Robert Bork, RIP

Robert Bork will be remembered for many things, but the most important, and the reason we are so fortunate to have had him with us, is his eloquent and influential insistence that antitrust law is there to protect consumers, not to protect inefficient firms. The Supreme Court eventually agreed. He was, in my opinion, wrong about a lot of things, but he left the world better than he found it.

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27 Responses to “Robert Bork, RIP”

  1. 1 1 neil wilson

    I thought that Bork was unfairly “Borked” because he had the honesty to say that if the legislature and the executive passed a stupid law that it wasn’t up to the judiciary to correct their stupidity.

    I think we would all be better off if he had been appointed to the Supreme Court.

    I will always miss people who are willing to state what they believe even if it is not popular and even if I don’t always agree.

  2. 2 2 Ken B

    The Tempting of America is a good book, mostly about his views on law and its interpretation not public policy. Well worth reading.

  3. 3 3 Ken B

    Here is Bork’s answer to a question during his confirmation circus, about why he thinks the original understanding is so important in regulating what a judge can do:

    I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says ‘Congress shall make no’ and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.

  4. 4 4 Ken B

    Younger readers might not recall this.

    Mary Jo Kopechne was unavailable for comment.

  5. 5 5 Roger

    Too bad he did not directly tell off Ted Kennedy. It would not have helped his confirmation, as it would be evidence that he lacked judicial temperament, but it would have been fun to watch.

  6. 6 6 Ken B

    @Roger: +1

    What actually did him in, showing he lacked it was said judicial temperement, was his answer to why he would want to be a supreme court judge. “It would be an intellectual feast” he said.

  7. 7 7 P.S. Huff

    “What actually did him in…”

    I doubt that did him in. It simply became another silly talking point against his nomination.

    I don’t agree, by the way, that the remark showed a lack of judicial temperament. It shows precisely the kind of temperament that draws someone to the “mysterious science of the law.”

  8. 8 8 Joel

    I am by no means sufficiently read up, but for the purpose of starting a discussion:

    Bork argued that price discrimination does not harm the consumer.

    I seem to remember from my Economics course that Parkin gives the example of Airlines Harding different prices to diffent segments of the market to capture the consumers’ surplus. Is this not “harming” to the consumer, who would otherwise have kept his surplus?

    Input welcomed, if you can answer my question, Stephen.

  9. 9 9 Neil

    How many people get a verb named after them?

    bork/bɔrk/ Show Spelled [bawrk]
    verb (used with object)
    to attack (a candidate or public figure) systematically, especially in the media.

  10. 10 10 Steve Landsburg

    Joel (#8): Price discrimination can be either good or bad for consumers, depending on circumstances. I don’t have my copy of The Antitrust Paradox close at hand right now, but it would astonish me if Robert Bork was unaware of this, or failed to acknowledge it.

    That said, Bork was indeed a little cagy about the way he used the phrase “consumer welfare” to stand in for what most of us would call “social gain”. It’s true that under perfect competition, these are, in the long run, the same thing — but of course Bork was entirely focused on cases where we *don’t* have perfect competition.

  11. 11 11 Ken B

    @PSHuff: I agree with you about what the answer shows, which is why I cited it. It did play a role in the circus though. From the NYT:

    So did the notion that the nominee was somehow unfeeling as a judge. This latter was amplified when, asked by a sympathetic senator, Alan K. Simpson, Republican of Wyoming, why he wanted to serve on the Supreme Court, Judge Bork replied that it would be “an intellectual feast.”

    Whether that was a factor or just a pretext I don’t rightly know. But it was certainly *cited* as an example of just what we do not want in a judge.

  12. 12 12 Henri Hein

    “Is this not “harming” to the consumer, who would otherwise have kept his surplus?”

    I don’t know about the airlines case, but I’m generally sceptical of these arguments. Sometimes the consumer is willing to pay a premium for a brand. Paying extra to know what you get is a deliberate choice. “Surplus” is not a useful term in this context.

  13. 13 13 Henri Hein

    Ken B (#3):
    I remember that quote and find it one of the most disappointing Bork comments. Because rights are hard to define, Americans should not have any?

  14. 14 14 Ken B

    @HH 13: I think you are wildly misreading Bork. He is not denying the 9th amendment governs and guarantees rights. He is arguing for an originalist interpretation. If we do not know the original understanding of a law we do not know its real meaning. Judges are not allowed to make up interpretations in lieu of it. They have to try to find the original understanding instead. This is a call for intellectual integrity and an open method, not an assault on rights.
    It’s also the position of Hugo Black, perhaps the purest first amendment purest ever for example.

  15. 15 15 iceman

    Ken B I’d like to believe your interpretation because I strongly agree with the principle…however I recently read “The Dirty Dozen” (one of the authors is from Cato) which claimed Bork believed the Ninth Amendment should be ignored because noone can determine what it means. I don’t know enough about the man to agree or disagree. I do have the impression he got a bad rap because political correctness and intellectual integrity are not always compatible.

  16. 16 16 iceman

    #5 — if they had punched each other in the face, who should’ve been held liable?

  17. 17 17 Bill

    Ken B (#4): Even younger readers may not recall Bork firing Special Prosecutor Archibald Cox in the Saturday Night Massacre during the Watergate investigation.

  18. 18 18 Keshav Srinivasan

    Steve, out of curiosity, what are your disagreements with Bork?

