Valparaiso University Law Review

Volume 13
Number 2
Winter 1979

Robert Bork, The Antitrust Paradox: A Policy at

War with Itself
Paul H. Brietzke

Recommended Citation
Paul H. Brietzke, Robert Bork, The Antitrust Paradox: A Policy at War with Itself, 13 Val. U. L. Rev. 403 (1979).
Available at: http://scholar.valpo.edu/vulr/vol13/iss2/7

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Brietzke: Robert Bork, The Antitrust Paradox: A Policy at War with Itself

BOOK REVIEW
The Antitrust Paradox: A Policy at War with Itself, by Robert H.
Bork. New York: Basic Books, 1978. Pp. 425, $18.00.
Except when responding to advertisements and sale promotions, the people are stupid; their indolent and fickle representatives
in Congress are no better; the courts are unable to recognize the
narrow limitations on their competence or to resist the temptations
to power provided by the antitrust statutes; FTC and Antitrust
Division bureaucrats are guilty of an untrammeled pursuit of the
pet theories of the moment at the expense of consumer welfare;
private attorneys are frustrated by a fragmentation of issues in
complex antitrust litigation; and legal academics, members of an "intellectual class" seeking to augment its power and prestige at the
expense of the "business class," bear a major share of the blame for
the decadence of contemporary antitrust law.' Strong stuff, and Professor Bork seeks to rescue the beleagured and bewildered by
deploying insights he has gleaned from neoclassical microeconomics,
as it is understood by the Chicago School. The book is uneven, bearing the stamp of having been written and revised over a period of
ten years. The content of crucial premises shifts subtly (and
sometimes not so subtly) in the course of exposition. While it is not
designed as a hornbook and cannot be used as such, given the
number of axes being ground, many of Bork's case commentaries are
original and interesting. In sum, however, they fail to meet the
burden of proof through logical argumentation incurred by anyone
who attacks most of the important Supreme Court decisions in a
particular area.
In outline, Bork contends that "the only legitimate goal of
antitrust is the maximization of consumer welfare." 2 This concept
"provides a common denominator by which gains in destruction of
monopoly power can be estimated against loss in efficiency, and
economic theory provides the means of assessing the probable sizes
of the gains and losses."' Most judges and lawyers ignore this mode
1. R. BORK, THE ANTITRUST PARADOX 16, 49, 84, 86, 318, 410, 413, 416, 423-24
(1978) [hereinafter cited as R. BORK].
2. Id. at 7.
3. Id.at 79.

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of analysis, giving rise to the Antitrust Paradox: "great popularity

and vigorous enforcement coupled with internal contradiction and intellectual decadence."' At one stage, Bork minimizes the seriousness
of the problem, which "flows from a small number of intellectual
errors that can be corrected."5 We soon learn, however, that the
problem is not so simple; the dark forces of "an anticapitalist and
authoritarian ethos"' are at work. He finds that:
the trends observable in antitrust ... are four: (1) a movement away from political processes toward political choice
by courts; (2) a movement away from the ideal of free
markets toward the ideal of regulated markets; (3) a
tendency to be concerned with group welfare rather than
general welfare; and (4) a movement away from the ideal
of liberty and reward according to merit toward an ideal
of equality of outcome and reward according to status.'
This progress of the idea and Ideal in history is very Germanic
and sounds vaguely Hegelian. The outcome is certainly not Hegel's
progressive realization of freedom, however. Antitrust is:
a microcosm in which larger movements of our society are
reflected. . . . [Blattles fought and won or lost in [the
antitrust arenal . . . are likely to affect the outcome of
parallel struggles in others.
The struggle between economic freedom and regulation also reflects and reacts upon the tension in our society
between the ideals of liberty and equality
Bork goes far beyond his apparent sphere of competence in these
conclusions, where inarticulate political and philosophical premises
are legion. His "economic freedom" clearly means much more than
an absence of regulation: the fact is that "Congress ... continues to
transform us into a highly regulated welfare state."9 This kind of
comment would send a Harold Laski or a Richard Titmuss reeling in
his grave, and Bork's ignorance of the precepts of social democracy
is evident. In particular, he fails to take into account notions of
4. Id at 408.
5.
6.
7.

Id at 409.
Id at 419.
Id at 418-19.

8.

Id at 10.

9.

Id at 412. See note 31, infra.

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Brietzke: Robert Bork, The Antitrust Paradox: A Policy at War with Itself
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ANTITRUST PARADOX
liberty and equality other than his own. You will thus love the book
if Bork's prejudices confirm your own. If they don't, you-like this
reviewer-will undoubtedly remain unmoved by a rather slipshod
analysis.
Professor Bork ignores the fact that the economy of the United
States operates under far fewer regulations than the economies of
most industrialized states. Since the economic performance of
several of these states has far outstripped ours in terms of growth,
Bork's concept of efficiency and the general welfare (the mere
presence or absence of various types of regulations) cannot be the
decisive variable governing economic performance. It is a truism
that business regulations-including antitrust laws in the U.S.-accurately reflect the degree of trust a government reposes in the
nation's corporations. The economic performance of American corporations in recent years offers slender justification for expanding
upon an already abundant trust;0 certainly the political performance
of our corporations, particularly that of multinationals in the international arena, argues for a more extensive regulation. Given that
Professor Bork was one of Nixon's Solicitors General (on this topic I
shall say no more), he should, at least by now, be aware of the
political abuses which stem from the exercise of a concentrated and
undifferentiated mass of wealth and power by managers of large
corporations. Bork does discuss a "predation through governmental
processes" - sham litigation, sharp lobbying practices, influencing
local zoning board decisions, etc."-but he ignores the corruption
and diffuse corporate influence over high-level governmental decisions (the so-called clout) that make genuinely participatory
democracy at home impossible and constitute an interference in our
foreign relations and in the internal affairs of other states.
This kind of authoritarianism is probably more of a clear and
present danger than the one Bork worries about, but his narrow
approach to the subject matter makes the neglect of corporate
political abuses inevitable: "It is only the fact that the simple ideas
of economics are powerful and entirely adequate to this field that
10. The law's approach has changed, but the basic policy bias has not. The
field is still open to private forms of ingenuity. There has been no sustained policy of
fragmenting markets through law, and law did little to hinder the initial growth of
large concentrations of economic power where overt collusion was absent. J. HURST,
LAW AND SOCIAL ORDER IN THE UNITED STATES

