EDITOR S NOTE: ROBERT BORK, ORIGINALISM, AND BOUNDED ANTITRUST

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1 EDITOR S NOTE: ROBERT BORK, ORIGINALISM, AND BOUNDED ANTITRUST ADAM J. DI VINCENZO* It is difficult to overstate Robert Bork s impact on law and politics in the second half of the 20th century. As most readers of this Symposium are aware, Bork is widely credited with upending long-standing principles governing the aims and methods of antitrust law and policy. His assault on the prevailing antitrust regime began with his landmark 1966 article, Legislative Intent and the Policy of the Sherman Act, which along with his later works, made the term consumer welfare the lodestar of the Sherman Act. 1 Over the ensuing decades, through his scholarly works, Bork continued to challenge prevailing doctrines applicable to horizontal and vertical restraints, mergers, and other areas. The publication of his 1978 treatise, The Antitrust Paradox, a tour de force that brilliantly integrated Chicago School economics into a cogent body of antitrust jurisprudence, marked a tipping point. 2 As George Priest observes, The Antitrust Paradox changed the direction of antitrust law by systematically applying economic analysis to the legal issues that face courts in antitrust litigation. 3 And while Bork was certainly not alone in advocating for this reorientation, his prominent role in shaping modern antitrust law is beyond dispute. * Member of the District of Columbia Bar and co-symposium Editor for this issue. The editors of the Antitrust Law Journal thank Barak Orbach, George Priest, and Danny Sokol for organizing the symposium that formed the basis for the work published in this issue. The author thanks Jeff Vernon for his helpful comments and research assistance on this article. 1 Robert H. Bork, Legislative Intent and the Policy of the Sherman Act, 9 J.L. & ECON. 7 (1966) [hereinafter Bork, Legislative Intent]. 2 See ROBERT H. BORK, THE ANTITRUST PARADOX: A POLICY AT WAR WITH ITSELF (rev. ed. 1993). 3 George L. Priest, The Abiding Influence of The Antitrust Paradox: An Essay in Honor of Robert H. Bork, 31 HARV. J.L. & PUB. POL Y 455, 458 (2008) [hereinafter Priest, Abiding Influence] Antitrust Law Journal No. 3 (2014). Copyright 2014 American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

2 822 ANTITRUST LAW JOURNAL [Vol. 79 Of course, Bork s influence extended well beyond the antitrust realm. Following successful stints in private practice and academia as a professor at Yale Law School, President Nixon nominated Bork to serve as U.S. Solicitor General in March As Solicitor General, he argued successfully that the death penalty did not violate the Eighth and Fourteenth Amendments of the Constitution in Gregg v. Georgia, 4 and he earlier persuaded the Supreme Court to adopt the Nixon administration s position in Milliken v. Bradley, 5 an important desegregation decision. Furthermore, in the midst of the rapidly unfolding Watergate scandal in October 1973, it was Bork, left as acting head of the Department of Justice following the sudden resignations of Attorney General Elliott Richardson and Deputy Attorney General William Ruckelshaus, who at the behest of Nixon made the fateful and historic decision to fire Special Prosecutor Archibald Cox. 6 The events of October 1973 would not be the last time Bork was thrust into the national limelight in a historic political controversy. Neither his prominent role in the Saturday Night Massacre, nor his accomplishments as an advocate and judge came to define Bork s legacy. To most, Bork will be remembered as the subject of Senate hearings examining his nomination to the Supreme Court in Bork s failure to win Senate confirmation to the Court did not turn on his qualifications. Echoing the sentiments of many across the political spectrum, Judge Richard Posner described Bork as probably the best qualified nominee for the Supreme Court in the last 71 years. 7 President Reagan s first two nominees to the Court, Sandra Day O Connor and Antonin Scalia, had each gained Senate confirmation without a single dissenting vote. 8 To the surprise of many including Bork himself 9 Bork s confirmation hearings quickly evolved into a nationwide debate on the future ideological U.S. 153 (1976); see also Steven G. Calabresi, In Memoriam: Robert H. Bork, 36 HARV. J.L. & PUB. POL Y 1235, 1235 (2013) U.S. 717 (1974). 6 Bork recalls that in firing Cox, he was called upon to step out of [his] role as [S]olicitor [G]eneral in order to keep[ ] government running and manage[ ] a transfer of power that would have shattered many nations. ROBERT H. BORK, SAVING JUSTICE: WATERGATE, THE SAT- URDAY NIGHT MASSACRE, AND OTHER ADVENTURES OF A SOLICITOR GENERAL (2013) [hereinafter BORK, SAVING JUSTICE]. 7 Richard A. Posner, Why Didn t Robert Bork Reach the Supreme Court?, SLATE (Dec. 19, 2012, 6:34 PM), robert_bork_dead_why_didn_t_he_reach_the_supreme_court.html. 8 Justice O Connor was confirmed in 1981 by a 99-0 vote; Justice Scalia was confirmed just a year before Bork s nomination, in 1986, by a vote of See Supreme Court Nominations, present 1789, UNITED STATES SENATE, Nominations.htm. 9 See BORK, SAVING JUSTICE, supra note 6, at 116 ( When President Reagan nominated me for the Supreme Court in 1987, I thought my confirmation was a sure thing. ).

