Although often known by his failed nomination to the U.S. Supreme Court during the Reagan administration, Judge Robert Bork’s greatest legacy is his 1978 book The Antitrust Paradox. Building off recent economic research, Bork realized that not only was the Court’s decisions bad economics, they were decided contrary to the Sherman Act’s goals. According to Bork, Congress intended for the Sherman Act to protect consumers from the evils of monopolies—higher prices, lower quality, stagnant innovation, and so on.
To interpret the law faithfully, judges would thus need to evaluate a case’s facts to see whether they reveal likely harm or likely help to consumers. Known as the consumer welfare standard, this analytical tool still enjoys widespread, bipartisan support from economists, practitioners, lawyers, and every justice on the Supreme Court since 1979.