Having worked at this profession for many years, it is interesting to see topics and issues rise and fall with the times. I have written before in this column about change (see “The More Things Change … ,” Business Law Update, Spring 2018). Once again, plus ça change (plus c’est la même chose), and there’s nothing new under the sun.
As I was beginning my practice of law (I suppose someday I will perfect it), the Reagan era was coming to an end. In that era and even before, the federal government had taken strong actions to energize the economy and business, weakening unions, relaxing antitrust rules and deregulating core industries such as transportation, telecommunications, banking and finance, among others. In fact, the byword then was that antitrust was “dead” as a viable area of law practice.
In its boundless and adaptable enthusiasm, business responded. There were of course many other influences at work, not least the explosive innovation and growth of technologies and new business models. Some would argue that the change in government policy, most notably the relaxation of restrictions on banking, finance and telecommunications, opened the door for those world-changing developments, giving rise to powerful businesses in technology, finance and other industries, and corresponding personal fortunes.
Fast forward to 2023. The Federal Trade Commission is cracking down on what some would consider to be technology industry monopolies. Unions are in the ascendant. Restrictive covenants in employment, long under attack at the state level in important regions of the country, now may be on the chopping block at the federal level. The pendulum certainly seems to have swung. Reports of the demise of antitrust law seem to have been somewhat exaggerated.
We have seen this before. Notably in his book Outliers, which I highly recommend, author Malcolm Gladwell mentions a list of the 75 wealthiest people in history, including kings, emperors and pharaohs, among bankers and other businesspeople. The list includes 14 Americans who were active in business in the 1860s and 1870s as leaders in industry and finance. These gifted individuals had the good fortune to live in a time of tremendous economic expansion and relatively relaxed regulation. Students of history may trace the developments in government regulations such as the antitrust laws beginning in the late 19th and early 20th centuries, the Pure Food and Drug Act of 1906 and the financial services regulations of the 1930s and later, among many others, to this earlier legacy of unbridled business enthusiasm.
Such a list today would include some of the titans of technology who are now in the government’s crosshairs. So, are we poised for a similar swing of the pendulum toward stricter government regulation of business, in response to the last 30 or 40 years of economic development, as suggested by the current trend? It remains to be seen whether the political consensus will be there to sustain it.
Either way, as noted in my earlier column, the one constant in life and business is change itself. We as your lawyers are here to help you stay on top of the moving landscape of law and regulation. I hope you will find our latest edition of the Business Law Update to be enjoyable and useful. Feel free to contact me, or any of us at Thompson Hine, with your comments, questions and suggestions for future topics you would like us to cover in these pages.
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