Bork’s Strategy and the Influence of the Chicago School on Modern Antitrust Law

Abstract

AbstractThis paper addresses why Robert Bork’s The Antitrust Paradox appears to have had such influence on the Supreme Court, leading the Court to largely adopt the Chicago school analysis of antitrust issues. It attributes this influence to Bork’s endorsement of the per se prohibition of price-fixing—not embraced by all others of the Chicago school—which Bork claimed required the Court to rethink its treatment of vertical restraints. The paper also attributes the influence to Bork’s emphasis on neutral principles for judicial decision making, to Bork’s service as solicitor general, to the delayed publication of his book until after that service, and to the appointment of John Paul Stevens to the Court. Although it has not been generally publicized, Stevens, like Bork, was heavily influenced by Aaron Director and was well aware of the many economic criticisms of the Court’s antitrust opinions published in this Journal.