Functional Availability in Housing?

I saw an ad in the New York Times Sunday Magazine this morning that reminded me of the phrase "functional availability."  A long time ago, I was an antitrust lawyer (among other things), and I had to give advice from time to time on that truly misbegotten and incomprehensible piece of anti-competitive legislation, the Robinson-Patman Act (somebody let me know if it's been repealed yet!).   In relevant part, Section 2(a) of the Robinson-Patman Act forbids  a seller from discriminating in price between two or more competing buyers in the sale of commodities of like grade and quality, where the effect of the discrimination "may be substantially" to "lessen competition...in any line of commerce."  Sellers give volume discounts all the time, and are often hard-pressed to explain why, literally, there is no prima facie violation of the law.  One of my favorite defense was the "functional availability" defense, which went something like this.  It's okay to give a volume discount to Wal-Mart and not to Mom & Pop if the discount you give to Wal-Mart is "functionally available" to Mom & Pop.  That means that anybody who is prepared to buy a bazillion of whatever has the discount functionally available to them.  (I'm being a little facetious here, because, of course, it's a fact issue whether the discount is really functionally available if only two or three buyers in the world can avail themselves of it.)

So I'm flipping my way through the magazine to the crossword, past the ads for multi-million dollar apartments on the Upper East Side, and I see a couple pages (77 and 78) with a dozen brightly colored photographs of humongous mansions in New England, New York, Florida, and Costa Rica.  The pages are titled "Luxury Property Showcase" and, while there are a couple starter homes (Connecticut and New Hampshire) in the $700s and $800s, most of them exceed several million dollars, including the Vero Beach property that was listed at $40 million, but is now priced to sell fast at $22,995,000.

What got me laughing was the subtitle on each of the two pages:  "Equal Housing Opportunity."  No doubt, and it's functionally available.

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[Bernie Burk]

Or as Anatole France put it, "The law in its majesty makes no distinction between rich and poor; both are forbidden to sleep under the bridges of Paris."