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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:
William E. Kovacict
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
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).


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