Antitrust Made (Too) Simple
Christopher R. Leslie, Antitrust Made (Too) Simple, 79 Antitrust L.J. 917 (2014).
Robert Bork fundamentally changed the field of antitrust law with the publication of his book The Antitrust Paradox in 1978. The book’s primary themes were that antitrust doctrine should be concerned only with economic efficiency (which Bork termed “consumer welfare”) and that antitrust law had come untethered from efficiency. Bork championed per se legality for a variety of conduct, including resale price maintenance, non-price vertical restraints, and tying arrangements. He advocated greater latitude for horizontal mergers and complete immunity for all vertical and conglomerate mergers.
Now several decades old, Robert Bork’s The Antitrust Paradox continues to be among the most influential scholarship in antitrust law. Opinions differ as to the basis for Bork’s influence. Those who agree with Bork’s description of antitrust law and his prescriptions on antitrust policy would no doubt argue that it has been influential because Bork is correct on the merits. Some critics have suggested that the book’s influence stems from its circular reasoning, “which is its strength because circular logic is not rebuttable.” This essay posits an alternative explanation for Bork’s influence: even though Bork was largely wrong in his description and analysis of antitrust doctrine, he is influential because his explanations of complex economic phenomena were so simple.
This essay examines four issues related to the simplicity of Bork’s approach to antitrust law. First, it shows how Bork oversimplified the legal landscape of antitrust law, which he then used as a foil. Second, it discusses how Bork made sweeping claims based on weak evidence, oversimplified assumptions, and logical fallacies. Third, it hypothesizes why Bork’s views have been so persuasive to judges. And, fourth, it condemns Bork’s ultimate legacy — his attempt to thwart the evolution of antitrust economics beyond his basic model where all markets are efficient and antitrust law is unnecessary. The essay concludes that the greatest strength of Bork’s scholarship — its simplicity — is also, ultimately, its greatest weakness.