At Liberty Law Blog, John McGinnis: Judge Bork's Unstoppable Ideas (excerpting from his article in the Chicago Law Review Dialogue).
Michael Greve adds this comment:
I yield to no one in my admiration and affection for the great judge but the tension here is obvious. Bob Bork shaped antitrust law for sure and for the good of all–but it is pure, unadulterated federal common law, unsupported by any text and completely divorced from the authors’ intent–which was a constitutional intent. Judge Bork’s genius was precisely to de-constitutionalize the subject and to bring it down to efficiency theorems, administered by judges from the University of Chicago Law School.
The antitrust law initiated by Bob Bork is the just pride of American law, and a gold standard around the world. It is also a screaming scandal to any originalist and textualist theory of what courts ought to do.
Whether there is a contradiction in Bork's work depends significantly on whether one views the original meaning of the antitrust statutes as in effect delegating common-law lawmaking authority to the federal courts. It's not wholly implausible to think they did, and if so, there's no contradiction (except perhaps Bork's failure to acknowledge that some parts of the Constitution also might delegate to future federal courts).
Posted at 6:55 AM