230, 264 (1977. See id. at 80. Private

business can prosper under rules and institutions which differ considerably, "at least
from a juridical point of view ....
L. FRIEDMAN, THE LEGAL SYSTEM 208 (1975).
11. R. BORK, supra note 1, at 347-64.

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makes it conceivable for the law to frame and implement useful

policy."'" He adds that:
The need of the law generally is for the systematic
development of normative models of judicial behavior,
models which, while they cannot attain, will at least
distantly approach the rigor of the descriptive models of
basic economic theory. Until we have such models,
criticism of the courts for having the wrong goals will
generally be empty, the mere assertion of a different set
of personal preferences."
This proves a self-defeating position for, as the basis for Bork's
"models" is not developed in any rigorous fashion, we are left with
his personal preferences. Once again, the viewpoint adopted is extremely Germanic, a 1920's call for a "science" of law and economics
to "discipline" the exercise of a judicial "free choice." It is also
manifestly inconsistent with evaluations of economics offered by
Bork himself. Clearly, economics contains more than the "simple
ideas" that would serve to simplify antitrust laws. Bork correctly
finds that economics is unable to quantify or to measure directly the
components of cost curves and efficiency or the effects of restrictions on output-cardinal concerns in antitrust analysis. Models only
predict "the tendencies of business behavior" and leave out too
many factors which are relevant to formulating concrete policy
prescriptions. Oligopoly theory, essential to an understanding of concentrated industries, is "little more than a guess," "less an intellectual construct than a frame of mind, a mood, a dogma that is ripe for
thoroughgoing reform.""
How, then, is economics to serve as the judicial model for a
new legal science? The main flaw in Bork's reasoning here is his
adoption of two false dichotomies. The first is: "To abandon
economic theory is to abandon the possibility of a rational antitrust
law."' 5 Surely the questions are when and why a problematic
economics must be abandoned to secure legal and administrative rationality and other social and political goals. Secondly, the relevant

12. Id at 90.
13. Id. at 72.
14. Id. at 92, 96, 117, 191, 392. Joan Robinson adds that economists often treat
circular statements as though they had a factual content and dress up imprecise ideas
in the language of infinitesimal calculus. J. ROBINSON, FREEDOM AND NECESSITY 119-20
(1970).
15. R. BORE, supra note 1, at 117.

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policy choice is not, as Bork suggests, between the polar opposites

of price systems and central regulation, but between various combinations of them. While it is undoubtedly true that judges and
lawyers have paid too little attention to economic analysis (particularly in the earliest of antitrust cases, many of which are nevertheless preferred by Bork), a judicial reluctance to give weight to
the economists' "instant explanations for all occasions" proferred by
parties to an antitrust suit is also understandable. There is no a
priori reason why economic explanations should be preferred to
legal ones, ' especially as lawyers dominate antitrust policymaking
and many economists abjure action in favor of an austere theoretical
elegance. While law cannot thus be drowned in economics as Bork
would wish, a greater measure of cooperation between disciplines
would undoubtedly increase the rationality of antitrust policies. The
barriers to cooperation are more formidable than Bork would have
us believe, however. For example, Thurmond Arnold notes that:
"Social sin in the economic sciences consists of imposing rules to
16. See R. UNGER, LAW IN MODERN SOCIETY 11 (1976):
Rationalist social science [including both economics and analytical
positivism in law] aspires to become a system of propositions whose interdependencies are governed by precise logical notions of entailment,
consistency and contradiction.
The whole body of thought, save for the perplexing but inevitable introduction of empirical assumptions, disclaims any pretense to describe
what actually happens in social life. It moves at the level of the
hypothetical: its conclusions are descriptively true only to the extent its
premises hold. By tightening or relaxing the strictness of the premises,
by making them more or less complex and therefore more or less faithful
to the social reality we want to apprehend, we are able to control the
balance between simplicity of explanation and descriptive fidelity.
A number of observations flow from these assertions. Since neither of the competing
positivisms of law and economics addresses itself wholly to the province of antitrust
administration- really a form of social reality-they are inadequate to the task of
policy formulation and implementation. Law is, if anything, more realistic in this
regard because it is more often formulated in response to real life situations. Its
realism should not be exaggerated, however; for example, Bork's attempt to predict
the economic effect of antitrust laws on the basis of appellate cases is like basing
botany solely on an examination of cut flowers purchased from the florist. If law and
economics are inadequate to the task, there is no reason to ignore insights from such
disciplines as psychology (e.g., the motivations of businessmen), sociology and political
science. As Unger suggests, however, the manipulation of premises in rationalist social
science must also amount to manipulation of results, once chains of causation are
assumed. For this reason, the most significant missing link in contemporary antitrust
analysis is the philosopher's value inquiry. For example, whose interests are and are
not embodied in the law and analyses of it, and why? Absent such studies, judges are
justified in treating economists as though they are saying "I prefer" rather than "I
know," and in giving weight to their own preferences,

