THE ANTITRUST PARA-DOX: A Policy at War with Itself

An elegant brief for reform of federal antitrust policy, which argues that enforcement officials and the courts have sacrificed the original legislative goal of maximizing consumer welfare to unproductive reform. Bork, who is back teaching law at Yale after serving as US Solicitor General during the Nixon and Ford administrations, makes a case that will delight conservatives and challenge liberals. Productive efficiency, he contends, should be the single most important factor in judging consumer welfare. Failure to do so, along with the judiciary's tendency to ""view efficiency as pernicious by calling it a barrier to entry or a competitive advantage,"" the author believes is the major reason antitrust doctrine jumped the narrow track it was assigned in the 1890 Sherman Act. In particular, he is averse to protecting uncompetitive and/or inefficient firms on the basis of their size. ""The imminent concentration of. . . ownership in a few giant corporations, with the concomitant demise of small business, is the standard, Mark I, all-weather antitrust hobgoblin,"" Bork remarks. But he is not an economic nÄif contending that big is invariably beautiful. Rather than penalize corporate efficiency, he would concentrate enforcement attention on instances of clearly dirty business. Namely: rivals that fix prices or divide markets; mergers that lead to outsized market shares (e.g., those that leave fewer than three significant competitors in a field); and deliberately predatory behavior designed to drive or keep rivals from a market. The text includes a lot of case law, but Bork's consistently graceful style makes most citations accessible to lay readers. Commenting on the Supreme Court's Brown Shoe decision, he notes: ""It is not merely a bad case, it also is a trend setter--as if the poems of E. A. Guest had determined the course of modern literature."" Legal and business scholars will find Bork's work must reading. But this landmark book deserves and should win a wider audience among the consuming public--pro or con.