The latest evidence that the right is troubled these days comes from The American Conservative. There Daniel Kishi attacked Robert Bork for redirecting antitrust law to the detriment of the American economy. The reformation of competition law in America, which has influenced law around the world, is in reality one of the greatest achievements of the forces for liberty. It replaced various interpretations that courts in the eras of the New Deal and the Great Society used to maximize their own discretion at the expense of economic efficiency in favor of one that has served the cause of consumers and innovation. A mark of the folly of Kishi's critique is that he even praises Brown Shoe, an enduring marker of judicial activism and incoherence that is much of a piece with the rest of Earl Warren's jurisprudence.
But begin with the one thing that Kishi gets right. As I have discussed elsewhere, antitrust law now resembles the recommendations that Bork laid out in his famous book, the Antitrust Paradox. Disagreement on particular antitrust cases, of course, continues, but the disagreements take place in the legal landscape that he created. I would analogize Judge Bork here to the most successful kind of statesman ― one who, like Margaret Thatcher ― transforms even the opposition by creating new terms of debate.
Read Full Article »