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sort out complicated situations. Social sin in the legal sciences consists in failing to work out logicially a complicated set of rules." 7
The defects inherent in Bork's economic logic become more evident when we take a closer look at his seemingly monolithic antitrust goal of maximizing consumer welfare. According to Bork, this
is the sole aim embodied in the Sherman Act. Seeking to free us
from "a falsely imagined past,""i he ignores the difficulties inherent
in reducing congressional intent in the antitrust area to so simple a
proposition. 9 The Supreme Court has occasionally utilized an approach similar to Bork's, finding Congress' major goal to have been
the maintenance of competition." The Justices' arguments are more
persuasive than Bork's, however, and his neglect of the maintenance
of competition gives rise to a badly distorted perspective.2 For
example, he suggests that competition "may be read as ...a term of
art . . .designating any state of affairs in which consumer welfare
cannot be increased . . .through judicial decree."22 This is an unduly
narrow and legalistic fusion of two complex concepts, particularly in
light of the high levels of incompetence Bork finds reflected in
judicial decrees.
Other definitions are piled on top of these rather indigestible
bits of information. Consumer welfare is found to be wholly
synonymous with efficiency and "is merely another term for the

17. Arnold, The Symbols of Government, in READINGS IN JURISPRUDENCE AND

LEGAL PHILOSOPHY 836, 837 (M. & F. Cohen eds. 1951). See M. MASSEL. COMPETITION
AND MONOPOLY 164-94 (1964).
18. R. BORK, supra note 1, at 15, 35. Bork's rendition is, presumably, a truly
"imagined past."

19. See, e.g., H.

THORELLI, THE FEDERAL ANTITRUST POLICY

180-85, 226-69

(1955); Letwin, Congress and the Sherman Antitrust Law, 23 U. CHI. L. REV. 221
(1956). There is nothing in the record which unequivocally contradicts Bork's position,
nor is there much support for his tenuous analysis.
20. E.g., United States v. Philadelphia National Bank, 374 U.S. 321, 338 (1963);
Northern Pac. R.R. v. United States, 356 U.S. 1,4 (1958); Standard Oil Co. of N.J. v.
United States, 221 U.S. 1 (1911).
21. See, e.g., note 24, infra.
22. R. BORK, supra note 1, at 61. This contention only makes sense if it is
treated as a gross oversimplification of the economics theory of workable competition,

particularly Jesse Markham's ideas. See F. SCHERER, INDUSTRIAL MARKET STRUCTURE

AND ECONOMIC PERFORMANCE 36-38 (1970). While Bork examines several definitions, he
adopts the one quoted in the text as his favorite. It is then broadened through an unsatisfactory attempt at a layman's definition: "When we talk of the desirability of competition we ordinarily have in mind such things as low prices, innovation, choice among
differing products-all things we think of as being good for consumers." R. BORK,
supra note 1, at 61.

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ANTITRUST PARADOX

wealth of the nation."2 Efficiency is then defined in a fairly conventional fashion but applied in some fairly suspect ways, while Bork's
concept of wealth remains decidedly murky. This is not surprising:
most contemporary economists avoid using the notion of wealth
because of its emotive imprecision. These facile equationspresumably, some of Bork's "simple ideas of economics" - give rise
to numerous contradictions throughout the book.24
Maximizing consumer welfare is, of course, a goal commonly
assigned to competitive price systems by economists. Congress and
the courts are, however, charged by the Constitution and processes
of judicial review with maintaining and advancing a broader
goal-the general welfare. Differences between these types of
welfare are significant. For example, a contemporary
microeconomics text asserts that, while individuals can determine
their own preferences and canons of happiness, society cannot:
"[Tihe terms 'public' and 'society' are a bit too broad and vague to
have much scientific meaning in rational discourse."2 Constitutional
law and politics are based on totally different sets of premises, and
an economic atomism could never form the basis for political inaction in the area of antitrust or elsewhere.2" While neoclassical
microeconomics is unable to distinguish between types of consumers
and consumption, Congress has proved abundantly capable of doing
so. The whole is greater than the sum of those parts explored
through the economics of industrial organization- individuals, firms
and industries-and the paucity of sensible policy prescriptions offered by those economists and philosophers who attempt to link the
23. Id. at 7. See also id. at 90.
24. E.g., "The integration of economic activities, which is indispensible to productive efficiency, always involves the implicit elimination of ... competition. We...
should encourage it... because the integration creates wealth for the community." Id.
at 28; see id. at 98 and the text accompanying notes 66-67, infra. Even if efficiency and
wealth are synonymous with consumer welfare, how can they justify the elimination of
another synonym, competition? Bork also argues that there should be a time limit
within which a merger can be challenged because of "the question of equity, of settled
expectation." Id. at 223. What does this "equity" have to do with his universal goal of
consumer welfare? While he is probably making a valid point, Bork should not plead
the equities while execrating others for introducing their equitable notions into what
should, in his view, be a "pure" antitrust analysis. See also the text accompanying
notes 29-32, infra.
25. R. MILLER, INTERMEDIATE MICROECONoMICs 6 (1978).
26. If the individual's interest is posited as sovereign, taking adequate account of group, public and state interests becomes impossible, as does the technique of
social engineering (for want of a better term). Roscoe Pound's confused thinking
dominates American legal thought on this topic, rendering it incapable of a reasoned
response to Bork's arguments which would command a consensus.