3 2014] EDITOR S NOTE 823 composition of the Court and the role of the Constitution in deciding important social issues. Despite the Reagan Administration s efforts to portray Bork as a moderate jurist in the tradition of Justice Powell, whom Bork was nominated to replace, 10 Democrats in control of the Senate viewed Bork as a strident conservative who threatened to fundamentally change the Court s direction in the areas of abortion, race relations, and other controversial issues. Shortly after his nomination, Senator Edward Kennedy took to the floor of the Senate and delivered what proved to be one of the most indelible attacks on Bork s nomination. In a speech entitled Bork s America, Kennedy alleged that with the current delicate balance of the Supreme Court, [Bork s] rigid ideology will tip the scales of justice against the kind of country America is and ought to be. 11 Kennedy s speech caught Bork s supporters off guard and defined Bork to a nation that was largely unfamiliar with him, ultimately leading the Senate to reject his nomination. Senator Kennedy and other opponents successfully personified Bork as the standard bearer of a larger conservative movement to change the direction of the federal judiciary. Bork s nomination became a public referendum on whether the court should move decisively to the right or stay basically the same. The status quo won out. 12 The rest is history. To this day, in part due to what some view as the caricatures of his legal philosophy presented at his Senate hearings, 13 Bork is regularly portrayed as a polarizing figure. 14 The articles in this Symposium examine Bork s legacy as an antitrust scholar, and for good reason his legacy in antitrust is largely insulated from this public persona. While Bork s core contributions to antitrust law are hotly debated in these pages, the notion that Bork s ideas and writings permanently altered the antitrust landscape as we know it is fairly uncontroversial. It is safe to say that while his antitrust writings left substantial room for interpretation and disagreement, he is widely viewed as a seminal figure. The concepts he was among the first to articulate and promote particularly the concept of 10 Stephen V. Roberts, Reagan, Opening Bork Fight, Calls Bork a Moderate, N.Y. TIMES, July 30, 1987, at A CONG. REC. 18, (1987). 12 Linda Greenhouse, Robert Bork s Tragedy, N.Y. TIMES (Jan. 9, 2013, 9:00 PM), opinionator.blogs.nytimes.com/2013/01/09/robert-borks-tragedy/?_php=true&_type=blogs&_php= true&_type=blogs&_r=1. 13 Jeffrey Rosen, We re Still Paying the Price for the Borking of Robert Bork, NEW REPUBLIC (Dec. 19, 2012), ( Bork s record was distorted beyond recognition, and his name was transformed from a noun into a verb. ). 14 Daniel Fisher, Robert Bork, The Man Who Redefined Antitrust, Is Dead at 85, FORBES (Dec. 19, 2012, 11:44 AM), Op-Ed., Robert Bork, Romney Standard-Bearer, N.Y. TIMES, Apr. 27, 2012, at A26 ( Robert Bork has been among the most divisive figures in American law. ).

