled the FCC's competition review role).

I think the same situation exists here.

Now ... yes, DOJ got monopolist AT&T to breakup back in 1980. But AT&T owned Western Electric as an equipment supplier. So there was anticompetitive vertical integration. And AT&T choose the breakup option over the prospect of losing the original case. DOJ could not have prevailed in a court challenge to AT&T's standing monopoly in telecom services had Western Electric not been there to give them the needed leverage.

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"All the perplexities, confusion and distresses in America arise not from defects in the constitution or confederation, nor from want of honor or virtue, as much from downright ignorance of the nature of coin, credit, and circulation." ~ John Adams
Themortgagedude
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jes322@columbia.edu

Just saying - we might want to let him know our thoughts. I already did. :)

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Tickerguy
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@Pietertvl

Quote:
"Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony"

Two problems with your charges here, at least as far as the alleged monopolists you identify. (Amazon, FB, Google, etc)

The laws - as I understand them in these particular lines of business, only stand as obstacles to proposed mergers (combinations). They would prevent Google from buying a search competitor, or Amazon from buying Walmart. Absent such an attempt "to combine" (ie, a proposed merger) there is no event for DOJ to investigate.

Where do you see that in that in the statute? THAT REQUIREMENT IS NOT THERE.

I see a LOT of "ORs" and not one AND, nor do you get to CHANGE "ORs" to ANDs.

You ALSO don't get to ADD words to a statute that don't exist. I quoted the ENTIRE FIRST TWO SECTIONS of the chapter, leaving NOT ONE WORD out.

It does not say "in combining two businesses then X" it says EVERY PERSON. If you make ANY contact OR combination OR conspire (which requires two or more people) THEN you're guilty.

Is it so ****ing HARD to read the ******N LAW before commenting, ESPECIALLY when I quote the ENTIRE ****ING THING? It's not very long either, nor hard to understand.

And by the way, that second section is Clayton. The FIRST section is Sherman; Clayton was added to REINFORCE Sherman after some people argued it "wasn't clear enough" (and thus what they were doing wasn't actually illegal.)

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Winding it down.

Riverbarrow
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Regarding what we put up with from health insurance companies....

I got a call today from some company saying they were calling on behalf of my local hospital (where I recently had an MRI and did some PT sessions), who was recently bought by some big company. The phone number was from Texas--I live in Virginia. She said that in order to speak to me that she would have to verify some information due to HIPAA guidelines. I told her that I wasn't going to verify anything over the phone to someone calling from an unknown phone number and I asked what the phone call was about. She said she could not tell me without "verifying my information". I told her then to email or mail me the information. She said she couldn't do that. So I asked her again what the call was about. She repeated that she couldn't tell me under HIPAA rules. My response to her was that if she couldn't tell me, I wouldn't talk to her.

MAKES MY BLOOD BOIL.
Aztrader
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Google and Amazon work together to monopolize the retail market. Amazon has basically bought every relevant key word in every market on Google. I don't know if they get special pricing on these ad words, but the costs must be enormous and by doing this, they have monopolized Googles search engine to bring up their ads first. Google has literally taken over as the primary search engine and now their ads are the first things that come up in any search. If they were marketed as a search engine and allow relevant search data to appear based on the search, then we wouldn't have a problem. Instead they have jammed all searches with their paid ads making their "search" engine fairly worthless. They also ban certain search terms like "guns", basically discriminating against certain vendors selling lines that they find offensive.
Amazon's business model literally destroys pricing of most products listed. If a manufacturer maintains MAP pricing on their products and a dealer lists on Amazon, then 98% of the time, the pricing will violate the MAP requirements. We don't see this on the net very often, but on AMazon it happens every day. Once the price drops too much, then the buyers have price discovery now demanding that everyone sell said product to match Amazon.
For Amazon to have the power to hand out price discovery on every product on their site seems like a very destructive monopoly that is killing smaller competitors selling the same lines.
I am dealing with a product right now, the Taser Pulse on Amazon. My normal wholesale is $296.00 and discounted wholesale is $251.00. Today, a couple of dealers just cut their Amazon price to $299.00. Considering that these are really dealers and not Amazon disguised as dealers, there is no way they aren't losing money after paying the 15% Amazon fee and shipping costs.
I sent this to my distributors and they don't seem to care that their dealers are getting blown out by this aggressive pricing. Only Amazon could list at this price and make money because they don't get charged the fee. This makes me think that they have set up straw stores on their site in order to move product below MAP. I know that Amazon is listing on Ebay under various names, so why not on their own site. None of my distributors can find these companies to put a stop to this.
Pietertvl
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Karl
I wasn't trying to counter your analysis across the board.
I was focusing more narrowly on one of the "OR's" and isolating that path from the standpoint of whether its viable under the law to expect more antitrust prosecution under existing law of anti competitive combinations, or standing monopolies.
My point, bottom line, is that DOJ doesn't believe that the courts would uphold their challenges of combinations that may preempt future competition. Stiglitz said the same explicitly, and called this one of the loopholes in the law that needed fixing.
And the AT&T case seems to clearly document that DOJ believes the courts wouldn't even uphold a break up of an existing monopolist (in telecom services) had there not been evidence that it was retraining trade in telecom equipment.
I'm not an antitrust attorney, but the problem appears to go beyond antitrust enforcement (DOJ) and onto the courts (and how they interpret the law). Suggesting the law needs further clarity.
What I know for certain, is that federal agencies are very reluctant to initiate antitrust cases in the face of doubt as to whether they can prevail in court.

