The Antitrust Paradox: A Policy at War with Itself.

• Author: Priest, George L.
• Position: Book review

It is an honor to be invited to write about Judge Robert H. Bork's contributions to antitrust law. It is also a pleasure to join in paying tribute to Judge Bork's work. When I joined the faculty at Yale, Judge Bork was a colleague, though I did not get to know him then. But when Judge Bork left Yale, I inherited his antitrust course. At Yale Law School at least (and only so far as the classroom), I am Judge Bork's successor.

Despite all of the horrible things that Judge Bork continues to say about the Yale Law School (he has recently added the Yale Club to the list), he remains an important and dominant presence there today. Intellectually, I would like to think that my antitrust class closely resembles the course that he taught or would be teaching if he had stayed. But Judge Bork has a continuing presence in a different sense. Antitrust remains a popular course, drawing 60 to 80 students per year, which is a very large class by Yale Law School standards. Indeed, the Law School possesses only two or three classrooms that can accommodate that number. In the room in which I typically teach the class, on the back wall directly facing the instructor, and looking over the shoulders of every student, is a large portrait of Judge Bork. It is an excellent portrait, though perhaps emphasizing Judge Bork's sternness and seriousness more than his wonderful sense of humor. The presence of the portrait, however, has two effects on the class. First, it keeps the instructor on track. If I were even to entertain the suggestion that something in an antitrust opinion, say, of Justice William O. Douglas, made any sense, a quick glance at the portrait would immediately disabuse me of the thought. The second effect is on the students. Many students, at least at the beginning of the course, will present arguments based on concepts of the existence of barriers to entry, of the ability of a firm with market power to leverage that power from one market to another, or of harms related to foreclosure. To deal with arguments of this nature, all the instructor needs to do is to ask students making such contentions to look over their shoulders at Judge Bork's portrait. What, in any other light, is a serious portrait becomes a scowling portrait, and has a wonderful effect on performance and understanding in the class. Judge Bork's influence on the understanding of antitrust law will be sustained at Yale Law School for many generations into the future.

This brief Essay seeks to place Judge Bork's important book, The Antitrust Paradox, (1) into the context of the Chicago School's contribution to the modern direction of antitrust law. Virtually all would agree that the Supreme Court, in its change of direction of antitrust law beginning in the late 1970s, drew principally from Judge Bork's book both for guidance and support of its new consumer welfare basis for antitrust doctrine. (2) Many outside the Chicago School, however, and some within, have regarded Judge Bork's contribution in the book as chiefly derivative of ideas of Aaron Director that had been developed by Director's students and research associates, such as Lester Telser, John McGee, Judge Bork, and others. (3) Judge Bork has not dissented from the point: in The Antitrust Paradox, he generously attributes his learning from Director and from the associates that Director brought to Chicago. (4) But Judge Bork's contribution to the success of the Chicago approach should not be understated.

To view Judge Bork's work as derivative seriously undervalues his contribution to the development of modern antitrust law. To be sure, Aaron Director had many important and seminal ideas, in particular with respect to the economic effects of vertical practices. (5) Without question, The Antitrust Paradox builds on those ideas. As I shall explain, however, the book extends far beyond those basic ideas by translating them persuasively for members of a Court neither trained in nor sympathetic to economic analysis and, furthermore, by convincing the Court that consumer welfare is the only coherent standard on which to base modern antitrust law. (6)

That portion of Chicago School thought that addresses industrial organization derives from a single basic principle: Markets in the real world are generally highly competitive, constrained only by real costs of operation. It...