22 Pages Posted: 19 Sep 2013 Last revised: 1 Nov 2014
Date Written: October 30, 2014
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 did not endorse this agenda to promote it, and turn it into the law of the land. The terminology itself built on a set of flawed economic premises and an incorrect account of the legislative history of the Sherman Act. In 1979, the Supreme Court adopted Bork’s confusing terminology without any meaningful scrutiny. With the terminology, the Court also adopted its flawed premises. In the decades that have followed the adoption of the “consumer welfare” standard, the Supreme Court has been increasingly using concerns regarding false-positive errors in antitrust to justify the use of procedural hurdles to narrow the scope of antitrust. This trend has several layers and explanations, including the confusing terminology and flawed premises that the Court itself adopted.
This Essay studies the Trojan Horse Hypothesis, its validity, and its significance to modern antitrust policy. It shows that the Hypothesis credits Bork for the unexpected willingness of the Supreme Court to adopt a set of misguided premises and to maintain them, and as such it is somewhat weak. The Hypothesis, however, emphasizes layers of errors and confusion in antitrust law and jurisprudence.
Keywords: Robert Bork, Goals of Antitrust, Consumer Welfare, Efficiency, Errors, Mistakes
Suggested Citation: Suggested Citation
Orbach, Barak, Was the Crisis in Antitrust a Trojan Horse? (October 30, 2014). 79 Antitrust Law Journal 881 (2014); Arizona Legal Studies Discussion Paper No. 13-48. Available at SSRN: https://ssrn.com/abstract=2327364
By Wouter Wils
By Barak Orbach
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