Tribute to Robert H. Bork.

• Author: Graglia, Lino A.
• Position: Special Issue Commemorating the Life and Works of Judge Robert H. Bork - Testimonial

Robert Bork was a giant in American law, arguably the most influential and significant jurisprudential figure in the last half of the twentieth century. The two most important areas of law in terms of national social policy are undoubtedly constitutional law and antitrust, and Bork was in some ways the central figure in each.

After graduating from the University of Chicago Law School in 1953, a period of service in the U.S. Marine Corps, and a highly successful stint in private practice, Bork began his teaching career at Yale Law School in 1962 as a professor of antitrust law. Under the influence of the "Chicago School" of economics, which strongly favors free markets and is skeptical of government economic regulation, Bork undertook to simplify and make sense of antitrust law by arguing that it should be put on a purely economic basis.

Antitrust law is to the American economic system what constitutional law is to the American political system: a matter of fundamental importance. From its beginning with the Sherman Antitrust Act in 1890, there was uncertainty and dispute as to its purpose. Was it to serve political and social ends in addition to or instead of economic ends, and more basically, was its purpose to protect free market competition or, on the contrary, protect small businesses from the rigors of competition? In his 1978 book, The Antitrust Paradox: A Policy at War with Itself, (1) Bork argued that antitrust law made sense and was socially beneficial only if seen as simply an anti-monopoly, purely economic measure; the sole purpose of which was to protect free market competition in the interest of serving consumer welfare.

The book was so clearly and powerfully reasoned and well written as to be nearly irrefutable. Bork was able to show conclusively that many business practices such as vertical integration, resale price maintenance, tying arrangements, and exclusive dealing, formerly condemned as anticompetitive were often, if not always, actually pro-competitive. The book soon came to be seen as authoritative by courts including the United States Supreme Court. Together with similar and complementary work by Professor and then Judge Richard Posner and the general growth of the "law and economics" movement, the result was an enormous shrinkage in the scope and coverage of antitrust law and the removal of legal impediments to the efficient functioning of free markets. It would be difficult to find another work of scholarship that...