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36 Wayne L. Rev. 1413 (1989-1990)
The Antitrust Paradox Revisited: Robert Bork and the Transformation of Modern Antitrust Policy

handle is hein.journals/waynlr36 and id is 1423 raw text is: THE ANTITRUST PARADOX REVISITED: ROBERT BORK AND THE TRANSFORMATION OF MODERN ANTITRUST POLICY William E. Kovacict I. INTRODUCTION Since the passage of the Sherman Act in 1890,1 antitrust's periodic upheavals in judicial analysis, public enforcement, and legislation have derived crucial force from the outcome of well- defined episodes in a continuing contest of ideas.2 Amid a vast expanse of commentary, the prescriptive works that have decisively influenced the intellectual debate over federal antitrust policy con- stitute a modest collection at best. To understand antitrust's past and to predict the future direction of what Thurman Arnold once called a preaching device,'3 one must study the formative works of antitrust's leading theologians. t Associate Professor, George Mason University School of Law. This Article is based in part upon a working paper titled The Antitrust Paradox REvIsrrED: ROBERT BoRK AND Tm T RANSFORmAT=N OF MODERN ANTIrnUST PoLIcY (Washington Legal Foundation, Feb. 1989). The author thanks the Smith-Richardson Foundation for its support in preparing the Article and grate- fully acknowledges the research assistance of Sean J. Coleman and Steve C. Taylor. The author also is indebted to Kathryn M. Fenton, Michael S. Greve, Robert H. Lande, Michael P. McDonald, Shannon O'Chester, and E. Thomas Sullivan for many useful suggestions and discussions. 1. 26 Stat. 209 (1890) (codified as amended at 15 U.S.C. §§ 1-7 (1982)). 2. See, e.g., Kovacic, Failed Expectations: The Troubled Past and Uncer- tain Future of the Sherman Act as a Tool for Deconcentration, 74 IowA L. REv. 1105, 1128-39 (1989) (describing the influence of intellectual debate on the use of the Sherman Act to restructure concentrated industries); Rowe, The Decline of Antitrust and the Delusions of Models: The Faustian Pact of Law and Economics, 72 GEo. L.J. 1511 (1984) (analyzing impact of changes in industrial organization economic theory upon antitrust doctrine and policy); see also, Bork, Judicial Precedent and the New Economics, in ANTrrRusT PoLicY IN TRANSmON: THE CONVERGENCE OF LAW AND EcONoMIcs 5, 7 (E. Fox & J. Halverson eds. 1984) (comments describing modem Chicago School Scholarship that generated a kind of 30-year intellectual war in antitrust). 3. T. ARNOLD, THE For roRn OF CAPrrAiisM 211-12 (1937). 1413

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