Date: 1987-10-22
Speaker: BENJAMIN C. BRADLEE (democrat)
Chamber: S

Executive Editor. The Washington Post. Washington. DC. DEAR SIR: I am Immediate Past Chairman of the Section of Antitrust Law of the American Bar Association. I write this letter on behalf of myself and the previous Chairmen of the Section listed below. We write to take issue with Colman McCarthys criticisms in his article of July 12. 1987 stating that Judge Robert Borks views on antitrust law are "over the edge" and anticonsumer. To the contrary. Judge Borks writings in this area have been among the most .influ.ential scholarship ever produced. Whilenot all of us would subscribe to its every conclusion. we strongly believe that The Antitrust Paradox. which -he published in 1978. is among the most important works written in this field In the past 25 years. It is indicative of the value of Judge Borks contributions that The Antitrust Paradox has been referred to by the United The opinions expressed .herein are those of the individuals listed below and are not intended to rep.resent those of the Section of Antitrust Law or .the American Bar Association. .October A2 1.987 States Supreme Court and by theU.S. Circuit Courts of Appeals in 75 decisions since its publication. Perhaps the clearest evidence of its influence is that it has been cited approvingly by no fewer than six majority opinions written by Justices commonly viewed as having .widely varied judicial philosophies: by Justice Brennan in CargiU v. Monfort of Colorado. Inc.. 107 S.Ct. 484. 495 n. 17 (1986). by Justice Powell in Matsushita Electrical Industries v. Zenith Radio Co.. 106 S.Ct. 1348. 1357 (1986). by Justice Stevens in Aspen v. Aspen Highlands Skiing. Corp.. 105 S.Ct. 2847. 2858 and n. 29. 31. 286061 n. 39 (1985) and NCAA v. Board of Regents. 468 U.S. 85. 101 (1984). and by former Chief Justice Burger in Reiter v. Sonotone Corp.. 442 U.S. 330. 343 (1978) and United States v. United States Gypsum Co.. 438 U.S. 422. 442 (1978). Justice OConnor also relied on The Antitrust Paradox in her concurring opinion in Jefferson Parish HosPitaL District No. 2 v. Hyde. 466 U.S. 2. 36 (1984). -a did- JuWice Blackmai in his dissent iri National Soceiatf o Professional Engineers v. United States. 435 U.S7679.- 700 n.1 (1978). It should also be noted that every member of the present Supreme Court Joined one or another of these opinions. In light of the fact that six of the nine present Justices have cited Judge Borks book and that all of them have joined opinions citing it. Mr. McCarthys claim that Judge Borks antitrust views are "so far on the fringes of irrelevant extremism that [Bork] disqualifies himself from the debate" demonstrates more clearly than anything we could say that Mr. McCarthy does not know what he is talking about. Mr. McCarthy is also quite wrong in his suggestion that Judge Borks antitrust writings are anticonsumer. To the contrary. the central thesis of Judge Borks book. as summarized in chapter 2. is that: (1) The only legitimate goal of American antitrust law is the maximization of consumer welfare. therefore. (2) "Competition. for purposes of antitrust analysis. must be understood as a term of art signifying any state of affairs in which consumer welfare cannot be increased by judicial decree. R. Bork. The Antitrust Paradox. 51 (1978). It is true that Judge Bork has also stressed that protection of consumer welfare is sometimes inconsistent with protection of some businesses from legitimate competition. The key point. here. however. is that Judge Bork advocates procompetitive policies which promote the very efficiency that makes the enhancement of consumer welfare possible. Thus. we fear that it is Mr. McCarthy. and not Judge Bork.. who is out of touch with the center of legitimate judicial and economic thought about the proper direction of antitrust analysis. Fortunately. the mainstream view. which no one has helped promote more than Judge Bork. is that the proper antitrust policy is one which encourages strong private and government action to promote consumer welfare rather than unnecessary government intervention to protect politically favored competitors. Sincerely. James T.. Halverson. Shearman & Sterling. New York. New York. Immediate Past Chairman. Section of Antitrust Law. American Bar Association. On behalf of himself and: Richard A. Whiting. Steptoe & Johnson. Washington. D.C.. Section Chairman. 198485. Richard W. Pogue. Jones. Day. Reavis & Pogue. Cleveland. Ohio. Section Chairman. 198384. Carla A. Hills. Well. Gotshal & Manges. ward and have that debate on the Washington. D.C.. Section Chairman. floor of the U.S. Senate. let the 198283. Record be prepared and presented for E. William Barnett. Baker & Botts. Reo e Houston. Texas. Section Chairman. people to read. throughout time. of a 198182. man whose entire personna was twistHarvey M. Applebaum. Covington & ed and presented in a most grotesque Burling.. Washington. D.C.. Section way. Chairman. 198081. So they said go forward. That is not Earl E. Pollack. Sonnenschein. Carlin. our husband and father that has been Nath & Rosenthal. Chicago. Illinois. Section Chairman. 197980. portrayed to the United States of Allen C. Holmes. Cleveland. Ohio. Sec- America. and to the peoplepresented tion Chairman. 197879. actually almost an evil caricature of a Ira M. Milstein. Well. Gotshal & man. a gargoyle of a man. Manges. New York. New York. Section I knew that something was up when Chairman. 197778. I went- home this summer in August. Edwin S. Rockefeller. Schiff Hardin and I was besieged by people who I Chairman g 197677. S t have known for many years. DemoJohn Izard. King & Spaulding. Atlanta. crats. Republicans. independents. but Georgia. Section Chairman. 197475. thoughtful people. good Wyoming Julian 0. von Kalinowski. Gibson. Dunn people and they would come up to me & Crutcher. Los Angeles. California. and say. "Al. dont vote for Judge Section Chairman. 19"1273. Bork. Promise me you wont do that." Richard K. Decker. Of Counsel. Lord. Bissel & Brook. Chicago. Illinois. Sec- I said. "Why?" . tion.Chairman. 197172. They said: "Why? I cant possibly Frederick M.-Rowe. K irkland &.Ellis. even believe you would ask. Im telling Washington. D.C.. Sectioni Chairmn. you why. Because what I have read 196970. Miles W. Kirkpatrick. Morgan Lewis "& w hve.lin Bockius. Washington. D.C.. Section what- I have ie&id inthe New Yorker or Chairman. 196869. the Atlantic or heard byritdio. -Now