4 824 ANTITRUST LAW JOURNAL [Vol. 79 consumer welfare today serve as first principles of modern antitrust parlance. Yet, a striking aspect of Bork s contributions to antitrust law is how much of this work draws from the principles underlying his constitutional law scholarship, namely his deeply rooted views on the limits of the judicial role and the appropriate methods for applying broadly worded authoritative text to real-world problems. He attempted to define the boundaries of constitutional and antitrust law by crystalizing what goals each should aim to achieve and by imposing clear but flexible legal standards judges could apply to complex cases. His ideas on constitutional law, though far more controversial, were in this fundamental way bound together with his views on the appropriate goals of the Sherman Act. Nevertheless, perceptions of Bork in and outside the antitrust realm stand in stark contrast. I. CONSUMER WELFARE: ANTITRUST S ORIGINALISM Bork is well-known for espousing a theory of interpretation originalism which he described as the only legitimate basis for constitutional decision making. 15 Throughout his speeches and academic works, Bork repeatedly invoked the principle that judicial authority stems from the written words of the authoritative text, to be guided by the intent of its framers. Bork argued that the authoritative text does not merely delegate power to judges, allowing them to employ their respective conceptions of morality to decide the cases before them. Rather, in deciding cases, judges must apply the law according to the intentions of those who drafted, proposed, and ratified its provisions and its various amendments. 16 The right to privacy decisions of the Warren Court were among Bork s favorite targets as illustrations of how, in Bork s view, the Court often wandered beyond the bounds of the judicial role to make decisions reserved for the political branches. He famously criticized Justice William O. Douglas s majority opinion in Griswold v. Connecticut, 17 which he argued expanded provisions of the Bill of Rights beyond the known intentions of the Framers to cover a previously unprotected right of personal privacy (which in that case, invalidated the state s law against the use of contraceptives). 18 Bork believed that in order to avoid becoming legislators by enforcing their 15 Robert H. Bork, Original Intent: The Only Legitimate Basis for Constitutional Decision Making, JUDGES J., Summer 1987, at 13, 13 [hereinafter Bork, Original Intent.] 16 Id. at U.S. 479 (1965). 18 Bork, Original Intent, supra note 15, at 16.

5 2014] EDITOR S NOTE 825 own moral predilections, judges must limit themselves to the historic intentions underlying each clause of the Constitution. 19 As a public figure, Bork was undoubtedly an extremely effective proponent of originalism and other conservative constitutional ideals. As Akil Amar, a prominent constitutional scholar and one of Bork s former students explains: [Bork] did have one big constitutional idea, namely, that original intent should play an important role in constitutional decision-making. Though Bork was hardly the first or the best to put forth this theory, he used his notoriety to popularize it. Many scholars and judges in the late 1960s and throughout the 1970s had begun to talk and act as if the original purposes of the Constitution s founders and amenders were almost irrelevant to serious constitutional analysis in the modern world. Bork thought otherwise, and loudly proclaimed that scholars and judges must pay heed to original understandings. 20 Bork s views on constitutional interpretation were well-known, but hardly revolutionary or novel. He espoused a return to first principles of legal interpretation namely, that decisions on constitutional and other legal issues should be tethered to some form of legal authority, whether the authority was the text of the applicable constitutional provision or statute, or the intent of its drafters. But he is not credited with spurring a comprehensive reordering of the field of constitutional interpretation. 21 Principles of judicial restraint based on original intent of the Sherman Act s framers are pervasive in Bork s antitrust writings, where he employed familiar originalist principles to divine the policy goals of the Sherman Act. His Legislative Intent and Policy of the Sherman Act, based on a detailed analysis of the legislative events preceding the passage of the statute in 1895, argues that the sole policy Congress intended the courts to apply in antitrust cases is the maximization of... consumer want satisfaction, or what Bork dubbed consumer welfare. 22 He reasoned that supporters of the Sherman Act legislation frequently cited the principles underlying consumer welfare. He explained that by incorporating into the new law prohibitions against price fixing, mergers, and business practices only to the extent that such practices threatened to artificially restrict output and harm consumers, Congress sought to avoid imposing restrictions that would discourage output-enhancing and otherwise procompetitive commercial activities. And while Bork concedes that legisla- 19 Id. at Akhil Reed Amar, Remembering Bork, SLATE (Dec. 20, 2012, 12:16 PM), articles/news_and_politics/jurisprudence/2012/12/robert_bork_s_death_learning_from_him_ and_proving_him_wrong.html. 21 John O. McGinnis, Robert Bork: Intellectual Leader of the Legal Right, 80 U. CHI. L. REV. DIALOGUE 235, 238 (2013) [hereinafter McGinnis, Robert Bork: Intellectual Leader]. 22 Bork, Legislative Intent, supra note 1, at 7.

