Statement by Robert H. Bork Jr. on Google Antitrust Verdict

August 5, 2024

It is ironic that on the very day the U.S. stock market melted down over concerns about the strength of the U.S. economy, the Biden-Harris Administration and DOJ Antitrust chief Jonathan Kanter landed a blow in their campaign to harass and intimidate one of America’s national champions in technology.

US District Court Judge Amit Mehta in his ruling today clearly bought into DOJ’s arguments. That is a worrisome sign that the courts – which up until now have served as a bulwark against progressive antitrust – might be susceptible to novel theories of antitrust and behavioral economics. As Geoff Manne of the International Center for Law & Economics points out, “Google search has an 80 percent share even on Windows devices, where Edge is the default browser and Bing is the default search engine.” Yet even Windows consumers defy this default and switch to Google!

Google is free to the consumer. It can be replaced in a few seconds and a few easy clicks to the search engine of a competitor. It just doesn’t make sense that Google is, somehow, throwing up hard barriers to competition.

Why, then, do customers cling to Google? Their preference is due to the widespread consumer perception that Google is the superior alternative.

There are also “network effects” to consider – the consumer wants one place to go to for search. This seems to be a natural set-point in the market, one set by consumers not government lawyers. What my father, Judge Robert H. Bork, wrote about Google with J. Gregory Sidak years ago, remains true today: “None of the purported antitrust problems that Google’s critics have raised indicates that Google is behaving anticompetitively.”

Let us hope these facts are absorbed by the judges and justices who will certainly hear Google’s appeal.