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44 Rutgers L. Rev. 101 (1991-1992)
The New Antitrust Paradox: Antitrust Injury

handle is hein.journals/rutlr44 and id is 111 raw text is: THE NEW ANTITRUST PARADOX: ANTITRUST INJURY Norman W. Hawker* In 1978, Judge Robert Bork published The Antitrust Paradox: A Policy at War with Itself.' Antitrust law had become a para- dox, argued Judge Bork, because antitrust's basic premises are mutually incompatible.2 Judge Bork believed that the only le- gitimate goal of antitrust is the maximization of consumer wel- fare, but the Supreme Court has introduced conflicting goals into the law.' Certain of its doctrines preserve competition, while others suppress it, resulting in a policy at war with itself. While the Supreme Court has adopted much of Judge Bork's thinking, it has also created a new antitrust paradox by requiring that a plaintiff must suffer a special type of loss-antitrust in- jury-to obtain recovery under the private enforcement provi- sions of antitrust laws. The Supreme Court's treatment of agreements between manu- facturers and their dealers to fix the maximum price the dealer can charge (maximum resale price maintenance) exemplifies the new antitrust paradox. In Albrecht v. Herald Co.,5 the Su- preme Court recognized that agreements to fix maximum prices, 'no less than those to fix minimum prices, cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment.' 6 Consistent with this view, the Su- preme Court held that section one of the Sherman Act7 prohib- ited a newspaper publisher and its dealers from fixing the news- * 0 1991 by Norman W. Hawker. Visiting Professor of Law, Thomas M. Cooley Law School. B.B.A., 1981; J.D., 1985, Uni- versity of Michigan. The author wishes to thank the participants at a faculty forum at the University of Toledo College of Law for their helpful comments on the initial draft of this article. 1. R.H. BORK, THE ANTITRUST PARADox: A POLICY AT WAR WITH ITSELF (1978). 2. Id. at 7. 3. Id. 4. Id. 5. 390 U.S. 145 (1968). 6. Id. at 152 (quoting Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 213 (1951)). 7. 15 U.S.C. § 1 (1988).

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