The Antitrust Law Journal, Robert Bork, the European Union, and Google

The Antitrust Paradox by Robert Bork

When you are an antitrust lawyer, an exciting day each quarter is the arrival of a fresh issue of the Antitrust Law Journal. I’ve previewed these issues in the past, here and here. Once again, the Antitrust Law Journal has arrived and it looks like a great one.

This issue includes an extensive symposium entitled “Robert Bork and Antitrust Policy.” A superstar collection of authors—including Herbert Hovenkamp, Richard Epstein, William E. Kovacic, Judge Douglas H. Ginsburg and many others—discuss Bork’s contribution to antitrust law. And my fellow summer associate from Gibson Dunn & Crutcher (from more than a few years ago), Adam J. Di Vincenzo, wrote the Editor’s Note.

Outside of the antitrust world, Robert Bork is known primarily for his Senate confirmation hearings after his Supreme Court nomination. For those of you that weren’t paying attention during the 1980s, Bork arrived at the Senate hearings as an exceptionally well-qualified nominee by President Ronald Reagan to the US Supreme Court. But for ideological reasons, they rejected him, beginning the phrase and culture of “Borking” a judicial nominee that, although qualified, may not satisfy political litmus tests. Since that time, of course, judicial nominations have, unfortunately, devolved into ideological warfare.

If you were around during the 1970s, you might also remember that Robert Bork was the acting head of the Department of Justice that fired Special Prosecutor Archibald Cox during the Saturday Night Massacre, arising out of Watergate near end of the Nixon Administration.

But—whatever you think of Robert Bork politically—he is a candidate for the antitrust-law Mount Rushmore. His most famous antitrust contribution is a book called “The Antitrust Paradox: A Policy at War with Itself.” As you can tell from the title, it was written during a time of flux and uncertainty in antitrust (1978).

You can read the outstanding articles in the Antitrust Law Journal for more detail, but in a nutshell, Bork’s major contribution with this book was to help set the goals of antitrust law toward consumer welfare. This more narrow approach contrasted with common temptations to use antitrust law as social policy to, for example, protect certain businesses from large companies. Or to use antitrust law as a means to attack “bigness” for other reasons.

Bork was highly influential in persuading antitrust participants that antitrust is really only concerned with activity that harms competition, which is the premise of the antitrust injury requirement. There is, of course, great debate over what, exactly, is consumer welfare and even whether total welfare is a better goal. And his emphasis on using economics to develop antitrust doctrine is mainstream, but there is plenty of room for debate within that framework.

During law school, I was fortunate enough to do research for prominent antitrust scholar Einer Elhauge during my time at Harvard Law School. That interest carried over to my clerkship in Minneapolis for Judge Loken on the Eighth Circuit.

During the early months of my clerkship, I would often spend my weekend mornings drinking Chocolate Steamers at Dunn Brothers in downtown Minneapolis, reading books on various subjects. One of them was Robert Bork’s, “The Antitrust Paradox.” As someone with great interest in law and economics, Bork’s book had a strong early influence on my own antitrust perspectives. Along with my work for Professor Elhauge, it also contributed to my interest in practicing antitrust. (A picture of my copy “The Antitrust Paradox” is above).

This most recent issue of the Antitrust Law Journal celebrating Robert Bork’s contribution to antitrust is particularly timely, as the European Parliament passed a non-binding resolution to break-up Google. This action, along with antipathy in Europe and elsewhere toward other technology companies like Facebook and Amazon, present a strong test of the idea that the purpose of antitrust law, including EU competition law, is to protect competition, not to pursue other political ends.

It appears that these political actions and calls for action are less concerned about whether, economically-speaking, Google and other companies are abusing dominant or monopoly power, and more concerned with weakening strong influential companies. Before Bork’s contribution, this approach was not uncommon and the antitrust world wasn’t aligned with how to deal with it.

There is plenty to debate about antitrust. But, thanks in part to Robert Bork’s contribution, most antitrust actors agree that taking antitrust action against conduct or companies that are not harming competition itself is wrong.

For your convenience, below are the articles in Volume 79, Issue 3 of the 2014 edition of the Antitrust Law Journal:

Acknowledgments: Volume 79

ARTICLE

When The State Harms Competition—The Role for Competition Law
Eleanor M. Fox and Deborah Healey

SYMPOSIUM: ROBERT BORK AND ANTITRUST POLICY

Editor’s Note: Robert Bork, Originalism, and And Bounded Antitrust
Adam J. Di Vincenzo

The Tempting Of Antitrust: Robert Bork and the Goals of Antitrust Policy
Daniel A. Crane

Out of control? Robert Bork’s portrayal of the U.S. Antitrust system in the 1970s
William E. Kovacic

Was the Crisis In Antitrust A Trojan Horse?
Barak Orbach

Bork’s Bowman: “Not Gone, but Forgotten”
Richard Epstein

Antitrust Made (Too) Simple
Christopher R. Leslie

Bork’s “Legislative Intent” And the Courts
Douglas H. Ginsburg

Robert Bork’s Forgotten Role in the Transaction Cost Revolution
Alan J. Meese

Robert Bork and Vertical Integration: Leverage, Foreclosure, and Efficiency
Herbert Hovenkamp

The Transformation of Vertical Restraints: Per Se Illegality, The Rule of Reason, And Per Se Legality
D. Daniel Sokol

Bork and Microsoft: Why Bork Was Right and What We Learn About Judging Exclusionary Behavior
Harry First

Afterword: Lorain Journal and the Antitrust Legacy of Robert Bork
Leon B. Greenfield