Meese on Bork’s Legacy in Antitrust Law

William & Mary’s Alan Meese explains why the late Robert Bork likely had an even greater effect on antitrust law than on the popular debate over constitutional interpretation.

Many know Bork from his classic book, The Antitrust Paradox, published in 1978. For instance, one remembrance states “The Antitrust Paradox, published in 1978, shifted the entire focus of antitrust policy toward consumer welfare,” without mentioning any previous work. . . . However, Bork’s campaign to revolutionize Antitrust started more than a decade and a half before publication of the Antitrust Paradox. In particular, while at Yale (ironically?) Bork laid the foundation for the so-called “Chicago Revolution” in antitrust law and policy with a series of articles published between 1961 and 1968. The Antitrust Paradox drew upon these arguments. In these works, Bork made two broad and fundamental contributions to antitrust analysis, one normative and one technocratic.

As a normative matter, Bork argued that the antitrust laws should have one goal and one goal alone, namely, the maximization of consumer welfare, which Bork equated with allocative efficiency and thus total economic welfare. To be sure, other scholars embraced a “total welfare” approach before Bork did. . . . However, Bork’s work differed from the work of these scholars in two ways. First, Bork expressly linked “total welfare” and “efficiency” to “consumer welfare,” whereas the Harvard School had not employed the latter term, choosing instead to focus only on “efficiency” as the appropriate goal. Second, unlike these Harvard scholars, Bork offered a legal defense of total welfare/consumer welfare as an antitrust goal. In particular, after a thorough review of the legislative history of the Sherman Act, Bork argued that the Congress that passed the Act only “intended” to ban those restraints that reduced total welfare, thus leaving those that enhanced efficient resource allocation unscathed. . . . Bork also argued that, even if Congress’s goal was unclear, courts should nonetheless pursue “consumer welfare” exclusively, because the pursuit of any other goal (e.g., a fair distribution of income) or combinations of goals (e.g. protection of small businesses and efficiency) would require courts to make value choices and trade-offs that were properly left to the legislature. . . . Correct or not, Bork’s claim was highly influential. Indeed, in Reiter v. Sonotone, 442 U.S. 330, 343 (1979) the Supreme Court announced that Congress intended the Sherman Act as a “consumer welfare prescription,” citing the Antitrust Paradox for this proposition.

As a technocratic matter, Bork proposed the sort of radical reform in antitrust doctrine necessary to make “consumer welfare” as he defined it the exclusive priority of antitrust law. Perhaps most famously, Bork rehabilitated the distinction, made famous by William Howard Taft, between “naked” and “ancillary” restraints. . . . Like Taft, Bork argued that naked restraints should be unlawful per se, while ancillary restraints should be analyzed under a forgiving rule of reason. Moreover, Bork also contended that early Sherman Act case law followed Taft’s template, even though courts sometimes used different formulations when articulating antitrust doctrine. In particular, Bork concluded that Taft’s formulation anticipated the “Rule of Reason,” articulated in Standard Oil v. United States, . . . which banned only those restraints that “unduly restrain trade” by producing “monopoly or its consequences.” . . . Moreover, employing the latest economic theory of the time (and theory that is still adequate for such purposes today), Bork explained why this distinction between “naked” and “ancillary” restraints would produce results that would maximize “consumer welfare” as he defined it.

(citations omitted)

As Thom Lambert adds, the Supreme Court gradually adopted the bulk of Bork’s prescriptions in antitrust law, beginning with its 1977 decision in Continental TV v. GTE Sylvania. As a consequence, Lambert notes, it’s “difficult to overstate” Bork’s impact on the evolution of antitrust law from the 1970s to today.