Wednesday, December 19, 2012

Death of Robert Bork

I am sorry to hear of the death of Robert Bork.  He taught one of the few law school courses that I actually found memorable, when I was a Yale law student back in the day.  The class was Antitrust, in which he had written a notable book called The Antitrust Paradox.

This was a lucid and influential exposition of what one might call the modern Chicago approach to antititrust, committed to economic efficiency (as opposed to, say, protecting small producers) and very skeptical of then-prevailing judicially activist antitrust doctrines.  In addition to presenting powerful economic arguments for the Chicago view, I recall that it also discussed the enactment of the Sherman Antitrust Act of 1890.  Here, candor compels me to say that its historical argument - that consumer welfare and economic efficiency were in fact the dominating policy aims of the Sherman Act - is probably not credible, but it would be nice if it had been true (as those are the aims that I agree with Bork in wanting antitrust law to advance).

Bork's class was memorable due to his clear exposition of the case for the Chicago approach and his entertaining combativeness.  At that point, the Chicago view had not yet swept the U.S. academic and legal worlds as it soon would, although there were already people around (such as me) who were predisposed to give it favorable consideration.  So the class included a small group of liberal law students, not incredibly well-versed in basic economic reasoning, who would try to debate him.  I well remember, at the end of the first class, one such student coming up to him and saying something like: "Can I make an appointment to meet you in your office?  I'm pretty sure that I can persuade you that you are wrong."

Good luck with that, I would have said to myself if the phrase had been current at the time.  But I was amused, and less than sanguine about this student's chances of success.  Unfortunately, I never got to hear the upshot.

The last time I saw Bork was probably at a Yale Law School cocktail party for students and professors, in the courtyard a few days before I graduated.  I went up to him to say how much I had enjoyed the class.  He did not particularly know me, as it had been a large class, and I didn't get the sense that he particularly wanted to speak to me, but no matter.

It was sad to see him get embittered in later years.  These things can happen in the public eye, unless you have a very thick skin.

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