6 826 ANTITRUST LAW JOURNAL [Vol. 79 tive support for the Sherman Act came from those who sought to promote values other than consumer welfare, such as the protection of small businesses and other social policy aims, Bork argued that the Sherman Act relegated these goals to a secondary status because pursuing them could be detrimental to consumer welfare. In short, [n]ot only was consumer welfare the predominant goal expressed in Congress but the evidence strongly indicate[d] that, in case of conflict, other values were to give way before it. 23 Bork s characterization of the Sherman Act s goals and legislative history is the subject of much debate in this Symposium. 24 Irrespective of whether one agrees with Bork s conclusions (as many courts have), it is apparent that his views on the Sherman Act s origins were in large part a reaction to what Bork saw as a pattern of judicial overreach in antitrust cases. Bork was highly suspicious of claims that, in passing the Sherman Act, Congress conferred a broad mandate on an unelected, somewhat elitist, and undemocratic judicial institution, 25 and regularly complained of judges who characterized antitrust [as]... a cornucopia of social values, all of them rather vague and undefined but infinitely attractive. 26 Just as Bork argued that Justice Douglas s constitutional analysis in Griswold violated originalist principles, he targeted Judge Learned Hand s assertion in United States v. Associated Press that the Sherman Act delegated to the courts the duty of fixing the standard for each case. 27 The case involved a challenge to the by-laws of the Associated Press (AP), an association of 1200 newspapers representing over 96 percent of U.S. newspaper circulation. The bylaws at issue prevented (or at least significantly impeded) competing newspapers from joining the organization and prohibited member newspapers from disclosing certain news content to non-members. An analysis of the facts based on consumer welfare, the analysis adopted by the Supreme Court on appeal, 28 would have examined the extent to which the 23 Id. at Christopher Leslie argues that Bork s claims regarding the consumer welfare standard rest on weak evidence and an oversimplification of the prevailing legal landscape, and that there is now a clear consensus among historians and scholars that Bork overstated his case on the Sherman Act. Christopher R. Leslie, Antitrust Made (Too) Simple, infra this issue, 79 ANTITRUST L.J. 917, 924 (2014). Daniel Crane offers a modest defense of Bork s thesis, positing that, in writing about the Sherman Act, Bork relied on sound interpretive tools and arguments grounded in judicial restraint. Daniel A. Crane, The Tempting of Antitrust: Robert Bork and the Goals of Antitrust Policy, infra this issue, 79 ANTITRUST L.J. 835, 836 (2014). 25 Robert H. Bork, The Goals of Antitrust Policy, 57 AM. ECON. REV. (PAPERS & PROC.) 242, 243 (1967). 26 BORK, supra note 2, at Id. at 53 (quoting United States v. Associated Press, 52 F. Supp. 362, 370 (S.D.N.Y. 1943), aff d, 326 U.S. 1 (1945)). 28 Associated Press v. United States Tribune Co., 326 U.S. 1, (1945).

