Joseph V. Coniglio hosts Robert H. Bork Jr., president of the Antitrust Education Project, to discuss his book The New Paradox: Antitrust and the Threat of Conservative Socialism. They cover what’s happening now in antitrust policy, Trump-era antitrust continuity, and why antitrust is the wrong tool for speech issues.

Publications Mentioned

• Bork, Robert H., Jr. The New Paradox: Antitrust and the Threat of Conservative Socialism. Washington, D.C.: Information Technology and Innovation Foundation, 2024.
• Bork, Robert H. The Antitrust Paradox. New York: Basic Books, 1978.
• Bork, Robert H. Slouching Towards Gomorrah: Modern Liberalism and American Decline. New York: ReganBooks, 1996.

Cases Mentioned

• Brown Shoe Co. v. United States, 370 U.S. 294 (1962)
• United States v. Von's Grocery Co., 384 U.S. 270 (1966)
• Utah Pie Co. v. Continental Baking Co., 386 U.S. 685 (1967)
• United States v. AT&T Inc., No. 17-02511 (D.D.C. June 12, 2018)

Auto-Transcript

Joseph V. Coniglio: My name is Joseph Coniglio, and I am senior counsel and director of antitrust innovation policy, as well as the Schumpeter Project on Competition Policy here at the Information Technology Innovation Foundation, ITIF. And I'm proud to announce the release of our sixth episode of our Antitrust Speaker Series, Creative Discussions.

We're channeling Schumpeter's idea of creative destruction. We'll be having wide-ranging and in-depth discussions with antitrust’s greatest luminaries to discuss hot topics in antitrust, tech, economics, and beyond. As well, get to know a little bit more about the people that have really been influential in antitrust.

So, with that, I'm very pleased to announce this month's episode. Our guest will be Robert H. Bork Jr. President of the Antitrust Education Project, a really great organization that promotes consumer welfare, focused antitrust policy for the next generation of lawyers, academics and economists. And who is also head of the Bork Group, a public affairs agency working on really cutting-edge key issues in antitrust law, other areas of law, and policy. Robert has had a very distinguished career across a number of organizations, having worked at The Heritage Foundation, as well as on Capitol Hill as an aide for Senator Gordon Humphrey and as a special assistant to former US Trade Rep. Carla Hills.

And before that, a career in journalism at several publications, including Forbes, The Miami Herald and others. And of course, Robert is really part of one of the first families of antitrust, as the son of the late Judge Robert H. Bork who I will just say, so that he doesn't have to, is clearly one of the most influential jurists of his generation.

And his contributions to antitrust and many other areas of American law really cannot be overstated. Robert carries forward his father's great legacy including as president of the Bork Foundation and recently reissued his father's classic work The Antitrust Paradox, which I have with me right here for those of you watching the video.

As it includes, I think, a really great forward by you, Robert. But we're actually here today to talk about another book which Robert has recently published, titled The New Paradox: Antitrust and the Threat of Conservative Socialism, which I also have here and which I can commend to our listeners as really a great provocative read both because I think of the content and also just how timely it is, given really what's going on right now on the right with antitrust which I'm really looking forward to discussing.

Robert, thank you so much for joining us today.

Robert Bork Jr.: I'm really glad to be here. Thank you so much for having me.

Joseph V. Coniglio: Great. Let's get right into it. So, I want to get started where you get started in the book, in chapter one, where you really set the stage for what's happening on the right now with antitrust policy. So, let's step back. Why did you write this book, and what is the threat of conservative socialism?

Robert Bork Jr.: We started to write this book towards the end of the Biden administration where we thought we could put a nice bow on Lina Khan and the Biden approach to antitrust. And we were working on it when Trump got elected, and we thought we better see what's going to happen here." And we did, and we thought we really actually can't just wrap a bow, put a bow on this thing. It's not over. And we also had noticed during the Biden administration Republicans, conservatives doing strange things like supporting many of the same policies that the Biden administration was in favor of, or supporting Amy Klobuchar's attempts at rewriting antitrust law.

And we thought, "Why is this happening?" Conservatives once defended markets and limited government and the rule of law. They were increasingly tempted by the language of industrial policy and corporate punishment and economic nationalism and state-directed capitalism.

So, in many cases, they were adopting the same assumptions that the progressives have long embraced, only with different political goals, and that's what we call conservative socialism. It's a belief that government should use economic power to reward friends, punish enemies, manage markets, and direct private enterprise in pursuit of political outcomes. And this doesn't arrive waving a red flag. It often arrives wrapped in patriotism and now populism anti-corporate rhetoric or cultural frustration. But the underlying instinct is the same, a growing faith in centralized power over free markets. So, we just saw antitrust becoming a perfect lens through which to see this change, because antitrust law was originally designed to protect competition and consumers, not to become a weapon for social engineering and political retaliation or industrial planning.