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micro and macro spheres continues to make the exercise of a

political judgment inevitable. Historically and contrary to Bork,
there existed a "pattern of middle-class values . . . implemented by
law ... assigned high priority to ... providing a firm economic base
for erecting noneconomic goals," 7 which thereby enhanced the quality of life for some individuals. Antitrust policies and the welfare of
individual consumers can be segregated from other aspects of
general welfare for purposes of analytical convenience only; they
should not be elevated to the status of ends-in-themselves, as Bork,
some businessmen and employees of the FTC and Antitrust Division
attempt to do.
One reason why antitrust policies ought to emphasize general
welfare rather than the welfare of individual consumers, as perceived by Bork, is that we are consumers of much more than physical
products purchased in the marketplace. We also consume dirty air
and water, mental pollution through advertisements, inadequate
schools, Pintos with a hidden death wish, long commutes from
sterile suburbs to decaying city centers, and corporate contributions
to domestic and foreign political intrigues. Most neoclassical
microeconomists would define these kinds of misfortunes as "externalities" which can then be ignored or factored out of the discussion.
The analytical frame they offer, however, is too narrow for purposes
of formulating public policy as it only accounts for those demands
amenable to commercialization through the marketplace. For example, Bork (and the Chicago School) necessarily view politics and
bureaucratic activities as inherently inefficient when they are
analyzed in the same way as market activity, as means to private
ends. Non-Marxists have begun to take up the notion of commodity
fetishism to describe the intellectual bankruptcy of this approach,
and Congress and the courts have, until recently at least, displayed
an increasing willingness to view consumption in its social context.28
Bork's evaluation of the role of markets is ambiguous in the extreme. Paying a great deal of lip service to the free market system,
he also advocates mergers, vertical integrations and other means by
which market decisions are displaced by the ukases of large corporations. This is done in the expectation of (often suspect or
remote) gains in efficiency, even though markets are weakened or
narrowed in the process." He seems to take a continuing market
27.
28.
29.

J. HURST, supra note 10, at 272.

See F. HIRSCH. SOCIAL LIMITS TO GROWTH 58, 86 n.5., 91, 146 (1977).
See R. BORK, supra note 1, at 67, 108, 111, 226.

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vitality for granted while applying contemporary economic analyses
to a simpler and less alloyed laissez faire than is found in the United
States today."0 Inevitably, the maintenance of competition gets
neglected in the course of his exposition. His legal arguments
harken back to when the earliest antitrust cases were decided, prior
to the accretion of a concentrated corporate power. He seeks to
return us to a preregulatory Arcadia which bears little resemblance
to the realities chronicled by Frank Norris and Upton Sinclair and
which ignores the withering of Adam Smith's Invisible Hand which
has occurred in the interim."'
The justifications Bork offers for his heavy emphasis on productive efficiency are that "it necessarily benefits consumers by
lowering the costs of goods and services or by increasing the value
of the product or service offered," and that the Supreme Court's
failure to take adequate account of productive efficiency "has skewed
legal doctrine disastrously." 2 This is all well and good, save that the
Supreme Court almost invariably favors efficiency when faced
squarely with a choice between it and a competing policy.M Further,
Bork's concept of efficiency relies heavily on the suspect assumption
of almost limitless economies of scale. While the Chicago School
typically regards available scale economies as negligible beyond
very small scales, Bork, in his only significant departure from their
postulates, adopts the assumption of the British School that large
scale economies exist, especially within large multiplant firms. This
theoretical, almost theological, dispute cannot be resolved until problems inherent in calculating long run average cost curves are overcome; few practical generalizations can be made at this stage." The
30. E.g., id at 394: "Price discrimination is, on balance, probably better for
consumers than any rule enforcing nondiscrimination, and ... law cannot satisfactorily
deal with the phenomenon in any event." While this assertion is supported by some interesting arguments, and while the law is far from satisfactory in this area, the extent
of consumer benefit must surely depend on the particular discriminator's market
power and the purposes for which it is exercised. See i at 415; note 31, infra. For
Bork's Economic Darwinism, see text accompanying note 59, infra.
31. 1& at 425. "The regime of capitalism brings with it not merely unexampled economic performance and a social and cultural atomosphere that stresses the
worth of the individual but, because of the bourgeois class it creates, trains, and raises
to power, the possibility of stable, liberal, and democratic government."
32. Id at 7.
33. P. AREEDA & D. TURNER, 1 ANTITRUST LAW 9 (1978). From this perspective, the real dispute concerns whether courts regularly destroy efficiencies without
realizing it; it is clearly not the conscious process Bork makes it out to be.
34. See D. DEWEY, MONOPOLY IN ECONOMICS AND LAW 30-41 (1951); J. KOCH, IN.
DUSTRIAL ORGANIZATION AND PRICES 101 (1974).

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effect of his assumption is to make Bork an advocate for the biggest

of business enterprises. In comparison, the Supreme Court seems to
convey a "small is beautiful" message, a message which in some
respects coincides nicely with nascent appreciations of the physical
and social limits to growth and the humanistic aspects of economic
development."
Bork opens the door to these kinds of policy considerations, for
he admits that "[e]fficiency is at bottom a value concept, not a
description of mechanical or engineering operation [sic]." He then
adopts Frank Knight's efficiency definition of a ratio "between
useful output and total output or input."37 The usefulness of any output remains open to discursive justification and, consequently, so does
efficiency. For example, Bork's assertion that outputs which are not
readily susceptible to commercialization should be excluded from antitrust analyses is not persuasive. Must we, as Bork suggests, accept
a monopoly where gains in terms of the economist's productive efficiencies outweigh losses of allocative efficiencies," or are we entitled
to ask Quo warranto?9 Consider an example of how Bork's notions
of efficiency foster muddled commentaries:
If no manufacturer used exclusive dealing contracts, and if
a local retail monopolist decided unilaterally to carry only
Standard's [dressmaking] patterns because the loss in
variety was more than made up in the cost saving, we
would recognize that the decision was in the consumer
[sic] interest. We do not want a variety that costs more
than it is worth.'0
How can we calculate what "it is worth," taking into account Bork's

35.