7 2014] EDITOR S NOTE 827 AP s bylaws harmed competition between newspapers and reduced output or raised prices. Judge Hand took a very different approach, asserting that Congress intended the Sherman Act to be a legislative warrant to the judiciary, allowing judges to appraise and balance the value of opposed interests and to enforce their preference. 29 Hand declared the AP s bylaws unlawful under the Sherman Act, not because they unreasonably restrained competition between the AP s members, but because they ran contrary to the dissemination of news from as many different sources, and with as many different facets and colors as is possible, a goal that is closely akin to... the interest protected by the First Amendment. 30 Bork also took issue with Judge Hand s conclusion in United States v. Aluminum Co. of America (Alcoa) condemning monopolies regardless of their economic results, that is, based upon the belief that great industrial consolidations are inherently undesirable. 31 In Alcoa, Judge Hand concluded that the defendant s large market position in virgin aluminum ingot amounted to unlawful monopolization in violation of Section 2 of the Sherman Act. Bork pointed out that there was no evidence that Alcoa had achieved this position by merger or predation, and characterized Hand s approach in both Associated Press and Alcoa as appropriating a value-choosing role... on behalf of the federal judiciary, leaving businesses and courts with no criteria for the prediction and decision of future cases. 32 According to Bork, Judge Hand s rulings ignored the original intent of the Sherman Act by applying values that conflicted with consumer welfare. Many courts have followed Bork s lead, and there is now substantial agreement that judges confronted with antitrust cases are not to engage in the value-choosing role contemplated by Judge Hand. 33 Paradoxically, a second parallel between Bork s originalism and his conception of consumer welfare is the substantial flexibility he left judges to apply this broadly defined prescription to the cases before them. While he enthusiastically identified methods judges should not employ in deciding constitutional matters, such as Justice Douglas s assessment in Griswold, Bork did not specifically define his preferred methodology for divining the original understanding of constitutional text. 34 Echoing a common critique of Bork, 29 Associated Press, 52 F. Supp. at Id. at Bork, Legislative Intent, supra note 1, at 8 (emphasis omitted) (quoting United States v. Aluminum Co. of Am., 148 F.2d 416, 428 (2d Cir. 1945)). 32 Id. at See, e.g., NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 107 (1984); Arizona v. Maricopa Cnty. Med. Soc y, 457 U.S. 332, 367 (1982); Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979) ( Congress designed the Sherman Act as a consumer welfare prescription. ). 34 McGinnis, Robert Bork: Intellectual Leader, supra note 21, at 239 ( [Bork] did not provide substantial scholarship on important questions of methodology like whether originalism is best

8 828 ANTITRUST LAW JOURNAL [Vol. 79 one scholar observed that [t]o say that the highest norm in this country is the Constitution s text is only the beginning of the analysis. 35 While Bork was quick to offer a critique, he did not articulate clear solutions for resolving difficult cases based on inconclusive language in the Constitution or a discernible intent of its framers. Likewise, although The Antitrust Paradox ended the debate over the stated goals of antitrust law, it also opened a new debate over the meaning of the term consumer welfare. 36 Again, Bork did not shy away from voicing his opinion on how certain antitrust cases should be decided. Bork lucidly explains which values are not consumer welfare for example, the protection of small firms irrespective of whether they are more or less efficient than their larger rivals, or the nebulous First Amendment concerns embraced by Judge Hand in Associated Press. Bork argued the antitrust laws were designed to promote allocative efficiency and expressed a preference for competition over monopoly. 37 However, as extensive as they were, Bork s antitrust works did not leave courts or practitioners with clear answers on how to distinguish efficiency-enhancing practices from anticompetitive conduct in many areas, and often used contradictory terminology in describing the relevant economic concepts. As Barak Orbach points out, Bork explicitly equated the term consumer welfare with the wealth of the nation, a term that economists would understand as social welfare, and which contemplates interests that are broader than those of consumers. 38 Left with substantial uncertainty as to what Bork meant by consumer welfare, the courts often adopted and applied their own definitions. 39 understood through original intent or original public meaning or describe in substantial detail the proper relation between originalism and precedent. ). 35 John Harrison, Robert Bork, Judicial Creativity, and Judicial Subjectivity, 80 U. CHI. L. REV. DIALOGUE 205, 206 (2013). 36 Barak Y. Orbach, The Antitrust Consumer Welfare Paradox, 7 J.L. & COMPETITION ECON. 133, 136 (2010) [hereinafter Orbach, Consumer Welfare]. 37 BORK, supra note 2, at ( Consumer welfare is greatest when society s economic resources are allocated so that consumers are able to satisfy their wants as fully as technological constraints permit.... The [antitrust] law s mission is to preserve, improve, and reinforce the powerful economic mechanisms that compel businesses to respond to consumers. ). 38 Orbach, Consumer Welfare, supra note 36, at Id. at 150. For example, the Supreme Court addressed the consumer welfare standard in two cases involving alleged predation, Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993) and Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 549 U.S. 312 (2007). Id. The Court noted that although predatory practices may be undesirable from a social welfare perspective, lower prices are a boon to customers and are therefore lawful unless the alleged predator succeeds in excluding competition and recouping its losses by raising prices. Id. (citing Weyerhaeuser, 549 U.S. at ; Brooke Group, 509 U.S. at ). Orbach observes that the Court appears to believe that the consumer welfare standard is about consumers, rather than about efficiency or the broader social welfare aims contemplated by Bork. Id.

