The Antitrust Paradox. A Policy at War with Itself. By Robert H. Bork. [New York: Basic Books Inc. 1978. xi and 462 pp. (including index). Hardback. £18.00.]
| Date | 01 November 1979 |
| Published date | 01 November 1979 |
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01574.x |
Nov.
19791
REVIEWS
737
1976
in their introduction and precedents. Although this volume is still
eminently suitable for the bookshelf
of
the country solicitor he need not
suppose that it is of use only when a farmer client crosses his threshold.
Within its declared object in its title
of
producing short forms
of
wills this
volume provides
a
useful standby when there is neither the time nor the
circumstances for more complicated text and precedents.
The keynote to the prccedents is sound draftsmanship in language that the
layman will understand. The Editors provide
a
precedent clause for
a
gift
of residue upon trust to retain or convert pointing out that this
is
usually
more in accord with a testator's intentions than a trust for sale. This comment
is
very relevant and often when explaining the trust for sale concept to the
testator one
is
met by the reply that the testator does not wish such and such
to
be sold. One could possibly suggest that there should be
a
time limit during
which the marriage shall take place when a will is made in contemplation
of
marriage. Finally the sections dealing with transfers
of
value
inter
vivos
disclaimers and deeds of family arrangement are conveniently found in the
one volume with wills as part of the overall picture
of
tax planning.
R.
D.
G.
MARSON.
THE
ANTITRUST
PARADOX.
A
Policy
af
War
with
lfselj.
By
ROBERT
H.
BORK.
[New
York:
Basic
Books
Inc.
1978.
xi
and
462
pp.
(including index).
Hardback.
$18.00.1
THIS
radical critique of the development
of
antitrust in America since
1915
comes at a time when it should be of considerable interest in Europe. Although
holding
a
chair at Yale, Professor Bork is connected with the Chicago school,
whose proponents tend
to
believe morc than do many other commentators
in the general effectiveness of market forces.
He praises the judgments delivered in the early days of antitrust when,
out of the very general language of the Sherman Act
1889,
courts held that
agreements between competitors fixing priccs or charges and sharing markets
should be illegal
per se
without any defence that the prices set were roason-
able being available.
As
Judge Taft said in
U.S.
v.
Addystorz
Pipe
and
Steel
(1898),
to start such an inquiry in the a'bsence
of
any criteria for ascertaining
the competitive price would lead to intolerable uncertainty. For the court to
decide how much monopoly profit should
go
to
those achieving market power
by agreement would be
a
political decision of the sort to be made by govern-
ments not courts. But even in that very early case, Judge Taft had the insight
to perceive that
per
se
illegality was appropriate only to naked price fixing:
restraints ancillary to forms
of
collaboration capable of yielding efficiencies,
such
as
a
partner's covenant not to compete with the partnership, should
be
subject to
a
rule of reason, under which possible efficiencies might outweigh
the
loss
of
consumer welfare due to the parties producing less and charging
more. Professor Bork strongly believes that the only goal that should be
pursued by antitrust is consumer welfare: that is efficiency, both in the
allooation of resources throughout the economy and in production and distribu-
tion. Such
a
limited frame of reference enables courts to make predictable
decisions and firms that are efficient at producing things for which consumers
are.
willing to pay to grow at the expense of those less efficient. There is no
criterion for choosing betwcen such eficiencies, and the protection
of
small
business against efficient competition. Since
1915,
antitrust law has been
extended by both legislation and courts
to
embrace other aims, and Professor
Bork regrets the
loss
of
efficiency in business and certainty of law to which
this has led.
Allocative elllciency is distorted when firms with market power can charge
more than when subject to competition, in which case they will produce less.
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