Bork and Microsoft: Why Bork Was Right and What We Learn About Judging Exclusionary Behavior

43 Pages Posted: 23 Nov 2013 Last revised: 11 Jan 2014

See all articles by Harry First

Harry First

New York University School of Law

Date Written: January 2014

Abstract

In 1998, twenty years after publishing The Antitrust Paradox, Robert Bork wrote: “The antitrust case brought by the Department of Justice against Microsoft is rock solid.”

How could Robert Bork, who had labored for his whole professional life to cut antitrust down, come out in support of an aggressive monopolization suit against a leading high-technology firm, indeed, an innovating firm that had arguably generated huge benefits for those consumers whose welfare Bork thought should be antitrust’s only concern? Had Bork undergone some sort of conversion that led him to see the need to protect small competitors from the depredations of dominant firms? Or had Bork been bought?

This paper explores this episode in Bork’s writing about antitrust. The paper argues that Bork was neither converted nor bought, but, rather, was applying the principles he set out in the Antitrust Paradox. The paper further argues that this episode illuminates Bork’s approach to exclusionary behavior and provides some valuable lessons on how to judge exclusionary conduct.

The paper begins with a discussion of what Bork wrote about exclusionary conduct in The Antitrust Paradox. The second part of the paper discusses Bork’s views on Microsoft and his rebuttal of his critics at the time. The third part shows how Bork was basically correct in his analysis and sets out four “lessons learned.” The paper concludes by reminding us of the overtly political content of Bork’s approach to antitrust and argues that Bork’s political emphasis on free entry and open markets can help support more vigorous enforcement today against exclusionary conduct.

Keywords: Antitrust, Section 2, monopolization, Bork, Microsoft, Netscape, Antitrust Paradox, exclusion, exclusionary conduct, predation, predatory pricing, Lorain Journal, Standard Fashion

JEL Classification: K21, K42, L12, L40, L41, L63

Suggested Citation

First, Harry, Bork and Microsoft: Why Bork Was Right and What We Learn About Judging Exclusionary Behavior (January 2014). Antitrust Law Journal, Forthcoming; NYU Law and Economics Research Paper No. 14-02. Available at SSRN: https://ssrn.com/abstract=2358520

Harry First (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6211 (Phone)
212-995-4760 (Fax)

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