Robert H. Bork, Alexander M. Bickel Professor of Law, 1962-82

Robert H. Bork

REFERENCES:

Fred R. Shapiro, “The Most-Cited Articles from The Yale Law Journal,” 100 Yale L. J. 1449 (1991).

Reactions: Robert Bork ‘A Titan’ in the Legal Field, Washington Wire, December 19, 2012.

George L. Priest, “Bork’s Legacy: Robert H. Bork and the Yale School of Antitrust Analysis,” Yale Law Report, Summer 2013.

Robert Heron Bork (1927-2012) was on the faculty for two decades, although he spent several years on leave of absence when he served as Solicitor General of the United States and acting Attorney General.

Robert Bork’s most enduring legacy is his work in the antitrust field. He applied economic theory to demonstrate that much of  antitrust doctrine was economically irrational and ultimately detrimental to consumer welfare, which he maintained was the normative goal of antitrust law, based on the intent of the enacting Congress. In the 1960s, Bork published a series of influential articles developing his thesis, including “The Rule of Reason and the Per Se Concept: Price Fixing and Market Division” (pts. 1 & 2), 74 Yale L. J. 775 (1965) and 75 Yale L. J. 373 (1966), one of the most frequently-cited articles in the history of the Yale Law Journal.

In 1978, Bork published The Antitrust Paradox: A Policy at War with Itself, which synthesized and elaborated his earlier work. The book surveyed antitrust case law, criticizing its tendency to protect competitors, rather than competition and maintaining that predatory pricing and harmful product-tying were not tenable business practices and should therefore be abandoned as legal principles. As YLS Professor George Priest remarked at a Memorial Service for Robert Bork, after cataloguing numerous key Supreme Court decisions citing Bork’s work, “It is not in the slightest an exaggeration to state that Bob Bork was the architect of modern antitrust law.” 

Also an eminent constitutional law scholar, Bork emphasized the use of original intent to construe the Constitution. George Priest observes that there is an intellectual link between his antitrust and constitutional law scholarship, a methodology that seeks to derive neutral principles from looking back to the intent of the drafters. In 1982, he was appointed to the U.S. Court of Appeals for the D.C. Circuit and left the faculty. He resigned from the Court after the failure of his 1987 nomination to the U.S. Supreme Court and became a research scholar at the American Enterprise Institute. The political controversy over his nomination sparked heated debate over the proper role of the Senate in evaluating nominees and of judicial activism in decisionmaking. Bork touched upon these matters in his best-selling book, The Tempting of America: The Political Seduction of the Law (1989).

Upon the announcement of his death, Justice Antonin Scalia stated that “Robert Bork was one of the most influential legal scholars of the past 50 years. His impact on legal thinking in the fields of Antitrust and Constitutional Law was profound and lasting.”