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"All the perplexities, confusion and distresses in America arise not from defects in the constitution or confederation, nor from want of honor or virtue, as much from downright ignorance of the nature of coin, credit, and circulation." ~ John Adams
Tickerguy
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Quote:
I wasn't trying to counter your analysis across the board.
I was focusing more narrowly on one of the "OR's" and isolating that path from the standpoint of whether its viable under the law to expect more antitrust prosecution under existing law of anti competitive combinations, or standing monopolies.
My point, bottom line, is that DOJ doesn't believe that the courts would uphold their challenges of combinations that may preempt future competition. Stiglitz said the same explicitly, and called this one of the loopholes in the law that needed fixing.

It's NOT a loophole.

Look, Statutes are Statutes and words mean things. The word OR is clear. So is the word SHALL.

Yes, I know that armies of lawyers try to argue otherwise all the time, but the fact remains that the law is CLEAR and it applies. Look, in the medical field the insurers and scammers went ALL THE WAY TO THE USSC in 1979 trying to argue that they had an exemption to Anti-Trust law.

THEY LOST.

The problem is NOT that the law isn't there or doesn't cover the behavior.

It's that the government won't bring the charges AND PROSECUTE THEM, putting people in prison. THEY JUST DON'T BRING THE CASES.

The law is the law. If judges won't uphold the CLEAR language of the statute then the judges need to go -- by whatever means necessary. If the DOJ won't bring the cases then the DOJ needs to go -- by whatever means necessary.

There ARE peaceful means to do that BUT you have to give a **** and STOP with the bull**** excuse making AND YOUR BEHAVIOR, BOTH HERE AND ELSEWHERE, THAT SUPPORTS SAME.

Otherwise tell me again why anyone should obey any of the OTHER laws, like, for example, the ones that bear on NON-PEACEFUL acts.

Either the law means something, ESPECIALLY when we're talking about criminal felony conduct, or it doesn't. The law is NOT multiple-choice, any more than than the 10 Commandments (if you believe in them) are.

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Winding it down.

Dasman
Posts: 92
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Lawrence, KS
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Interesting piece...

I knew Joe Stiglitz was a lefty... but he has a history of talking about things openly that the typical "ivory tower hacks" (who are largely bought and paid for... or just plain idiots) wouldn't touch with a 10 foot pole. He's taken a fair amount of flack over his career... for using simple math.

His analysis here is pretty spot on. But, is it me... or just his politics, that caused him to overlook what, in my opinion, is the greatest influencer and enabling power of multinational corporate monopolies in the modern age... corruption in the 3 branches of government?

Your strong commentary on "health care" is a perfect example.

Hell... even Trumps election website, under the health care policy position, had "mandated price discovery" for products, care and services in health care.

But... no Republican or Democrat will touch that rail... for fear of losing the dollars and blessing of the "health care" industry.

It is probably not too far off of fact, that an EMP or solar flare of the level of the Carrington Event would lead to about 90% of the American public being dead some time within a year.

But I'm not sure anything short of an event with implications of that gravity will really lead to a shift to a simpler, and more honest, way of living as a nation.

Casino life = living in America
Yourapostasy
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Karl, I believe you are mistaken in your belief that more people voting/writing/demanding representatives enforce the law as-written will solve these issues. If all it took was vast voter support for a particular issue, banks wouldn't have been bailed out in 2008. It's going to take a lot more work and time than that. Unfortunately, I suspect we've run out of time.

I believe, and I've been acting upon that belief for the past two decades, that change only comes from putting in the time and effort within the dominant political machinery. Specifically, join one of the two primary parties regardless of your personal political affiliations/beliefs, learn the mechanics, and support and vote for the political party officials that most closely resemble your desired outcomes. Volunteer as election judge and clerk, jury duty, and if applicable in your state, grand jury duty. If you are in that mix long enough with sufficient effort, with a little luck you get appointed to/voted into committees where you can start modifying and inserting language into party platforms that move towards your personal positions, or affect rules and procedures, or influence budget decisions. You start to get recognized by representatives when you visit them in the capitol building. You start to get listened to when you testify in house or senate committee meetings. I'm but one grain of sand, and I keep plugging away and hope other grains join me post-haste. There is a cynical part of me that believes political parties are simply a mechanism to draw away cognitive attention and energy from misdeeds, but it is a proven, non-violent means of effecting lasting change in the US, so there I am.

Like I said earlier though, your arithmetic is correct, and we're out of time. The financial and monetary realities will overwhelm the political momentum before that momentum can be converted into meaningful action at the field level. The best we can do at this time I suspect, is spread awareness, and hope for a peaceful resolution through non-cooperation and non-compliance along the lines of what you're doing with minimizing income, eschewing medical facilities whenever possible, living as simply as possible, eliminating debt, etc. This hopefully lowers velocity and demand sufficiently to encourage more leaders to try opening up hospitals modeled after the Surgery Center of Oklahoma to tap into latent demand.
Tickerguy
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Quote:
This hopefully lowers velocity and demand sufficiently to encourage more leaders to try opening up hospitals modeled after the Surgery Center of Oklahoma to tap into latent demand.

Obamacare banned them. They didn't try to do it retroactively (that would have required an utterly HUGE payment under the 5th amendment as a "taking") but they quite-effectively barred any more of them from showing up.

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Winding it down.

Dennisglover
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Quote:
Obamacare banned them. They didn't try to do it retroactively (that would have required an utterly HUGE payment under the 5th amendment as a "taking") but they quite-effectively barred any more of them from showing up.

So, Obamacare itself both intends to and in fact does restrain trade?

Cognitive dissonance alarm!

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TANSTAAFL
Tickerguy
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The Government itself is exempt from Anti-Trust. Explicitly so.

However, those contracting with the government (whether directly or indirectly) are not.

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Winding it down.
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