Afterword: lorain journal and the antitrust legacy of Robert bork

• Author: Leon B. Greenfield
• Position: Member of the District of Columbia Bar and co-Symposium Editor for this issue of The Antitrust Law Journal
• Pages: 1047-1072

AFTERWORD: LORAIN JOURNAL AND

THE ANTITRUST LEGACY OF ROBERT BORK

L

EON

B. G

REENFIELD

*

The divergent voices in this symposium can agree on one thing: Robert

Bork profoundly influenced the development of modern antitrust law. En-

forcement against exclusionary conduct has been ground zero for the lively

debate about the normative impact of his influence.

1

One way to evaluate the

practical reach of Bork’s antitrust legacy is to examine the cases challenging

unilateral exclusionary conduct that the antitrust enforcement agencies have

brought in recent years and how closely they conform to Bork’s vision.

2

This essay does this through the lens of one of the few unilateral exclusion

cases about which The Antitrust Paradox had anything good to say—the Su-

preme Court’s 1951 Lorain Journal decision. In Part I, I first describe the

significance of Lorain Journal and why Bork singled it out as conforming to

his views about the proper way to analyze alleged unilateral exclusionary con-

duct. Then, focusing on Bork’s criticism of other exclusive dealing cases, I

explain that—notwithstanding his support for Lorain Journal—Bork took a

* Member of the District of Columbia Bar and co-Symposium Editor for this issue of The

Antitrust Law Journal. The author would like to thank Andrew Gavil, Rajesh James, Jim Lowe,

Doug Melamed, Miriam Nemetz, Perry Lange, Hartmut Schneider, and Danny Sokol for valua-

ble comments on earlier versions of this essay, and Randy Weinsten for excellent research

assistance.

1

Bork’s own view was that then-current enforcement against exclusionary conduct “ha[d]

proved more harmful to the integrity and rationality of antitrust” than enforcement against collu-

sion. R

OBERT

H. B

ORK

, T

HE

A

NTITRUST

P

ARADOX

: A P

OLICY AT

W

AR WITH

I

TSELF

136 (1978).

He recognized that his recommendations regarding enforcement against exclusionary conduct

had more potential to change existing law than did his recommendations regarding collusive

conduct. Id. at 160.

2

I use the term “unilateral exclusionary conduct” or “unilateral exclusion” somewhat loosely

to refer to cases where a firm at one level of the supply chain engages in exclusion without

colluding with horizontal rivals. This term does not encompass cases where two or more suppli-

ers at the same level collude to exclude rivals, but can encompass situations involving vertical

agreements among participants at different levels of the supply chain. Whether a vertical agree-

ment—rather than a strictly unilateral policy—is involved bears on the particular antitrust statute

that can be used to challenge the conduct, but is often unimportant to competitive effects

analysis.

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NTITRUST

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AW

J

OURNAL

[Vol. 79

narrow view of the role of antitrust enforcement against unilateral exclusion.

This reflected Bork’s heavy presumption against intervention in unilateral ex-

clusion cases generally, but particularly where intervention is not grounded in

the type of evidence-based competitive effects analysis that he admired in

Lorain Journal.

In Part II, I briefly attempt to put Bork’s influence in the context of others’

contributions. Tracing Bork’s precise influence on current agency case selec-

tion is an uncertain exercise well beyond the scope of this essay. Before ana-

lyzing how closely the agencies’ recent unilateral exclusion cases conform to

Bork’s worldview, however, it is important to recognize that the line of causa-

tion is not a straight one, and that recent agency case selection reflects many

different influences.

Part III begins by examining the spirited ongoing conceptual debate be-

tween those advocating a restrictive approach to unilateral exclusion enforce-

ment and those supporting broader intervention. I argue that the scope of the

debate has narrowed substantially since Bork started writing about antitrust.

Next, as a way to assess empirically the extent to which actual agency en-

forcement has conformed to Bork’s vision, I present a typology of the unilat-

eral exclusion cases that the Federal Trade Commission and Department of

Justice have brought in the 16 years beginning when the DOJ sued Microsoft

in 1998. This shows that about two-thirds of the unilateral exclusion cases

brought by the agencies bear a familial relationship to Lorain Journal in that

the agencies alleged that exclusive dealing by a dominant firm injured the

competitive process (not just the firm’s rivals) and did not recognize any sig-

nificant efficiency justifications. Moreover, most of the post-Microsoft agency

unilateral exclusion cases that do not fit the Lorain Journal paradigm in-

volved allegations of abuse of government process—an exception to Bork’s

general disdain for unilateral exclusion enforcement—or arguably similar

conduct. Finally, I assess what the agencies’ unilateral exclusion case selec-

tion may tell us both about Bork’s continuing influence and its limits.

Bork’s antitrust work continues, even after his death, to be a lightning rod

for conceptual disputes. But when it comes to the type of unilateral exclusion

cases the agencies have actually pursued, there has been significant consen-

sus, largely along principles of which Bork approved. And Lorain Journal

continues to explain a good portion of the unilateral exclusion enforcement

world. The agencies have not consistently hewed to some of Bork’s stronger

views, however, such as his heavy presumption in favor of efficiency explana-

tions for and lack of competitive harm from vertical restraints and his abiding

belief in entry as a cure-all for most competitive concerns.