9 2014] EDITOR S NOTE 829 II. BORK S CONSUMER WELFARE AND BOUNDED ANTITRUST Despite its flaws, Bork s conception of consumer welfare appeals to judges and enforcers because it presents a clear and (at least in theory) politically neutral legal standard, which was sorely lacking in many of the antitrust decisions of his day. 40 Bork s crowning achievement was his creation of a unifying antitrust legal standard that was compatible with his view of the judicial role. The institutional analysis of the competence of courts perspective that is pervasive throughout The Antitrust Paradox and his other antitrust writings provide a consistent, normatively defensible, and politically removed standard for courts to apply to difficult and complex cases. 41 Consumer welfare plays, and continues to play, a central role in defining antitrust policy debates, even if it did not resolve them. When The Antitrust Paradox was published in 1978, antitrust policy was in the midst of a dramatic shift, driven by perceived judicial overreach and a broader political movement toward deregulation that came to fruition in the 1980s. Within a few years, ideas promoted by Bork and his Chicago School contemporaries began to take hold throughout the federal judiciary and enforcement agencies. Court decisions involving horizontal and vertical restraints, predatory pricing, and mergers were increasingly based on economic principles, to the exclusion of social policy goals (such as protection of small business and First Amendment values). At the time, aspects of the transition to this Chicago School era in antitrust suggested to some that a more radical non-enforcement agenda was in motion. 42 Indeed, in addition to reducing the investigative resources of federal antitrust enforcers and curtailing enforcement during much of the 1980s, the Reagan Administration pushed wide-ranging new antitrust legislation... seeking to circumscribe the scope of various antitrust doctrines and remedies. 43 Antitrust enforcement remains alive and well, of course. And neither Bork nor any other prominent member of the Chicago School can fairly be viewed as having embraced a non-enforcement agenda that would allow plainly anticompetitive cartels, mergers, or business practices. Bork never questioned the existence of antitrust or antitrust enforcement. He instead objected to what 40 Douglas H. Ginsburg, Originalism and Economic Analysis: Two Case Studies of Consistency and Coherence in Supreme Court Decision Making, 33 HARV. J.L. & PUB. POL Y 217, (2010) ( The Court had read into the Sherman Act an assortment of vague and, ironically, anti-competitive social and political goals, such as protecting small traders from their larger, impersonal (and more efficient) rivals. ). 41 Priest, Abiding Influence, supra note 3, at Jonathan B. Baker, Competition Policy as a Political Bargain, 73 ANTITRUST L.J. 483, (2006). 43 Id. at ( Budgets at the federal antitrust agencies declined substantially during the 1980s, and staffing fell by nearly half. ).

