Robert H. Bork – The Antitrust Paradox: A Policy at War with Itself

Robert H. Bork – The Antitrust Paradox: A Policy at War with Itself

Probably the most influential book ever written on antitrust policy, though it has its flaws. I analyze several of its arguments in an upcoming paper; I’ll try to remember to update this post with a link when the paper is out.

From its Progressive Era beginnings, antitrust law was dominated by lawyers who disdained economics, and it showed in the quality of their policies and court decisions. During the Depression and the New Deal, President Roosevelt mostly abandoned antitrust law in favor of government-approved, or even government-managed cartels, in a similar disregard of economics. This model was mostly abandoned after World War II, when regulators resumed antitrust enforcement. Prosecutions reached record levels by the late 1950s and early 1960s.

Around that time, a new law and economics movement was underway, especially at the University of Chicago. Bork was one of many scholars who were part of it, along with Aaron Director, George Stigler, Ronald Coase, Richard Posner, and many others. They proposed, instead of attacking the Brandeisian “Curse of Bigness,” moving to a consumer welfare standard. Under this thinking, big isn’t automatically bad. Antitrust measures should only be taken if it can be proven that a company is causing consumer harm. Bork wasn’t the first to make this argument, but he was the most influential, and The Antitrust Paradox remains the most widely cited book on the subject, by friend and foe alike (this writer is somewhere in between).

Bork and other consumer welfare standard advocates, while an improvement over Brandeisian populism, don’t get everything right, at least in my view. Better to get rid of bad policies altogether than simply use them less frequently, as Bork favors. But his compendium of case law, economic reasoning, and legal history is immensely useful regardless of one’s priors. While not the breeziest of reads, Bork does occasionally show some flashes of wit, such as when he compares the Robinson-Patman Act’s attempt to control prices to a baseball player who might be a lousy hitter, but balances it out by also being a poor defender.

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