Was the Crisis in Antitrust a Trojan Horse?
University of Arizona
September 17, 2013
Antitrust Law Journal, 2014, Forthcoming
Arizona Legal Studies Discussion Paper No. 13-48
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 influencing the course of modern 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.” In essence, the Hypothesis attempts to explain mistakes in antitrust history and flaws in present antitrust logic. This Essay examines the Trojan Horse Hypothesis and its relevance to present antitrust policy. It argues that the Hypothesis conflates logic and error and, as such, reflects intellectual decay in antitrust. Further, the Essay argues that the Hypothesis symbolizes a misguided rationalization of errors in antitrust reasoning used by U.S. courts. Specifically, the Essay questions the soundness of rationalizing the vagueness of the “consumer welfare” standard and the secular belief in the theory of “error costs.”
Number of Pages in PDF File: 19
Keywords: Robert Bork, Goals of Antitrust, Consumer Welfare, Efficiency, Error CostsAccepted Paper Series
Date posted: September 19, 2013 ; Last revised: October 14, 2013
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