10 830 ANTITRUST LAW JOURNAL [Vol. 79 he saw as the movement... away from legislative decision by Congress and toward political choice by the courts. 44 He also advocated for legal standards that incorporated economic reasoning, which hardly seems like a radical approach today. In other words, Bork sought to clarify and focus antitrust, not to dismantle it. In looking back on the 15 years following the publication of The Antitrust Paradox, Bork wrote in 1993 that he had witnessed a revolution in antitrust that transformed it from social policy to merely law. 45 This was no small achievement. Bork provided courts with the doctrinal foundation to establish consumer welfare as the defined sphere of influence for antitrust law. Within the metes and bounds of consumer welfare, there is certainly debate and controversy, but there is little disagreement that antitrust does not protect an aggrieved competitor because it faces competition from a more efficient rival, or an excluded media outlet simply because it is inhibited from exercising vaguely defined First Amendment rights, absent a showing that the alleged conduct also harmed competition and consumers. Courts now routinely dismiss antitrust cases if the alleged loss does not result from a competitionreducing aspect or effect of the alleged conduct. 46 It may be that a business practice goes beyond the bounds of fairness or commonly held conceptions of morality, but if the practice does not harm the competitive process or consumers by raising market prices or reducing output, it is not condemned by the antitrust laws. To illustrate the enduring influence of Bork s idea, the primacy of consumer welfare plays a significant role in framing the terms of a contemporary debate about an old law. Section 5 of the Federal Trade Commission Act, which among other practices prohibits unfair methods of competition, traditionally has been interpreted to apply to conduct that does not violate the Sherman Act. 47 The FTC s Section 5 cases often address important questions regarding the outer limits of antitrust in areas such as invitations to collude and practices by owners of patents covering technology essential to practicing 44 BORK, supra note 2, at ix x (New Introduction: The Passing of the Crisis in the 1993 ed.). 45 Id. at x. 46 Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990); see also Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977); Sterling Merch., Inc. v. Nestle, S.A., 656 F.3d 112, 121 (1st Cir. 2011) (dismissing antitrust claim because the plaintiff failed to show that the market... suffered a reduction in output or increase in consumer prices ); Cont l Airlines, Inc. v. United Airlines, Inc., 277 F.3d 499, 508, (4th Cir. 2002) (stating that the plaintiff failed to show that the defendant s conduct had an effect on price or output, and therefore did not meet the antitrust injury requirement). 47 FTC v. Ind. Fed n of Dentists, 476 U.S. 447, 454 (1986) (explaining that Section 5 encompasses traditional antitrust violations and practices that the Commission determines are against public policy for other reasons. ).

11 2014] EDITOR S NOTE 831 industry standards. 48 However, to date, neither the judiciary nor the FTC has defined the precise legal standard under Section 5, nor has the FTC provided robust guidance on what practices are prohibited or permissible. This uncertainty has triggered a contemporary debate about the limits and goals of the antitrust laws. Recent Section 5 cases brought by the FTC have generated fervent dissents from Commissioners, who are quick to highlight the FTC s failure to articulate limiting principles, 49 fueling uncertainty where the conduct at issue appears to be lawful under other antitrust statutes. 50 On one side of the debate, Edith Ramirez, the current FTC Chairwoman, is a proponent of administrative flexibility in the Commission s Section 5 decision making, and cautions against erring on the side of rigidity by announcing specific categories of conduct prohibited by Section On the other side, Commissioners Wright and Ohlhausen have been forceful advocates of clarifying and specifying the standards and limitations of the FTC s Section 5 authority. 52 Significantly, both sides of this otherwise contentious debate are careful to ground their arguments in terms of maximizing consumer welfare. Both sides agree that Section 5, as an antitrust law, should be directed at practices that harm consumers and competition, and not towards broader social or industrial policy goals See, e.g., Complaint, Motorola Mobility LLC, FTC File No (July 23, 2013) (alleging Google breached commitments to license standard-essential patents on fair, reasonable, and non-discriminatory terms by seeking to enjoin willing licensees of its patents, in violation of Section 5 of the FTC Act); Complaint at 1, U-Haul Int l, FTC File No (July 14, 2010) (alleging that U-Haul invited its closest competitor to join a collusive scheme to raise rates for one-way truck rentals, in violation of Section 5 of the FTC Act). 49 See, e.g., Statement of Comm r Maureen K. Ohlhausen at 3, Robert Bosch GmbH, FTC File No (Nov. 26, 2012) ( Before invoking Section 5 to address business conduct not already covered by the antitrust laws... the Commission should fully articulate its views about what constitutes an unfair method of competition. ). 50 See, e.g., Dissenting Statement of Chairman Majoras at 2, Negotiated Data Solutions LLC, FTC File No , (Jan. 23, 2008) (stating that a stand-alone violation of the FTC Act is not advisable as a matter of policy or prosecutorial discretion absent evidence that conduct violated Section 2 of the Sherman Act). 