Was the Crisis in Antitrust a Trojan Horse?

Barak Orbach

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 certain missteps in antitrust history and flaws in present antitrust logic. This Essay examines the Trojan Horse Hypothesis and its relevance to present antitrust policy. The Hypothesis stands for the role flawed economic premises and confusing economic terminology play in modern antitrust. The Essay shows that, while intended to be persuasive, Robert Bork made a few mistakes although did not design an elaborate deception scheme. Bork’s mistakes served his personal biases and were not substantially different from those that are common in other academic works and judicial opinions. The endurance of Bork’s mistakes and their rationalization in modern antitrust, the Essay argues, reflects disturbing intellectual decay of the kind Robert Bork criticized. Antitrust law and analysis will improve once courts and scholars stop pretending that flawed economic premises and confusing terms have merit or can be rationalized.

Number of Pages in PDF File: 19

Keywords: Robert Bork, Goals of Antitrust, Consumer Welfare, Efficiency, Errors, Mistakes

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Date posted: September 19, 2013 ; Last revised: January 20, 2014

Suggested Citation

Orbach, Barak, Was the Crisis in Antitrust a Trojan Horse? (September 17, 2013). Antitrust Law Journal, 2014, Forthcoming; Arizona Legal Studies Discussion Paper No. 13-48. Available at SSRN: http://ssrn.com/abstract=2327364

Contact Information

Barak Orbach (Contact Author)
University of Arizona ( email )
1201 E. Speedway Blvd.
Tuscon, AZ 85721-0176
United States
520-626-7256 (Phone)
520.858.0025 (Fax)
HOME PAGE: http://www.orbach.org

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