Anyone with an interest in competition law has a view on the work of Robert H Bork. His work has been undeniably influential; even for those, like me, who were never entirely convinced by the Chicago School way of thinking. In the introductory Chapter of our text book Barry Rodger and I refer on a number of occasions to Bork’s work, as it would be impossible to introduce readers to the differing schools of antitrust thought without talking of his seminal 1978 book The Antirust Paradox: I think it remains the only book we refer to by name in the main text (all other authors only get full credit in the footnotes).That book was probably the high point of his antirust work, and his 1990s epilogue that appears in later editions indicates that he felt vindicated in the way US antitrust changed after its publication.
The antitrust tide has changed somewhat in the 1st decade of this century, and Bork and the rest of the Chicago School may not have the influence in the way they once did, but they did fundamentally change the debate. Even if you do not agree with their conclusion it is now only possible to properly engage in antitrust scholarship but taking on their ideas and challenging the conclusions they reach. It is arguable the Bork was the most technically impressive antitrust thinker of the time, but it is, as I have stated elsewhere in my work, undeniable that he was the most readable and the most quotable. We, of course, use a Bork quote to lead out the ‘Discussion’ section in the relevant Chapter of our text, and I imagine many competition law tutors have reached for their copy of the Antitrust Paradox when they are struggling for inspiration for an exam question (I know I have). The way he wrote about the topic was interesting, dare I say exciting, in a way that very few manage.
I haven’t talked about Bork unsuccessful nomination to the Supreme Court, but a useful account is set out in the Guardian’s obituary, where his politics ultimately led to the more liberal Senate blocking his appointment. This episode led to the most surprising legacy that Robert Bork leaves us; the concept of ‘borking’ which stems from the media campaign attacking him at the time. The phrase has been picked up by the techie community, but I doubt very few understand the genesis of the term. Bork also played an important role in the development or ‘originalism’ in US constitutional law, but I leave others, who are far more knowledgeable, to discuss the significance of that.
For another interesting view of his work see Damien Geradin’s blog.
Robert Bork’s work will live on notwithstanding his passing, and he will no doubt grace many future exam papers and textbooks as he has done so often in the past.