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Bork and Microsoft: Why Bork Was Right and What We Learn About Judging Exclusionary Behavior

Harry First, Antitrust Law Journal, Forthcoming 2014.

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In 1998, twenty years after publishing The Antitrust Paradox, Robert Bork wrote: “The antitrust case brought by the Department of Justice against Microsoft is rock solid.”

How could Robert Bork, who had labored for his whole professional life to cut antitrust down, come out in support of an aggressive monopolization suit against a leading high-technology firm, indeed, an innovating firm that had arguably generated huge benefits for those consumers whose welfare Bork thought should be antitrust’s only concern? Had Bork undergone some sort of conversion that led him to see the need to protect small competitors from the depredations of dominant firms? Or had Bork been bought?

This paper explores this episode in Bork’s writing about antitrust. The paper argues that Bork was neither converted nor bought, but, rather, was applying the principles he set out in the Antitrust Paradox. The paper further argues that this episode illuminates Bork’s approach to exclusionary behavior and provides some valuable lessons on how to judge exclusionary conduct.

The paper begins with a discussion of what Bork wrote about exclusionary conduct in The Antitrust Paradox. The second part of the paper discusses Bork’s views on Microsoft and his rebuttal of his critics at the time. The third part shows how Bork was basically correct in his analysis and sets out four “lessons learned.” The paper concludes by reminding us of the overtly political content of Bork’s approach to antitrust and argues that Bork’s political emphasis on free entry and open markets can help support more vigorous enforcement today against exclusionary conduct.

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