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LARKIN: Robert Bork, an original
Legal scholar propounded Founders’ Constitution
Question of the Day
How influential was Judge Robert H. Bork in American jurisprudence? It’s difficult to capture in just a few paragraphs the legacy of Judge Bork, who died Wednesday at age 85. In his typically self-effacing way, he once told a gathering of his law clerks that his greatest contribution was inspiring them to make contributions of their own to the rule of law. Certainly any discussion of Judge Bork’s outsized achievements must mention two subjects in which he truly excelled: antitrust law and constitutional theory.
Antitrust law regulates the competitive actions of firms and markets in order to enhance allocative efficiency. That statement is orthodoxy today, but was heresy when Judge Bork first endorsed it in the 1960s.
Congress enacted the Sherman Antitrust Act in 1890 to deal with the “restraints of trade” imposed by cartels and monopolies. The act, however, was unclear as to exactly what cartels and monopolies did wrong and exactly what Congress wanted to outlaw. Indeed, if read literally, the act would outlaw every contract because every contract restrains trade.
For nearly 90 years, the Supreme Court read the Sherman Act to protect individual competitors, not the process of competition. That approach had the effect of injuring consumers through higher-priced, lower-quality goods.
Judge Bork offered an alternative reading. Believing that the Sherman Act sought to advance consumer welfare, he argued that microeconomic analysis enabled courts to decide whether particular business practices benefited or harmed consumers.
His best-known antitrust work was his book “The Antitrust Paradox,” published in 1978. It is controversial among members of the antitrust bar. Still, the Supreme Court endorsed his approach and has cited that book as a respected authority numerous times. “The Antitrust Paradox,” therefore, is one of a small number of books that helped redirect an entire field of law down a different path. That redirection has benefited consumers for the past 35 years.
Judge Bork made an even more controversial and important contribution in the field of constitutional theory. Law students learn the “case method” of legal reasoning. Students read legal opinions to extract the holding and reasoning in order to learn how to decide the next case, where the facts differ. That analysis works well if there is no document — such as a statute — that must be analyzed. In such a case — tort law is the classic example — judges devise the proper rule by weighing the costs and benefits of different outcomes.
Judge Bork was an early proponent of the theory that this analytical method sometimes is entirely wrongheaded. Provisions of the Constitution, for example, have a meaning independent of what the courts may say about their benefits and costs. In those cases, he argued, the court’s job is not to weigh the pros and cons of a result, but to read the Constitution as if it were a contract, to discern the intent of the drafters, and to apply that intent fairly, whatever the outcome.
Of course, critics assailed Judge Bork for holding an artificially narrow view of the judicial function. Yet he did not endorse the simplistic, wooden style of constitutional analysis that his critics often caricatured. On the contrary, he once said the fact that people must vote for the president and members of Congress was a sufficient basis for inferring that they had a right to engage in political speech, even if there were no First Amendment Free Speech Clause. Unfortunately, such views got lost in the noise created by the criticisms.
Even more important than those two doctrines, however, was Judge Bork’s willingness to stand behind them. Perhaps it was his Marine Corps background, but he never wavered in defense of his principles, despite what it cost him.
That resolve, that valor, was perhaps his greatest contribution to the law. Amid all the criticisms, it has helped steel a generation (and more) of lawyers who share his views. Perhaps that is what he meant by saying that his greatest contribution was inspiring his law clerks. If so, his contributions will continue long after this day has ended.
Paul Larkin, a former law clerk for Judge Bork, is a senior legal research fellow in the Heritage Foundation’s Center for Legal and Judicial Studies.
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