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Antitrust Predation and The Antitrust Paradox

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The widely recognized influence that the Chicago school of law and economics had on the institution of antitrust is nowhere more apparent than in predatory-pricing law. Starting with Aaron Director, this movement had many distinguished contributors. But even in this company, Robert Bork stands out for his part in persuading the judiciary to refocus antitrust law on the interests of consumers rather than on the interests of competing firms. In The Antitrust Paradox and other writings, Bork advanced the Chicago school insight that the kind of aggressive price cutting that, at the time, passed for predatory pricing is instead an essential and, for consumers, beneficial attribute of competition. The resulting change in direction that antitrust has taken in predatory-pricing cases culminated in the Court’s Matsushita (Matsushita Electric Industrial Co. v. Zenith Ratio Corp., 475 U.S. 574 [1986]) and Brooke Group (Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 [1993]) opinions, both of which bear the marks of Bork’s influence.

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