  19. 19 19 iceman

    Regarding antitrust and price discrimination, a basic question I have is why consumers get an exalted status over *efficient* producers? While it’s nice for consumers to get a bargain, aren’t producers “harmed” by being prevented from charging different prices based on willingness to pay, where they are able to figure out how to do so? Austrians may have something to say here.

  20. 20 20 Paul T

    iceman: “Regarding antitrust and price discrimination, a basic question I have is why consumers get an exalted status over *efficient* producers? While it’s nice for consumers to get a bargain, aren’t producers “harmed” by being prevented from charging different prices based on willingness to pay”


    Let’s take the argument further, and venture a blasphemous question: What for, this consumer/producer distinction?

    In an honest society, one supports oneself through trade. Every trader must have something to offer; thus every ‘consumer’ must, firstly, be a producer. Similarly, the putative ‘producer’ desires money, for later trade, in order to…. consume.

    So which is which, again? And what is gained, net, by attaching artificial labels, then favoring one label over another, through state action?

    Money is merely a veneer; underneath, it’s a barter economy. However, this veneer, while a useful lubricant, also frequently serves to obscure, befogging the issues.

    Finally, I offer this quote, from a recent discussion on this board:
    “The basic point is that when you lower wages or increase prices, you do no net harm (and no net good) because for every buyer who is hurt by a higher price, there is a seller who is helped by that same higher price, and in equal measure.
    When the effects of your action wash out like this, we say that you’ve caused a pecuniary externality. There is no efficiency-based reason to discourage pecuniary externalities”

  21. 21 21 nobody.really

    Does price discrimination help consumers?

    Imagine I’ve invented a treatment for AIDS that I can manufacture at $1/dose. Al would be willing to pay $5/dose for it. Bill, Carl, and Dan can only afford $1. I could maximize sales by selling at $1, or I could maximize revenue (and presumably profit) by selling at $5. But if I can DISCRIMINATE, I can sell to Al at a high price, and also sell to Bill, Carl, and Dan at the low price.

    If I sell only at $1/dose, I make no money, so I quit. But if I can sell at something higher, then I remain in business – and I have no aversion to incidentally producing some treatments at cost for people who can’t afford the higher price. Under this scenario, price discrimination is crucial to the business model. It benefits EVERYONE – even though Al, not understanding all the trade-offs, will feel aggrieved that he has to pay more for the same benefit that others are receiving at a lower price.

  22. 22 22 Ken B

    @Bill: I think you got your modifiers wrong! Since the Cox firing was a dozen years earlier, ‘even younger’ is backwards.

    Mary Jo Kopechne was not available for comment at that time either.

  23. 23 23 nobody.really

    Bork’s study of antitrust law demonstrated a keen understanding of game theory – including the theory of the Prisoner’s Dilemma or “Playing Chicken.” In Chicken, two parties race toward each other. The best-case scenario for any driver is to cause the other driver to chicken out and veer out of the way. The second best is to chicken out yourself and veer out of the other driver’s way. The worst-case scenario is for neither driver to chicken out, and instead to crash into each other.

    In this game, the optimal strategy is to conspicuously throw your steering wheel out the window. That signals to the other party that you will not veer out of the way, and therefore the other party must choose between veering and crashing. By making yourself weak, you make your bargaining position strong.

    Ok, you caught me — I have no actual knowledge about what Bork thought about Playing Chicken. I just wanted an excuse to comment on the game theoretical aspects of the Fiscal Cliff negotiations. To wit:

    Obama wants to raise tax rates on the affluent. Republican House Speaker Boehner conspicuously floated a proposed compromise of sorts – and then couldn’t muster his own party to support it. Many commentors remark that this makes Boehner look weak – and it does. Fewer commentors remark that this makes Boehner’s bargaining position strong. In essence, he is making a conspicuous display of the idea that he can’t steer the car he’s in. If we’re going to avoid a collision, he implies, it is up to Obama to change course. Clever, eh?

    Just goes to show, you can’t judge a man by the color of his skin — even if it’s orange.

  24. 24 24 iceman

    Bork always struck me as more of a pinochle guy

    Agree it’s fun to analyze the strategery & brinkmanship with these DC games (what else you gonna do, let it drive you nuts?). But it seems the problem for Boehner is he needs almost all of his peeps (so many of the hardcore tea partiers) to pass something none of the Dems will support, while losing control of the car = he can only afford to lose a few squishy types to prevent a bill his base likes much less. He clearly wanted something to be able to say “see now it’s up to the Dems whether they want to tax everbody just cuz they hate the $250k – $1mm guys so much”. Which did seem like a clever play.

  25. 25 25 Patrick R. Sullivan

    I agree that Bork lost with his answer; ‘It would be an intellectual feast.’ That really made him seem a head in the clouds intellectual.

    He also should have taken the opportunity to lecture Ted Kennedy on why his attack was not only personally repulsive, but why that attitude was harmful to the country. He only had himself to blame for not getting confirmed.

    Then there was the matter of his later stance in the Microsoft case, famously demolished by Michael Kinsley in, ‘Book Bork, Browser Bork’.

  26. 26 26 Bill

    Ken B (#22)–You are right (again). If only you were around decades ago. “Mary Jo Kopechne was not available for comment” should have been translated into latin and made the coda of every Teddy Kennedy interview, column, or comment.

  27. 27 27 Ken B

    @Bill: thanks! Alas I was around decades ago … Too many of the damn things! I even vaguely remember Cox being fired – a disgrace for sure.

    Merry Christmas to all.

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