79 Antitrust L.J. 917 (2013-2014)
Antitrust Made (Too) Simple

handle is hein.journals/antil79 and id is 937 raw text is: ANTITRUST MADE (TOO) SIMPLE

CHRISTOPHER R. LESLIE*
Robert Bork fundamentally changed the field of antitrust law with the pub-
lication of his book The Antitrust Paradox in 1978.1 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 vari-
ety of conduct, including resale price maintenance, non-price vertical re-
straints, 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.2 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.3 Some critics
have suggested that the book's influence stems from its circular reasoning,
which is its strength because circular logic is not rebuttable.4 This essay
posits an alternative explanation for Bork's influence: even though Bork was
* Professor of Law, University of California Irvine School of Law. The author thanks Tony
Reese and Su Sun for comments; the organizers of this Bork Symposium-Barak Orbach and
Danny Sokol; and the members of the Advanced Antitrust Working Group at Chicago-Kent
College of Law-Leo Carameli, John Guzzardo, Christopher Haggerty, Jason Hirsh, and
Michael Kasdin.
1 ROBERT H. BORK, THE ANTITRUST PARADOx: A POLICY AT WAR WITH ITSELF (rev. ed.
1993).
2 See, e.g., RUDOLPH J.R. PERITZ, COMPETITION POLICY IN AMERICA: HISTORY, RHETORIC,
LAw 258 (rev. ed. 1996) (referring to The Antitrust Paradox as probably still the most influen-
tial book about antitrust policy.); William E. Kovacic, The Antitrust Paradox Revisited: Robert
Bork and the Transformation of Antitrust Policy, 36 WAYNE L. REv. 1413, 1417 (1990) (Since
1890, no single scholarly work has exerted a greater influence than The Antitrust Paradox on the
direction of antitrust policy.).
3 Another reason that The Antitrust Paradox has been so influential is that Bork had the
ability to implement the ideas espoused in his book as a federal judge for the D.C. Circuit.
4 PERITZ, supra note 2, at 244 (stating that Bork begins with the assumption that consumers
maximize their welfare and ends with the conclusion that what is chosen [by consumers] maxi-
mizes 'consumer welfare.').

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