''The Antitrust Paradox'' is an influential 1978 book by

Robert Bork Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American jurist 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 U.S. Cour ...

that criticized the state of

United States antitrust law In the United States, antitrust law is a collection of mostly federal laws that regulate the conduct and organization of businesses to promote competition and prevent unjustified monopolies. The three main U.S. antitrust statutes are the Sherm ...

in the 1970s. A second edition, updated to reflect substantial changes in the law, was published in 1993. Bork has credited

Aaron Director Aaron Director (; September 21, 1901 – September 11, 2004) was a Russian-born American economist and academic who played a central role in the development of the field Law and Economics and the Chicago school of economics. Director was a profe ...

as well as other economists from the University of Chicago as influences. Bork argues that the original intent of antitrust laws as well as economic efficiency makes consumer welfare and the protection of competition, rather than competitors, the only goals of antitrust law. Thus, while it was appropriate to prohibit

cartel A cartel is a group of independent market participants who collude with each other in order to improve their profits and dominate the market. Cartels are usually associations in the same sphere of business, and thus an alliance of rivals. Mos ...

s that fix prices and divide markets and mergers that create monopolies, practices that are allegedly exclusionary, such as vertical agreements and

price discrimination Price discrimination is a microeconomic pricing strategy where identical or largely similar goods or services are sold at different prices by the same provider in different markets. Price discrimination is distinguished from product differe ...

, did not harm consumers and so should not be prohibited. The

paradox A paradox is a logically self-contradictory statement or a statement that runs contrary to one's expectation. It is a statement that, despite apparently valid reasoning from true premises, leads to a seemingly self-contradictory or a logically u ...

of antitrust enforcement was that legal intervention artificially raised prices by protecting inefficient enterprises from competition. The book has been cited by over a hundred courts. From 1977 to 2007, the Supreme Court of the United States repeatedly adopted views stated in ''The Antitrust Paradox'' in such cases as ''

Continental Television, Inc. v. GTE Sylvania, Inc. ''Continental Television v. GTE Sylvania'', 433 U.S. 36 (1977), was an antitrust decision of the Supreme Court of the United States. It widened the scope of the "rule of reason" to exclude the jurisdiction of antitrust laws. Facts Facing declinin ...

'', 433 U.S. 36 (1977), ''

Broadcast Music, Inc. v. CBS, Inc. ''Broadcast Music Inc. v. Columbia Broadcasting System Inc.'', 441 U.S. 1 (1979), was an important antitrust case decided by the Supreme Court of the United States. Background The TV network CBS (also, at the time, owner of Columbia Records) ...

'', ''

NCAA v. Board of Regents of the University of Oklahoma ''NCAA v. Board of Regents of the University of Oklahoma'', 468 U.S. 85 (1984), was a case in which the Supreme Court of the United States held that the National Collegiate Athletic Association (NCAA) television plan violated the Sherman and Cla ...

'', '' Spectrum Sports, Inc. v. McQuillan'', '' State Oil Co. v. Khan'', '' Verizon v. Trinko'', and ''

Leegin Creative Leather Products, Inc. v. PSKS, Inc. ''Leegin Creative Leather Products, Inc. v. PSKS, Inc.'', 551 U.S. 877 (2007), is a US antitrust case in which the United States Supreme Court overruled '' Dr. Miles Medical Co. v. John D. Park & Sons Co.'' ''Dr Miles'' had ruled that vertical p ...

'', legalizing many practices previously prohibited. ''The Antitrust Paradox'' has shaped antitrust law in several ways, prominently by focusing the discipline on efficiency and articulating its goal as "consumer welfare". Many lawyers and economists, however, have pointed out that Bork was wrong in his analysis of the legislative intent of the

Sherman Antitrust Act of 1890 The Sherman Antitrust Act of 1890 (, ) is a United States antitrust law which prescribes the rule of free competition among those engaged in commerce. It was passed by Congress and is named for Senator John Sherman, its principal author. T ...

and have criticized him for incorrect economic assumptions and analytical errors. One of the key criticisms focuses on Bork's use of the term "consumer welfare", which became the stated goal of American antitrust law. Bork argues that Congress enacted the Sherman Act as a "consumer welfare prescription".Bork (1978) p.66. The Supreme Court embraced this view in ''Reiter v. Sonotone Corp.'', 442 U.S. 330 (1979) and in all subsequent decisions. Many scholars, however, have shown that Congress had several motives for the adoption of the Sherman Act, probably none of which was "consumer welfare". Moreover, Bork's use of the term "consumer welfare" was inconsistent with its use by economists. When the Supreme Court adopted the view that Congress enacted the Sherman Act as a "consumer welfare prescription", it did not define the meaning of the term, which has remained ambiguous.

Publication history

* Bork, Robert H. (1978). ''The Antitrust Paradox''. New York: Free Press. . * Bork, Robert H. (1993). ''The Antitrust Paradox'' (second edition). New York: Free Press. .

References

{{DEFAULTSORT:Antitrust Paradox 1978 non-fiction books Law books Works about competition law