The tempting of antitrust: Robert Bork and the goals of antitrust policy

• Author: Daniel A. Crane
• Position: Associate Dean, Faculty and Research, and Frederick Paul Furth, Sr. Professor of Law, University of Michigan
• Pages: 835-853

THE TEMPTING OF ANTITRUST: ROBERT BORK AND

THE GOALS OF ANTITRUST POLICY

D

ANIEL

A. C

RANE

*

Of all Robert Bork’s many important contributions to antitrust law, none

was more significant than his identification of economic efficiency, disguised

as consumer welfare, as the sole normative objective of U.S. antitrust law.

1

The Supreme Court relied primarily on Bork’s argument that Congress in-

tended the Sherman Act to advance consumer welfare in making its landmark

statement in Reiter v. Sonotone that “Congress designed the Sherman Act as a

‘consumer welfare prescription.’”

2

This singular normative vision proved

foundational to the reorientation of antitrust law away from an interventionist,

populist, Brandeisian, and vaguely Jeffersonian conception of antitrust law as

a constraint on large-scale business power and toward a conception of anti-

trust law as a mild constraint on a relatively small set of practices that pose a

threat to allocative efficiency.

Bork’s existential claim was powerful for many reasons. It arrived in the

midst of the deregulatory impulses of the late 1970s and on the cusp of the

Reagan Revolution. It pitted the interests of consumers against those of ineffi-

cient producers during a period of dramatic inflation and pro-consumer senti-

ment. It was grounded in assertions about the will of Congress and the

responsibility of the courts. Perhaps most potently, it reduced antitrust law to

an elegant and precise formula that ostensibly could be applied with consis-

tency, accountability, and scientific rigor.

Despite, or because of his resounding victory in changing the terms of en-

gagement in the courts and antitrust agencies, Bork has faced fierce criticisms

* Associate Dean, Faculty and Research, and Frederick Paul Furth, Sr. Professor of Law,

University of Michigan.

1

R

OBERT

H. B

ORK

, T

HE

A

NTITRUST

P

ARADOX

: A P

OLICY AT

W

AR WITH

I

TSELF

(1978). Al-

though Bork lifted much of The Antitrust Paradox from his earlier work published in law re-

views and Fortune magazine (see id., Acknowledgments), The Antitrust Paradox became the

canonical repository for Bork’s vision of antitrust law. Hence, throughout this article, I shall cite

primarily to The Antitrust Paradox.

2

Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979) (citing B

ORK

,supra note 1, at 66).

835

836

A

NTITRUST

L

AW

J

OURNAL

[Vol. 79

over the years. Among the leading criticisms are: (1) Bork mischaracterized

the Sherman Act’s legislative history to produce a result he favored ideologi-

cally;

3

(2) with a disingenuous sleight of hand, Bork shifted from consumer

welfare to total welfare without changing labels, hence equating antitrust pol-

icy with efficiency while continuing to package it in a consumer welfare pill

that courts would easily swallow;

4

and (3) Bork’s economic efficiency ac-

count of the antitrust laws is impoverished and crowds out other legitimate

objectives for the antitrust laws.

My goal in this essay is to offer a modest defense of Bork against his sharp-

est critics on the question of antitrust’s goals. Modest, because Bork set him-

self up for some of the criticisms and some of them are quite fair. But the

criticisms have tended to inflate small points and crowd out larger ones that

deserve much more careful attention.

The focus on Bork’s claims about the Sherman Act’s legislative history

creates the misapprehension that Bork’s arguments about antitrust’s goals

were principally founded in arguments about subjective congressional inten-

tion, as revealed in the congressional record. To the contrary, the thrust of

Bork’s argument was predicated on a suite of interpretive tools, including

efforts to discern meaning from the statutory texts, a “whole code” insistence

on harmonizing the corpus of antitrust statutes to render them internally con-

sistent and logically sound, a species of critical common law drawing on the

most persuasive statements of the most illustrious judicial expositors, and ar-

guments grounded in judicial restraint. In this approach, Bork’s work on anti-

trust law mirrored his broader role as a controversial jurist and constitutional

law scholar.

3

The leading critic of Bork’s interpretation of the Sherman Act’s legislative history is Robert

Lande. See Robert H. Lande, A Traditional and Textualist Analysis of the Goals of Antitrust:

Efficiency, Preventing Theft from Consumers, and Consumer Choice, 81 F

ORDHAM

L. R

EV

.

2349, 2354 (2013) [hereinafter Lande, A Traditional Textualist Analysis]; Robert H. Lande,

Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpreta-

tion Challenged, 34 H

ASTINGS

L.J. 65, 69–70 (1982) [hereinafter Lande, Wealth Transfers]; see

also Daniel R. Ernst, The New Antitrust History, 35 N.Y.L. S

CH

. L. R

EV

. 879, 882 (1990); John

J. Flynn, The Reagan Administration’s Antitrust Policy, “Original Intent” and the Legislative

History of the Sherman Act, 33 A

NTITRUST

B

ULL

. 259, 265–90 (1988); John J. Flynn & James F.

Ponsoldt, Legal Reasoning and the Jurisprudence of Vertical Restraints: The Limitations of Neo-

classical Economic Analysis in the Resolution of Antitrust Disputes, 62 N.Y.U. L. R

EV

. 1125,

1136 (1987); Eleanor M. Fox, The Modernization of Antitrust: A New Equilibrium, 66 C

ORNELL

L. R

EV

. 1140, 1142 (1981); Herbert Hovenkamp, Antitrust’s Protected Classes, 88 M

ICH

. L.

R

EV

. 1, 22 (1989); Maurice E. Stucke, Reconsidering Antitrust’s Goals, 53 B.C. L. R

EV

. 551,

563–64 (2012); Maurice E. Stucke, Does the Rule of Reason Violate the Rule of Law?, 42 U.C.

D

AVIS

L. R

EV

. 1375, 1435 n.259 (2009).

4

Robert A. Skitol, The Shifting Sands of Antitrust Policy: Where It Has Been, Where It Is

Now, Where It Will Be in Its Third Century, 9 C

ORNELL

J.L. & P

UB

. P

OL

’

Y

239, 249 (1999).