''The Antitrust Paradox'' is an influential 1978 book by

Robert Bork Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American legal scholar who served as solicitor general of the United States from 1973 until 1977. A professor by training, he was acting United States Attorney General and a judge on ...

that criticized the state of

United States antitrust law In the United States, antitrust law is a collection of mostly federal laws that govern the conduct and organization of businesses in order to promote economic competition and prevent unjustified monopolies. The three main U.S. antitrust statute ...

in the 1970s. A second edition, updated to reflect substantial changes in the law, was published in 1993. Bork has credited Aaron Director as well as other economists from the University of Chicago as influences. Bork argues that the original intent of antitrust laws as well as economic efficiency makes consumer welfare and the protection of competition, rather than competitors, the only goals of antitrust law. Thus, while it was appropriate to prohibit

cartel A cartel is a group of independent market participants who collaborate with each other as well as agreeing not to compete with each other in order to improve their profits and dominate the market. A cartel is an organization formed by producers ...

s that fix prices and divide markets and mergers that create monopolies, practices that are allegedly exclusionary, such as vertical agreements and

price discrimination Price discrimination (differential pricing, equity pricing, preferential pricing, dual pricing, tiered pricing, and surveillance pricing) is a Microeconomics, microeconomic Pricing strategies, pricing strategy where identical or largely similar g ...

, did not harm consumers and so should not be prohibited. The

paradox A paradox is a logically self-contradictory statement or a statement that runs contrary to one's expectation. It is a statement that, despite apparently valid reasoning from true or apparently true premises, leads to a seemingly self-contradictor ...

of antitrust enforcement was that legal intervention artificially raised prices by protecting inefficient enterprises from competition. The book has been cited by over a hundred courts. From 1977 to 2007, the

Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...

repeatedly adopted views stated in ''The Antitrust Paradox'' in such cases as '' Continental Television, Inc. v. GTE Sylvania, Inc.'', 433 U.S. 36 (1977), '' Broadcast Music, Inc. v. CBS, Inc.'', '' NCAA v. Board of Regents of the University of Oklahoma'', '' Spectrum Sports, Inc. v. McQuillan'', '' State Oil Co. v. Khan'', '' Verizon v. Trinko'', and '' Leegin Creative Leather Products, Inc. v. PSKS, Inc.'', legalizing many practices previously prohibited. ''The Antitrust Paradox'' has shaped antitrust law in several ways, prominently by focusing the discipline on efficiency and articulating its goal as "consumer welfare". Many lawyers and economists, however, have pointed out that Bork was wrong in his analysis of the legislative intent of the Sherman Antitrust Act of 1890 and have criticized him for incorrect economic assumptions and analytical errors. One of the key criticisms focuses on Bork's use of the term "consumer welfare", which became the stated goal of American antitrust law. Bork argues that Congress enacted the Sherman Act as a "consumer welfare prescription". The Supreme Court embraced this view in ''Reiter v. Sonotone Corp.'', 442 U.S. 330 (1979) and in all subsequent decisions. Many scholars, however, have shown that Congress had several motives for the adoption of the Sherman Act, probably none of which was "consumer welfare". Moreover, Bork's use of the term "consumer welfare" was inconsistent with its use by economists. When the Supreme Court adopted the view that Congress enacted the Sherman Act as a "consumer welfare prescription", it did not define the meaning of the term, which has remained ambiguous. The book's title is referenced in ''Amazon's Antitrust Paradox'', a popular paper by Lina Khan who became Chair of the Federal Trade Commission. Her paper seeks to reframe and strengthen antitrust law.

Publication history

* Bork, Robert H. (1978). ''The Antitrust Paradox''. New York: Free Press. . * Bork, Robert H. (1993). ''The Antitrust Paradox'' (second edition). New York: Free Press. .

References

{{DEFAULTSORT:Antitrust Paradox, The Robert Bork 1978 non-fiction books Law books Works about competition law

Publication history

See also

References