The Worst Opinion in Living Memory: AT&T/Time Warner and America’s Broken Merger Law

Abstract

The worst of the title is not the appellate affirmance in United States v. AT&T, which put the final end to the government's challenge to the merger of AT&T and Time Warner. It was the trial court's fundamental ruling at the close of the bench trial, rejecting the government's claims. But the point is definitely not to criticize the bombastic, maverick judge who wrote it. His role really is incidental. It is that an opinion this bad, and affirmance of it, proves how deeply broken our merger law is. It was among the more remarkable demonstrations of anti-govenrment bias in living memory, and its 172 pages of fact-finding and reasoning were relentlessly flawed, illogical, and wrong. But it was more than good enough as far as our law is concerned. Nearly the entirety of it boils down to the personal impulses of one judge, who operates under a radically lopsided burden of proof and an appellate standard of near unreviewability.