Bork's 'Legislative Intent' and the Courts

12 Pages Posted: 3 Nov 2014

See all articles by Douglas H. Ginsburg

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School

Date Written: November 3, 2014


Robert H. Bork’s influence upon modern antitrust law is difficult to overstate. One of his lasting legacies is his analysis of the legislative history, text, and structure of the Sherman Act, which led him to conclude the intent of the Congress passing it was to maximize consumer welfare and economic efficiency. That conclusion was adopted by the Supreme Court in 1979 and has formed the foundation for antitrust policy and enforcement ever since. This article explains the rationale for Bork’s “consumer welfare” thesis, recounts the history of its rise and the objections it engendered from other academics, and summarizes its salutary effect upon antitrust law and business practices.

Keywords: Antitrust Paradox, consumer welfare, Continental T.V., Inc. v. GTE Sylvania Inc., economic efficiency, legislative history, legislative intent, Reiter v. Sonotone Corp., Robert H. Bork, rule of law, Sherman Act, statutory interpretation, Supreme Court of the United States

JEL Classification: K21

Suggested Citation

Ginsburg, Douglas H., Bork's 'Legislative Intent' and the Courts (November 3, 2014). Antitrust Law Journal, Vol. 79, No. 3, pp. 941-951, 2014, George Mason Law & Economics Research Paper No. 14-59, Available at SSRN:

Douglas H. Ginsburg (Contact Author)

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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