See

CLUB OF ROME, THE LIMITS TO GROWTH (1974);

F.

HIRSCH,

supra note

28; G. MYRDAL, ASIAN DRAMA (1968); E. SCHUMACHER, SMALL IS BEAUTIFUL (1974).

While these books have had a major impact on Continential thinking, they have scarcely made a dent in the provincialism of American economists. Judges have been slightly
more progressive in this area. See Brown Shoe Co. v. United States, 370 U.S. 294, 344
(1962) (per Warren, C.J.); United States v. Aluminum Co. of America, 148 F.2d 416, 427
(2d Cir. 1945) (per Hand, J.). As might be expected, Bork is extremely critical of these
decisions.
36. R. Bork, supra note 1, at 105.
37. Id.
38. Id at 98.
39. Kaysen, The Corporation, in THE CORPORATION IN MODERN SOCIETY 85,
97 (E. Mason ed. 1970).
40. R. Bork, supra note 1, at 307, discussing Standard Fashion v. MagraneHouston Co., 258 U.S. 346 (1922).

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assertion at other junctures that freedom of choice is a significant

component of consumer welfare, the only permissible antitrust goal?
Bork's views on advertising and sales promotions illustrate his
attitudes towards consumer choice and welfare and the usefulness of
a particular output. Criticisms of advertising, he argues, are "based
on invincible ignorance of the functions it serves" and "on an unadmitted bluenosism." "Much of human happiness depends on the
fleeting fantasies and comforting attitudes with which we bolster
our morale in the face of the 'objective' truth of our lives and prospects. Only a modern Puritan can object to these evanescent
satisfactions which advertisers provide us."' 1 This abrupt descent
from the high perch of scientific objectivity has a snobbish air about
it; "we" clearly refers to "them," not "us." The possibility that this
Yale law professor bolsters his morale through advertising is
negated by a disdainful view of consumers who "forget" and "are
relatively inattentive" and able to "retain only a few
points""2- qualities presumably inconsistent with being a Yale law
professor and which may be the effect rather than the cause of
advertising techniques. Bork's point in introducing all of this is to
advance the view, held by many economists, that a "composite product" results from the addition of advertising and sales promotions
to the physical object. This composite is deemed more useful than
the naked object because consumers "willingly" pay more for it. As
a result, and in order to avoid injuries to retailers arising from the
"free ride," we should deprive consumers of a choice already truncated by advertising and legalize all resale price maintenance
agreements. 3
Bork's view of the purpose and effect of advertising is difficult
to sustain, except among disingenuous businessmen. To the extent it
succeeds, advertising converts consumer sovereignty into a textbook
fiction, reduces the discipline exercised by the market over major
advertisers and has other pernicious consequences. Dahl and Lindbloom argue that "[aidvertising often misinforms, confuses judgment, and debases taste; in all this, it obstructs rationality."" Fred
Hirsch adds that, through advertising, "self-interest becomes the
social norm, even duty. [This tendency conflicts with] traditional
These
morality, with its stress on duty and social obligation ....
",

41.
42.
43.
44.

45.

R. BORK, supra note 1, at 313, 317-18.

Id. at 318.
Id. at 274, 295-97, 373.
R. DAHL & C. LINDBLOOM, POLITICS, ECONOMICS AND WELFARE 415 (1976).
F. HIRSCH, supra note 28, at 82-83.

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harms far outweigh the benefits enumerated by Bork for, as Frank

Knight (whose views Bork seems to respect) argues, true individual
satisfaction is based on "the refinement and elevation of the plane of
desire, the cultivation of taste."'" Antitrust policies, and those of the
FTC in particular, have a crucial role to play in an elevation of the
usefulness of national output-at least in this bluenosed Puritan's
opinion.
Forced to choose, the reader would probably conclude that
Bork's law is better than his economics. The choice is a narrow one,
however. His eccentric policy preferences permeate both spheres
and the excessive reductionism found in Bork's legal analyses is
heavily buttressed by reductio ad absurdum arguments. Maintaining,
for example, that courts are unable to distinguish predation from
"normal" competitive processes while applying what he mistakenly
terms the "legal fiction" that certain business practices are
automatically exclusionary, he states that "courts would have to
regulate amounts paid for films, admission prices, interior comfort
and decor, and so forth, to ensure absolute equality between
theaters in the same town."" Courts are by no means perfect but
judges are certainly more intelligent that that, and none of the
numerous cases about film distribution and exhibition go anywhere
near as far as Bork suggests. We are then told that the:
auto dealer who refuses to sell only the chassis or the
grocer who declines to subdivide a can of pears are engaged in tying. The law ... attempts to avoid this ridiculous
conclusion by distinguishing between packages that are inherently one product and those that are inherently more
than one. But . . . [there] is no way to state the 'inherent'
scope of a product.
This issue does occasionally cause difficulty, but judicial common
sense by and large resolves it satisfactorily and more sensibly than
Bork, who would legalize all tying arrangements.' 9 In a third example, Bork echoes the hoariest chestnut in antitrust law, Justice
Peckham's concern that the formation of a corporation or partner46.
47.
neglecting
had better
48.
49.
see Siegel
955 (1972).

