The Antitrust Paradox: A Policy at War With Itself

The Antitrust Paradox: A Policy at War With Itself

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Overview

Since it first appeared in 1978, this seminal work by one of the foremost American legal minds of our age has dramatically changed the way the courts view government's role in private affairs. Now reissued with a new introduction and foreword, this classic shows how antitrust suits adversely affect the consumer by encouraging a costly form of protection for inefficient and uncompetitive small businesses. Robert Bork's view of antitrust law has had a profound impact on how the law has been both interpreted and applied. Lucid, highly readable, and full of rich social and political implications, The Antitrust Paradox illustrates how the purpose and integrity of law can be subverted by those who do not understand the reality law addresses or who seek to make it serve unintended political and social ends.

Product Details

ISBN-13: 9781736089712
Publisher: Bork Publishing LLC
Publication date: 04/12/2021
Pages: 536
Sales rank: 344,200
Product dimensions: 5.50(w) x 8.50(h) x 1.08(d)

About the Author

Robert Heron Bork (March 1, 1927 - December 19, 2012) was an American judge, government official, and legal scholar who served as the Solicitor General of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the influential U.S. Court of Appeals for the D.C. Circuit from 1982 to 1988. In 1987, President Ronald Reagan nominated Bork to the U.S. Supreme Court, but the U.S. Senate rejected his nomination.

Bork was born in Pittsburgh, Pennsylvania. He pursued a legal career after attending the University of Chicago. After working at the law firm of Kirkland & Ellis, he served as a Yale Law School Professor. He became a prominent advocate of originalism, calling for judges to hew to the framers' original understanding of the United States Constitution. He also became an influential antitrust scholar, arguing that consumers often benefited from corporate mergers and that antitrust law should focus on consumer welfare rather than on ensuring competition. Bork wrote several notable books, including The Antitrust Paradox and Slouching Towards Gomorrah.

From 1973 to 1977, he served as Solicitor General under President Richard Nixon and President Gerald Ford, arguing several cases before the Supreme Court. During the October 1973 Saturday Night Massacre, Bork became acting U.S. Attorney General after his superiors in the U.S. Justice Department resigned rather than fire Special Prosecutor Archibald Cox who was investigating the Watergate scandal. Following an order from the President, Bork fired Cox, his first assignment as Acting Attorney General. Bork served as Acting Attorney General until January 4, 1974 and was succeeded by Ohio U.S. Senator William B. Saxbe.

In 1982, President Reagan appointed Bork to the Court of Appeals for the District of Columbia Circuit. After Supreme Court Justice Lewis Powell announced his impending retirement, Reagan nominated Bork to the Supreme Court in 1987, precipitating a contested Senate debate. Opposition to Bork centered on his stated willingness to roll back the civil rights rulings of the Warren and Burger courts and his role in the Saturday Night Massacre. His nomination was defeated in the Senate, with 58 of the 100 Senators opposing his nomination. The Supreme Court vacancy was eventually filled by another Reagan nominee, Anthony Kennedy. Bork resigned his judgeship in 1988 and served as a professor at the George Mason University School of Law and other institutions. He also advised presidential candidate Mitt Romney and was a fellow at the American Enterprise Institute and the Hudson Institute prior to his death in 2012.

Michael Shumway Lee (born June 4, 1971) is an American politician, businessman and attorney serving as the senior United States Senator from Utah. A conservative Republican, Lee has served in the Senate since January 3, 2011.

Lee began his career as a clerk for the U.S. District Court for the District of Utah before clerking for future Supreme Court Justice Samuel Alito, who was then a judge on the Third Circuit Court of Appeals. From 2002 to 2005, Lee was an Assistant United States Attorney for the District of Utah. Subsequently, he joined the administration of Utah Governor Jon Huntsman, serving as the general counsel in the governor's office from 2005 to 2006.

In 2010, during the Tea Party movement, Lee entered the party caucus process to challenge incumbent three-term Republican senator Bob Bennett. He defeated Bennett and business owner Tim Bridgewater during the nominating process at the Utah Republican Party Convention, receiving 1,854 votes in the final round. The two highest caucus performers were then put before primary voters, with Lee winning with 51% of the vote. He then defeated Democratic nominee Sam Granato in the general election with 61% of the vote to Granato's 32%. He was reelected in 2016 and became the dean of Utah's congressional delegation when Representative Rob Bishop retired in January 2021.