51 Edith Ramirez, Chairwoman, Fed. Trade Comm n, Unfair Methods and the Competitive Process: Enforcement Principles for the Federal Trade Commission s Next Century 7 (Feb. 13, 2014). 52 See Statement of Comm r Joshua D. Wright, Fed. Trade Comm n, Proposed Policy Statement Regarding Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act 2 (June 19, 2013) ( In order for enforcement of its unfair methods of competition authority to promote consistently the Commission s mission of protecting competition, the Commission must articulate a clear framework for its application. ). 53 See Ramirez, supra note 51 (stating that the FTC s Section 5 authority is based on the protection of consumer welfare and the competitive process); Maureen K. Ohlhausen, Section 5 of the FTC Act: Principles of Navigation, 2 J. ANTITRUST ENFORCEMENT 1, 6 7 (2014) ([Unfair methods of competition] should focus only on economic efficiency goals, not social goals, such as increased employment or better working conditions, or industrial policy goals, such as favoring domestic competitors. ); Wright, supra note 52, at 7 ( The legislative history of the FTC Act

12 832 ANTITRUST LAW JOURNAL [Vol. 79 The debate surrounding Section 5 is illustrative of Bork s continuing role in redefining what antitrust means and what its boundaries are. While a consensus view of what specific limiting principles should apply to the FTC s Section 5 powers has proven elusive, there is agreement that applications of Section 5 should be closely tied to consumer welfare. There are divergent perspectives as to how best to promote consumer welfare, and under what circumstances Section 5 intervention is warranted. But absent from the debate are contentions that Section 5 enforcement should go beyond the boundaries of consumer welfare by protecting small business, promoting employment, or ensuring a diverse array of media outlets. 54 The widespread consensus that consumer welfare serves as the overarching limiting principle for antitrust law demonstrates how Bork s shadow over modern antitrust debates looms large. III. CONCLUSION Outside of antitrust, Bork will be remembered as a towering conservative intellect and public figure, as a legendary professor and judge, for his pivotal role in the infamous 1973 Saturday Night Massacre and for his failed Supreme Court nomination. But his notoriety tells only part of the story. While Bork remains a polarizing political figure, his antitrust works have gained ardent support from judges and policy makers across the political spectrum because they filled a void by providing legal standards with a strong foundation in economic principles. While some argue that Bork s view of the antitrust laws is narrower than its framers intended, his version of antitrust and consumer welfare has gained widespread acceptance because it is sufficiently broad and flexible to address the dynamic competition concerns of a modern economy. To antitrust lawyers and economists, Bork does not personify the rigid ideology that Senator Kennedy identified him with over 25 years ago. Instead, within antitrust, Bork is identified with the notion that antitrust laws are defined legal standards that promote consumer welfare while recognizing the institutional limitations of the courts. While he was pleased by the antitrust revolution he oversaw in the 15 years following the publication of The Antitrust Paradox, Bork embraced a far dimmer view of the trajectory of constitutional law. He wrote that despite the proliferation of originalist principles, constitutional law is increasingly... little more than a cultural and political playground for judges and professors. 55 He lamented that political judging, judging unrelated to law... has supports the notion that harm to competitors alone is insufficient for a business practice to be declared unfair.... ). 54 To be sure, Bork himself, if he were alive today, might have weighed in on the side of Commissioners Ohlhausen and Wright to the extent their positions promote certainty and clear, defensible legal standards. 55 BORK, SAVING JUSTICE, supra note 6, at 122.

13 2014] EDITOR S NOTE 833 greatly accelerated in the past few decades and now we see the theorists of constitutional law urging judges on to still greater incursions into Americans right of self-government. 56 And he viewed this movement as inextricably intertwined with what he saw as broader moral and social decay. This broader social commentary, which became particularly prominent in his writings later in life, further marginalized Bork in the decades following his Senate hearings. While Bork continues to be viewed by many as a divisive figure in constitutional law and the political sphere, antitrust scholars, enforcers, and advocates regularly cite Bork in support of their positions. An overarching theme throughout this Symposium is that although debate over many of Bork s ideas continues, his work in antitrust serves as the foundation for an enduring consensus on the goals antitrust should aim to achieve, what the limits of antitrust are, and how judges and enforcers should approach antitrust problems. To be sure, there remains substantial disagreement within the antitrust bar over important ideas, including the precise meaning of consumer welfare and the ends it serves. But there is also agreement that consumer welfare is the ultimate goal, and that economic principles and the limitations of the judicial role guide (or, at least, should guide) the outcomes of antitrust cases. 56 ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 351 (1990).

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