Id.at 61.
R. BORK, supra note 1, at 143. He criticizes this "prophylactic rule,"
a fortuitious double entendre: it may be annoying and inconvenient, but it
be there if it is needed. See id
R. BORK, supra note 1, at 379.
Id. at 365-66, 380-81. For an example of a more sensible judicial approach,
v. Chicken Delight, Inc., 448 F.2d 43 (9th Cir. 1971), cerL denied, 405 U.S.

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ship could be deemed a restraint of trade. 0 The appropriate

response to this concern is to examine the market power possessed
by the enterprise and the ways in which it is exercised, factors
which are largely ignored by Bork51 and Peckham. The reincorporation of Standard Oil of New Jersey in 1899 could, for example, be invalidated because the company exercised a substantial power in
abusive ways, while Bork's grocer with his can of pears does not.
Summing up his arguments-some of which are more satisfying
than those we have cited - Bork concludes that antitrust law ought
to prohibit only: horizontal agreements which are not ancillary to
some legitimate business purpose and which are especially prevalent
in regulated industries; horizontal mergers resulting in fewer than
three "significant" rivals; and deliberate predations designed to prevent or delay new entries into the market or to discipline existing
rivals, as distinct from mere rigorous competition. 2 These simple
conclusions flow from a simplistic view of the real world.
Businessmen have evolved many types of anticompetitive behavior
which have, in turn, spawned complex legal techniques for applying
statutes which do not interpret themselves. These techniques are by
no means coherent, but they represent what were, at least at the
time, reasoned responses acquired at substantial expense.' Bork's
desire to emasculate these techniques without replacing them would
only cause anticompetitive behavior to flourish, which is contrary to
the antitrust statutes. From Bork's viewpoint, however, these few
simple rules of antitrust law would have the advantage of handicapping the courts that inevitably promulgate "utterly arbitrary" rules
which are "unrelated to [Bork's] reality."5
These arguments provide no viable alternative to the crescive
nature of antitrust law, the outcome of growing judicial experience
and accretions of corporate power and anticompetitive behavior.
With apologies for an overextended metaphor, what judges do in the
field of antitrust is similar to the process of selecting a pub for
50.

United States v. Joint Traffic Ass'n, 171 U.S. 505, 567-68 (1898). See R..

BORK, supra note 1, at 23, 135.

51. See, e.g., note 30, supra.

52. R. BORK. supra note 1, at 405-07.
53. "Formal products of legal processes . . .add up to a formidable body of
evidence of values held by some individuals and groups." J. HURST, supra note 10, at
215. This evidence is solid because the law is not invoked lightly. Since the law's impact is only marginal, its effectiveness requires at least a substantial acceptance of it
or an adroitness in litigation, bargaining and/or manipulating public complacence. Id. at
215-19.
54.

R.

BORK,

supra note 1, at 410.

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lunch that has been recommended to the English. The procedure to

follow, while hungry, driving in an unfamiliar part of the country
and bearing in mind that pubs close for the afternoon, is to
scrutinize carefully the first pub you come to, correlating what you
see with what you already know about the food, beer, clientele, etc.
of other pubs. The luncheon pub to choose is then the very next one
that looks better than the one first sighted. This is unlikely to be
the best pub in the neighborhood, but at least you won't be forced
to choose, at 2:00 p.m., between eating in a totally unsatisfactory
pub or going hungry-unless, as is unlikely, the first pub you saw is
the best. Such a process lacks even the precision of the economist's
theory of the second best. It is, however, grounded in the experience of other pubs acquired at some expense and energy, and it
provides an artificial but workable and hence useful truncation of
the variables considered." Personal preference clearly plays a
significant role, but everybody knows an obviously bad pub when
they see one and decisions will thus be roughly in keeping with
"community standards." If lunch turns out to be disappointing,
there's always tomorrow and at least you have learned something.
Professor Bork would presumably have us starve in pursuit of an
unattainable elegance, retrace our journey to some "ultimate" pub
sighted at 10:00 a.m. (or recommended eighty years ago by Justice
Peckham), or apply some aberrant efficiency criterion and eat in the
functional equivalent of McDonald's. Clearly, his Antitrust Paradox
is no Good Pub Guide.
Why did Bork write his book? He finds himself incensed by the
fact that contemporary "[a]ntitrust is a subcategory of ideology":
"by the time a once militant ideology triumphs and achieves embodiment in institutional forms, its adherents are likely long since to
have left off debating first principles."' Ideology and institutions
grind on, even though "public and political enthusiasm for the harrassment of business is at an ebb . . . ."I Recognizing that an
55. Problems and misunderstandings arise in the legal sphere only because
judges-and thus lawyers-are compelled by the rules of the game to prove that an inevitably imperfect process approximates an ideal rationality. Naked judicial expedience lacks legitimacy, see note 72, infra, and is thus concealed and to some extent
displaced in the antitrust area by the image of an administration of a coherent body of
doctrine derived from brief statutes of almost unlimited pliability. Few academics
would deny the explicitly political nature of this process which is a response to, in
Hurst's words, the command of the "constitutional ideal." J. HURST, supra note 10, at
136. Bork repeatedly wrings his hands over the political role of the judiciary, however.
56. R. BORK, supra note 1, at 3. See id at 423.
57. Id. at 4. "Harassment" may not be the correct word. An overall "ebb" may
be difficult to discern and, given his view of the public's stupidity, Bork would

