Bork's Strategy, Price Fixing, and the Influence of the Chicago School on Modern Antitrust Law

27 Pages Posted: 18 Dec 2013 Last revised: 18 Feb 2014

George L. Priest

Yale University - Law School

Date Written: December 11, 2013

Abstract

This paper addresses why Robert Bork’s The Antitrust Paradox appears to have had such influence on the Supreme Court, leading the Court to largely adopt the Chicago School analysis of antitrust issues. It attributes this influence to Bork’s endorsement of the per se prohibition of price fixing — not embraced by others of the Chicago School — which Bork claimed required the Court to rethink its treatment of vertical restraints. The paper also attributes the influence to Bork’s emphasis on neutral principles for judicial decisionmaking, to Bork’s service as Solicitor General, to the delayed publication of his book until after that service, and to the appointment of John Paul Stevens to the Court. Though it has not been generally publicized, Stevens, like Bork, was heavily influenced by Aaron Director and was well aware of the many economic criticisms of Court antitrust opinions published in this Journal.

Suggested Citation

Priest, George L., Bork's Strategy, Price Fixing, and the Influence of the Chicago School on Modern Antitrust Law (December 11, 2013). Yale Law & Economics Research Paper No. 487. Available at SSRN: https://ssrn.com/abstract=2367028 or http://dx.doi.org/10.2139/ssrn.2367028

George L. Priest (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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