Previous business/academic article Next business/academic article
General Antitrust

Consumer Welfare and the Legacy of Robert Bork

Kenneth Heyer, Journal of Law and Economics, Forthcoming 2014.

See Kenneth Heyer's resume

Click here to read the full article online

Writing in 1978, Robert Bork famously stated in his classic treatise
The Antitrust Paradox:

Antitrust policy cannot be made rational until we are able to
give a firm answer to one question: What is the point of the
law—what are its goals? Everything else follows from the
answer we give. Is the antitrust judge to be guided by one
value or by several? If by several, how is he to decide cases
where a conflict in values arises? Only when the issue of
goals has been settled is it possible to frame a coherent body
of substantive rules. (1978, p. 50)

He went on to bemoan the fact that:

Despite the obtrusive importance of this issue, the federal
courts in over eighty years have never settled for long upon a
definitive statement of the law’s goals.

Today the courts seem as far as ever from the necessary
clarity of purpose. (p. 50)

Bork’s writings, particularly his rigorous and compelling
collection of arguments for making protection of consumer welfare
the sole and proper guide for antitrust policy, sought to provide
antitrust with that missing “clarity of purpose.”

© 2014 - Institute of Competition Law Download our brochure