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ideology can only be pushed aside by another ideology, Bork sets

out to assemble his own" from surprising crude components. Consider his attempt to graft the Invisible Hand onto Oswald Spengler's
stump:
The environment to which the business firm must adapt is
defined, ultimately, by social wants and the social costs of
meeting them. The firm that adapts to the environment
better than its rivals tends to expand. [Elconomic natural
selection has normative implications that physical natural
selection does not have. At least there seems to me more
reason for enthusiasm about the efficient firm than about
...the rat and the cockroach ....
[W]henever the physical environment provides a
niche capable of sustaining life, an organism will evolve or
adapt to occupy the place. The same is true of economic
organisms, hence the fantastic proliferation of forms of
business organization, products, and services .'. .. 1
This is an argument so thoroughly discredited that it has not been
advanced seriously for a long time. Unlike the rat and the
cockroach, people have acquired a limited immunity from processes
of natural selection through an ability to modify our physical and
social environment. Large corporations, as human instrumentalities,
share this capacity, to manipulate consumers, markets, sources of
finance and government itself to insure survival. If shareholder
revolts or takeover bids do not save it first, the death of a big corporation then becomes a political impossibility because of the
adverse impact on employment, national security, etc.
presumably disapprove of a more vigorous antitrust policy in response to additional
public enthusiasm for it.
58. While he does not own up to the fact, Bork's arguments are ideological in
at least four senses of that term: they respresent a combination of interdependent
facts and values; they reflect the desire of a particular elite to establish its intellectual,
moral and political leadership (what Bork accuses "the intellectual class" of
attempting); they are to have a guiding, supporting and restraining effect on political
behavior, providing explanations and justifications of an image of the good life and a
strategy for achieving it; and they can be used effectively to cloak shabby actions. See,
e.g., note 31, supra.
59. R. BORK, supra note 1, at 118-19. For another example of crude argumentation, see id. at 78: "Just as protected speech lies next to that which may be outlawed,
so does vigorous price competition adjoin that which goes too far and is predatory."
This is a facile attempt to equate something which has acquired a limited statutory
sanction with a "preferred" freedom under the Constitution.

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The Economic Darwinism propounded by Bork encourages us

to regard present states of affairs as natural, inevitable and even
desirable. What we get is one grand Panglossian Ethic, an example
of "the Chicago School technique of arguing that (at least in the
economy) what is, is for the best."" For example, Bork cites the
work of a Chicagoan, George Stigler, as authority for a "survivorship test": "any size achieved by internal growth without predation
is the most efficient size for that firm. [Thus,] the dissolution of any
such firm will always create a loss. "1 Implicit is a host of empirically unproved assumptions about market structures, economies of
scale, barriers to entry, the degree of managerial attachment to profit maximization, etc. While Bork's arguments veer uneasily between a laissez faire and anticompetitive but supposedly more efficient arrangements, they all have one thing in common: they
attempt to reify the preferences of the managers of large corporations." The apparent reason that the concept of consumer welfare is
so muddled is that it is a code word, a stalking-horse for corporate
welfare.
Notwithstanding Bork's assertions, the relationship between
the large corporation and the state should be characterized as an
ebb and flow of threats and benefits, with each administrative program or court case viewed by the players as a separate game with
its own stakes, penalties and ploys. 3 Managers of large corporations
benefit directly or indirectly from many, and perhaps most, of these
programs and decisions, yet businessmen feel free to pick and
choose among them and to seek to discard the onerous ones, particularly in the area of antitrust. Corporate attempts to maintain old
privileges and acquire new ones are usually buttressed by parading
the "natural rights" accruing to private property and by depicting
business power as strictly controlled by a price system, of which
entrepreneurs are mere passive agents."
60. Rosenbluth, Comment, 19 J.L. & ECON. 389, 390 (1976) (referring to
Demsetz, Economics as a Guide to Antitrust Regulation, 19 J.L. & ECON. 371 (1976)).
61. R. BORK, supra note 1, at 194 (emphasis in original).
62. E.g., id at 199. Bork argues that mergers permit "entrepreneurs" to liquidate their holdings for irreproachable reasons; "economic welfare" requires a good
market for capital assets; and the rewards for "entrepreneurial endeavor" can be
enhanced by increasing the value of capital assets. Capital asset value is, of course, a
matter of definition in imperfect markets. While it remains unproved that enhanced
values will call forth additional entrepreneurialendeavor, they would certainly represent a redistribution of income in favor of the asset holders.
63.
64.

See M. EDELMAN, THE SYMBOLIC USES OF POLITICS 1, 14, 49, 114 (1964).
R. DAHL & C. LINDBLOOM, supra note 44, at 482.

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Bork augments this corporate ideology by reverting to

