The Transformation Of Vertical Restraints: Per Se Illegality, The Rule Of Reason, And Per Se Legality

Robert Bork probably had the single most lasting influence on antitrust law and policy of anyone in the past 50 years. To read the 1978 Antitrust Paradox today, one is struck by how closely contemporary case law tracks Bork\u27s policy prescriptions. The speed at which the transformation in law and policy occurred in antitrust is perhaps unprecedented across any area of common law. In the 1970s, antitrust jurisprudence and enforcement policies were in tension with industrial organization economics. Bork created a unified goal for antitrust based on a “consumer welfare prescription” to shape the development of the case law. The shaping of U.S. antitrust law to fit Bork\u27s consumer welfare prescription is all the more interesting given that although Bork was not the first to argue that antitrust analysis should focus on industrial organization based economic analysis, he was the first to package these beliefs in an easy-to-understand manner that the courts could implement. While many of Bork\u27s ideas are mainstream now, at the time of publication his writing was highly contentious and the notion of an economics-based consumer-welfare antitrust standard was very controversial. This essay describes Bork\u27s policy objectives for the antitrust treatment of vertical restraints, explains why Bork had such a disproportionate influence on the subject, and tracks Bork\u27s influence on the development of vertical restraints in three specific areas: maximum resale price maintenance (RPM); vertical territorial restrictions; and Robinson-Patman Act violations. In practice, the shift in the antitrust rules applied to these areas has not been from per se illegality to the rule of reason, but has been a more dramatic shift from per se illegality to presumptive legality under the rule of reason