01 May 2019

Law Day? Really?

Today is purportedly Law Day here in the US. Two items on today's calendar demonstrate… not so much.

First up, there's the farce of the Senate "hearing" involving Gen Barr on the Mueller Report. Leaving aside the incompetence of the questioning (even from the lawyer-members), they called the wrong witness. Bill Barr did not sit up late at night with PDF redacting software and produce that redacted version of the Report; he delegated to others who are not before the committee, and even if they were testifying themselves would not be competently questioned on any (let alone all) of:

  • Prior to being selected for this task, what experience and specific qualifications did you have regarding the redacting process of a document that necessarily relies upon both private and contested information, relating to a matter of public concern?
  • Did you receive any directions — however subtle, hinted, nonverbal, or purportedly hypothetical — from anyone, at any time, regarding what and how to redact material? From whom, when, what, and how?
  • Prior to reading the report, did you have any preconceived notions of what it contained?
  • Did you personally examine each set of evidence that led to any conclusion that you redacted in part or in whole? How did you do so?
  • Did you restrict your consideraiton of what to redact or not redact to admissible evidence?
  • Did you have any part in creating the document to be redacted in the first place, so that you understood the thought process behind it? If not, what efforts did you undertake to ensure that your redactions were consistent with that thought process?

which are just the preliminary questions before getting into any substance. (There aren't necessarily any right or wrong answers — but those questions are fundamental to understanding the process of and biases in the redaction as actually occurred.)

The real problem is that the wrong entity prepared the redacted report… through the wrong process with the wrong form of result. What should have been done: Mueller's team should have prepared a "Preliminary Public Report (Pending Completion of Ongoing Legal Process)" and released it directly. The only reason for redaction should have been "potential interference with or unfair publicity concerning either ongoing legal process or grand jury materials." Not only would this have prevented this entire aspect of this fiasco by pretermitting any appearance of — let alone the apparent reality of — partisan- and personal-interest-based distortion of the Report, but it would have produced a "clean" document that did not encourage reverse-engineering of the redactions… which would have far better protected "privacy" interests than the redactions that omit, say, Donald J. Trump, Jr.'s name while unmistakeably describing his misconduct. Indeed, a proper composition of Mueller's team would have included a lawyer and two or three experienced intelligence analysts who were doing so early on — not later than October 2018.

Then there's another matter of silence, one which will be swept under the rug but has the potential to influence matters for at least a decade and probably a generation or more. Two oligopolists in textbook publishing have announced an agreement to merge under purported (but unspecified) pressure from margins. Leave aside for the moment the antitrust implications under even a loose but accurate market definition (a back-of-the-envelope calculation indicates that the HHI for "textbooks for college-level and college-preparatory courses in the sciences and social sciences" is somewhere over 2730, when even the HHI's unstated pro-merger bias indicates that a value over 2500 is presumptively anticompetitive); they're already the largest and second-largest in those markets, contrary to the soft-pedalling of that market in the Reuters item and public statement, which collectively hide things with unstated but inappropriately broad market definitions, which should be more than enough reason to block this merger. Leave aside for the moment the partisan and political implications of these two particular publishers merging, especially in the social sciences part of that market definition, which should also be more than enough reason to block this merger. Leave aside that "consumer choice" is actually at least as important as price, and that Cengage in particular has been dedicated to restricting "consumer choice" once one understands who the consumer actually is for well over a decade… and not always by "competitive" means. Leave aside for the moment the increased ease of the Texas School Board to inappropriately censor things like "climate change" and "evolution" from all textbooks. This should also be enough reason to block this merger.

Even leaving all of that aside, this merger is still bad public policy because of what it purportedly does: It "would help both U.S.-based educational publishers to compete better as the rise of digital books and course materials pressures their businesses." That is, it would enable them to better resist market pressures and competition, especially competition from open-source materials. It would enable them to continue exceeding median accounting-nonsense-controlled peer profitability with the second-highest margins across all thirteen publishing industries (in the publishing industry with the second-lowest actual risk, as distinct from "variability of return"). That is not, by any stretch of the imagination, a merger consistent with the stated policies behind the Sherman and Clayton Acts. That's before asking "Cui bono?" which should, all by itself, block any merger or other business consolidation with anyone involving either of these entities — let alone both. But I say that with some actual knowledge of the business in question and the history of nineteenth-century trust-busting… the latter of which is a topic that at least Cengage's US History texts have elided for many, many years.