discredited policies and pieties, by arguing for an Economic
Darwinism and by warning us of the destruction of "wealth" that attends a vigorous application of antitrust policies while praising the
creation of "wealth for the community" through economic integration."6 Wittingly or not, Bork misuses the admittedly vague concept
of wealth. He fails to note the change that has occurred in the
United States "from an economic system of possessory property into
an economic system of administered power.""8 For example,
divestitures seldom destroy the wealth or abuse the property rights
of natural persons (unless Bork's problematic attitude toward
economies of scale. is adopted); divestitures merely alter the
organizational forms through which the state permits wealth to be
controlled. More generally, the notion that the redistribution of
wealth destroys it ignores the fact that what constitutes "wealth" is
governed by how claims to it are distributed. 7 These claims are
defined, in large measure, through privileges, as opposed to rights,
granted or tolerated under law, privileges which are the chief bone
of political contention and which can be withdrawn without objection under the Constitution. The corporation owes its privileges and
its very existence to the state, and it is only the political power of
corporate managers-and public fears of killing off geese that lay
golden eggs-that prevent broader state interventions than the
ones embodied in antitrust laws."8
Government has the power of command over all of property,
subject to constitutional promises of compensation in some
instances; there are no "natural rights." Government's failure to
intervene thus constitutes an acceptance of the status quo and is
65. R. BORK, supra note 1, at 28. See id. at 70:
Antitrust is wholly unable to serve values that must be implemented by
requiring or inducing affirmative conduct which the self-interest or
capabilities of private persons do not cause or permit them to undertake.
[Wihen the antitrust laws are seen as keyed to the goal of wealth creation, it becomes apparent that their passive and prohibitory nature is a
necessity.
The connection between "wealth creation" and Bork's sole legitimate antitrust
goal-maximizing consumer welfare-is unclear, however. Where the distribution of
wealth is more unequal than the distribution of consumers' incomes, wealth may
predominently fall to large companies with a high marginal propensity to retain earnings. Consumers may thus see little more of this wealth than a public squalor.
66. C. DEHOUGHTON, THE COMPANY 132 (1970).
67. F. HIRSCH. supra note 28, at 66 n.19.
68. See Latham, The Body Politic of the Corporation, in THE CORPORATION
IN MODERN SOCIETY

218, 223 (E. Mason ed. 1970); L. FRIEDMAN, supra note 10, at 180-81.

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regarded as such by the public. It is government (and the President

in particular) which ultimately bears the blame for poor economic
performance. Government, therefore, must do something and be
seen doing something when economic issues are inevitably and
rapidly transferred to the political arena. One of the more popular
things to do is to exert control over big business, or at least to appear to do so. Bork, like many other antitrust scholars, ascribes this
tendency to a Jeffersonian populism at large in a populace woefully
ignorant of the benefits of capitalism and dedicated to "the preservation of a sturdy, independent yeomanry in the business world."69
This is altogether too simple an explanation for several reasons.
Public ignorance is in the eye of the beholder. An unemployed person, for example, acquires a profound understanding of the economy
which is foreclosed to a tenured professor. Secondly, Bork's argument makes populists of most middle-class Americans and it makes
Jeffersonian populism roughly coexistive with the dominant thread
of twentieth century liberalism, which runs through Woodrow
Wilson's New Freedom, the New Deal and even the Great Society."0
Thirdly, Bork ignores the fact that at least a modicum of small
business opportunities is viewed by politicians in industrialized
countries other than the United States as an essential precondition
of political stability. While economists may doubt the wisdom of
these policies, the political will to carry them out-really the desire
to remain in office-cannot be gainsaid, particularly as economists
have provided no convincing alternatives.7 1 Finally, the recoupling of
the economy to the political system in the twentieth century and
throughout the industrialized world, for reasons unrelated to a Jeffersonian populism, has markedly increased the need for the
legitimation of economic activity."2 The breakdown of the ideology of
laissez faire and the segregation of corporate ownership and control
have already eliminated the sources of legitimacy on which Bork
73
seeks to trade.
69.

R. Bork, supra note 1, at 54. See id.at 413.

R. DAHL & C. LINDBLOOM, supra note 44, at 480, 481.
71. M. MASSEL, supra note 17, at 124, puts it thus: "The pressures within our
society make themselves felt so effectively that policy development cannot rest exclusively on a technical basis." In other words, these "pressures" win out, notwithstanding the attempts of Bork and others to "foreclose" the issue.
72. J. HABERMAS, LEGITIMATION CRISIS 36, 87 (1976). The reasons for these
crises are extremely complex. See e.g., id.,
passim; R. DAHRENDORF, CLASS AND CLASS

70.

CONFLICT IN INDUSTRIAL SOCIETY

(1959). Legitimacy may be defind as "faith or trust in

structures or procedures" which are endowed with the prestige of "exemplariness and
obligatoriness." L. FRIEDMAN, supra note 10, at 112.
73. See, e.g., note 31, supra.

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It is a misfortune of American big business that it has never

taken the trouble to legitimate the great power acquired in the
twentieth century. Assertions of a corporate social responsibility are
too little and too late. While some draw comfort from this new
ideology, "benevolence cannot . .. be a satisfactory justification for
despotism.""4 There is a stubbornly persistent demand in all areas of
American politics that organized power be defined and evaluated by
persons and institutions other than the immediate power holders.
Corporate accountability thus is required in addition to efficiency.
The legitimacy of antitrust laws runs deeper than the business
ethos, which is not to say that these laws are not applied mistakenly, irrationally or abusively in some instances. 5 Antitrust cannot be
viewed as Bork would wish" as "a massive introduction of public
force into an area of private activity."" What is public and what is
private is itself defined under the antitrust laws, among others.
Those who accept the substantial benefits conferred by the
"private" corporation laws can be compelled to accept the
detriments imposed through "public" corporation laws. Bork would
require precious little from corporations in the way of a quid pro
quo for the general welfare, and his slipshold arguments should thus
command little attention outside the business community.
Paul H. Brietzke*

74. Brewster, The Corporation and Economic Federalism, in THE CORPORATION IN MODERN SOCIETY 72, 73 (E. Mason ed. 1970). See A. BERLE, JR., ECONOMIC
POWER AND THE FREE SOCIETY 16 (1958); J. HURST supra note 10, at 242-45. Hurst
argues that the regulation of labor relations, product safety, advertising and finance
show that the public is unprepared to accept corporate management as selflegitimizing.
75. See R. DAHL & C. LINDBLOOM, supra note 44, at 480; J. HURST, supra note
10, at 45, 68-69, 209.
76. R. BORK, supra note 1, at 417.
*Associate Professor of Law, Valparaiso University.

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