Sunday, January 9, 2011

Robert Bork's influence over antitrust law

Below is a superlative article that begins to develop an understanding of the national calamity that has resulted from the marriage of "neo-liberal" free market economics with conservative legal theory. Anti-trust is not an area I have any particular expertise in, but what I can bring to this discussion is a quick summary of some work I did back in the early 1990s that compared the dollar amount of mergers and acquisitions with the dollar amount of spending for 1) research and development, 2) capital equipment expenditures, and 3) basic physical infrastructure. The graphs I generated, using data from a number of sources including Mergers and Acquisitions magazine, were quite stunning. They showed clearly that mergers and acquisitions in the United States had far surpassed those three categories at various time points in the 1980s.

This is important because while spending for 1) research and development, 2) capital equipment expenditures, and 3) basic physical infrastructure generally increases the potential of the economy to create more wealth, spending on mergers and acquisitions is ONLY a rearrangement of the ownership of already created wealth. From the standpoint of political economy, mergers and acquisitions do absolutely nothing for the economic betterment of society, no matter how many headquarters staff are "downsized" through "increased synergies." So, it was quite maddening for me throughout the 1980s and 1990s to see the very worst of the corporate raiders, and the tidal wave of mergers and acquisitions they helped fuel, be praised as great businesspeople. Clearly, the entire national discussion of the issue has been hopelessly impoverished by the destruction of economic thinking wrought by "neo-liberal" free market economics. Join that with conservative legal theory, and you have a true national disaster.

One other point I would like to make. As I read the following article, it pained me that the author came so close to what is a fundamental issue for our time. The author mentions the problems of the dangerous FEC v Citizens United decision, and the domination of American society by corporations. But, we need to go further, to begin recapturing the philosophical basis of our democratic republic. The U.S. Constitution guarantees to the states a republican form of government. Do we know what this means? I do not think it is possible to have a republican form of government when formally organized economic interests enjoy overwhelming domination of the political process. The Citizens United decision is all the more outrageous because the conservative majority quoted James Madison's famous Federalist Paper No. 10 - on the problem of political faction - while turning it on its head. Madison explicitly warned that it was economic interests that most often give rise to the most pernicious political factions, yet here we have the conservatives of the Supreme Court opening the door to legalized mugging of the political process by economic interests, so long as they are formally organized as corporations.

Robert Bork's influence over antitrust law
by brooklynbadboy
When President Reagan nominated Judge Robert Bork to the Supreme Court in 1987, a political war began. Judge Bork had been a circuit judge on the District of Columbia Court of Appeals, which could be considered the second most powerful court in the nation. Although he was 60 years

old, his influence over ultra-conservative jurisprudence became well known at the time of his nomination. He is one of the founding fathers, so to speak, of originalism. Democrats feared that his confirmation would shift the court so far to the right that it would be decades before balance could be restored. That political war was fought mainly over Judge Bork's stance on Roe vs. Wade, a war which President Reagan lost. Fierce opposition from Democrats like Ted Kennedy and some Republicans like Arlen Specter, led to Bork being rejected by the Senate 58 to 42. Anthony Kennedy was confirmed unanimously in his wake. Judge Bork resigned his seat on the DC Circuit the following year, leaving his colleague on the court Antonin Scalia to carry the battle flag for another time. But Judge Bork's influence didn't fade. He is still held in high esteem by conservative legal scholars over such matters as federalism, original intent, and other matters. But his influence over another body of law is deep, pervasive and is playing out across the nation in ways that will probably be felt for generations.

After serving as Solicitor-General for Presidents Nixon and Ford from 1973 to 1977, Bork wrote a book that has had a lasting influence on the American economy. The Antitrust Paradox is Robert Bork's magnum opus. Along with Judge Robert Posner's seminal book Antitrust Law(1976), the influence that Bork's book has had on modern competition law in the conservative era is difficult to overstate. Both men are associated with the so-called Chicago School of neoliberal economics with its heavy emphasis on deregulated markets and the rational choice theory. Conservative legal minds like George Priest at Yale have praised his influence:

Virtually all would agree that the Supreme Court, in its change of direction of antitrust law beginning in the late 1970s, drew principally from Judge Bork's book both for guidance and support of its new consumer welfare basis for antitrust doctrine.

Read more.

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