Thursday, October 31, 2013

Was the Crisis in Antitrust a Trojan Horse?

Barak Orbach (Arizona) asks Was the Crisis in Antitrust a Trojan Horse?

ABSTRACT: The Trojan Horse Hypothesis, an unwritten antitrust myth, states that, through the purposeful use of confusing terminology, Robert Bork was able to disguise his conservative agenda as a pro-consumer policy, enlist people who disagreed with or did not endorse this agenda to promote it, and turn it into the law of the land. The hypothesis attempts to explain Robert Bork’s remarkable success in changing the course of antitrust despite the fact that his antitrust philosophy rested on two flawed propositions: (1) that Congress enacted the Sherman Act as “a consumer welfare prescription,” and (2) that “competition must be understood as the maximization of consumer welfare or, if you prefer, economic efficiency.” This Essay examines the foundation of the hypothesis and its relevance to present antitrust policy. It argues that, while Bork’s mistakes were human, their enduring persistence in law and theory is puzzling and disturbing, and in some ways proves Bork’s critique of antitrust.

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