Lee chaired the Joint Economic Committee from 2019 to 2021.

Robert H. Bork, Jr., heads the Bork Group, a 18-year-old virtual crisis, litigation, and public affairs agency, which draws from the best, most-experienced, independent communications talent.

Mr. Bork has designed strategies for clients in many high-profile cases and policy battles. His experience includes directing the public affairs strategy in critical issues for Eli Lilly, Google, AT&T, and the U.S. Chamber of Commerce's Institute for Legal Reform, to name just a few.

He began his career as a journalist as a police reporter before moving to business and economics. As a journalist, he covered international economics at U.S. News and World Report, was managing editor of the quarterly journal Regulation, and worked as a reporter at Forbes, The Detroit Free Press, The Fort Worth Star-Telegram and The Miami Herald.

Mr. Bork made the switch to advocacy in 1987 working at the Heritage Foundation, on Capitol Hill as an aide to U.S. Sen. Gordon Humphrey (R-NH), and as special assistant for U.S. Trade Representative Carla Hills. Throughout his career, Mr. Bork has specialized in the development and implementation of communication strategies in crises, litigation, and legal policy. In his many years of experience managing the public environment surrounding high-profile matters, he has worked directly with CEOs, general counsel, and communications executives of major U.S. and international corporations.

Mr. Bork's range of experience includes antitrust, product liability, intellectual property, securities fraud, economic espionage, white-collar crime, mergers and acquisitions, First Amendment and employment discrimination. His work has been on behalf of clients ranging from the automobile industry to pharmaceuticals, computers, software, chemicals, railroads, franchising, telecommunications, insurance, health-care, and former manufacturers of lead pigment. In every matter he has worked directly with the client's legal counsel.

Mr. Bork graduated from Carleton College with a degree in American history. He was a Herbert J. Davenport Fellow in Business and Economic Journalism at the University of Missouri School of Journalism.

He lives in McLean, VA, with his wife (and general counsel) Diana. They have two children.

Table of Contents

NEW INTRODUCTION BY SENATOR MIKE LEE...........................ix

FOREWORD BY ROBERT H. BORK, JR. ...........................................xv

ACKNOWLEDGMENTS............................................................................xxi

PREFACE FROM THE 1993 EDITION............................................xxiii

ACKNOWLEDGEMENTS FROM THE 1993 EDITION ........... xxvi

INTRODUCTION FROM THE 1993 EDITION..................................1

PART 1 THE THEORY

  1. The Historical Foundations of Antitrust Policy............................. 11
  2. The Goals of Antitrust: The Intentions of Congress..................... 47
  3. The Goals of Antitrust: The Responsibility of the Courts............ 71
  4. Business Behavior and the Consumer Interest:
  5. Some Rudiments of Theory ............................................................. 89
  6. The Consumer Welfare Model ...................................................... 107
  7. The Method of Antitrust Analysis ................................................ 117
  8. Injury to Competition: The Law's Basic Theories ....................... 137

PART 2 THE LAW AND THE POLICY

  1. Monopoly and Oligopoly: The Problem of
  2. Horizontal Size by Internal Growth .............................................. 167
  3. The Crash of Merger Policy: The Brown Shoe Decision ................. 203
  4. Horizontal Mergers......................................................................... 223
  5. Vertical Mergers.............................................................................. 231
  6. Conglomerate Mergers................................................................... 253
  7. Horizontal Price Fixing and Market Division.............................. 271
  8. Resale Price Maintenance and Vertical Market Division ........... 289
  9. Exclusive Dealing and Requirements Contracts .......................... 309
  10. "Barriers to Entry" ........................................................................... 321
  11. Boycotts and Individual Refusals to Deal...................................... 343
  12. Predation Through Governmental Processes .............................. 361
  13. Tying Arrangements and Reciprocal Dealing .............................. 381
  14. Price Discrimination ....................................................................... 399

PART 3 SUMMATION

  1. Recommendations........................................................................... 421
  2. Final Thoughts ................................................................................ 425

EPILOGUE TO THE 1993 EDITION .................................................. 445

APPENDIX TO CHAPTERS 13 AND 14 ........................................... 460

NOTES ........................................................................................................... 476

INDEX OF CASES...................................................................................... 495

SUBJECT INDEX ....................................................................................... 498

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