Joseph V. Coniglio: Yeah, it's so interesting because I think on the right, and you give a couple good anecdotes in the book, there's this recognition that we forgot private power. That it's not just the government power that's the problem, it's private power. But of course, this is nothing new. The Founding Fathers were well aware of the problem with faction and private power, but they recognized that the bigger threat was giving government power to really restrict economic liberty, and how that in so doing could actually entrench private power, right?

When you think about things like regulatory capture and whatnot. So why is that insight, that's really I think core to the American founding, just lost now on the right?

Robert Bork Jr.: They're angry, I think is a simple way to describe it. They're angry about things that the big tech companies did and maybe are doing somewhat less now, but what they did in terms of trying to censor speech, conservative speech. They saw antitrust, I think as the left did, as maybe somewhat differently, but as a vehicle or weapon to use to stomp on this behavior. And I think they played right into the hands of the left who said, "We can get these guys on the right to come over to us, because they're mad about this, and we're mad about everything. And maybe we can join up and get some things done."

I think that what they thought would happen with legislation was a great failure for the left and I guess for the right, those on the right who wanted to do that, during the Biden administration. But also, the whole movement, I think, on the left, I think it has staying power, but in terms of how it was applied by Lina Khan at the FTC, was a huge failure.

Joseph V. Coniglio: See, I want to drill down on all this, but let's first set the table here because obviously, we have what's going on now, but as a reaction to what we've had the past 40, 50 years. And in chapter two of the book, you give an excellent history of the antitrust laws and in particular how we got to the consumer welfare standard, which has been so important over the last 40, 50 years, after really decades of an antitrust policy that, as your father noted, was at war with itself. So why don't you just put it simply, for our listeners, set the table here. What is the consumer welfare standard, and why was it so important?

Robert Bork Jr.: The consumer welfare standard was largely associated, as you point out, with the work of my father, but also other Chicago School lawyers and scholars. And it created a revolution in antitrust. Before it emerged, antitrust law had become, as you say, wildly unpredictable. Looking back at Von's Grocery and Brown Shoe and Utah Pie were three of the most famous examples.

The courts were blocking mergers because companies were too big even when consumers benefited. Businesses could be punished for cutting prices aggressively, predatory pricing, but it wasn't. Antitrust had become detached from economics and vulnerable to political manipulation.

The consumer welfare standard brought discipline and coherence back to the law, and it asked a relatively simple question: Does the conduct harm consumers through higher prices, reduced output, lower quality, or reduced innovation? That sounds obvious today, at least to some of us, but at the time, it was a revolutionary-- it was revolutionary because it shifted antitrust away from vague hostility towards size and toward measurable economic effects.

The standard helped create one of the most innovative, prosperous periods in American economic history, and consumers benefited from lower prices, technological innovation, and greater efficiency. It transformed antitrust from a political weapon into a more principled, and I think this is important, neutral body of law.

Joseph V. Coniglio: Yeah. No, I think it's all true and, of course, we could discuss for a whole episode the consumer welfare standard and, you're well familiar with that.

Robert Bork Jr.: I’ll come back anytime.

Joseph V. Coniglio: Love to have you. But anyway, you and I are both familiar with a lot of the debates about the consumer welfare standard. Are we looking at total surplus? Are we looking at consumer surplus? And what was the legislative intent behind the antitrust laws?

One thing I wanted to ask you, though, is on the technocratic point because I think in the book you even mention this idea of technocratic antitrust and a lot of people associate the consumer welfare standard with a technocratic approach to antitrust whereby, the economists and the economic methodologies are really doing a lot of work. It's very technical, not always very administrable when you do this complex balancing analysis between harms and benefits. What do you say to that sort of criticism or critique of the consumer welfare standard?

Robert Bork Jr.: So, I think the criticism is both fair and unfair.

When my father was working on his theories, his thoughts about consumer welfare, he taught himself calculus so that he could do the economic analysis. And that I think economic analysis draws some criticism from the left in particular, but in fact, how else can you do this kind of work?

How else can you apply antitrust fairly and neutrally without having some fact-based approach to your analysis, the economic analysis that decides whether or not someone is being harmed, groups are being harmed, consumers are being harmed. So, I think that answers your question.

Joseph V. Coniglio: No, absolutely. You want to have administrable legal regimes, but you also want to minimize error costs. And I think the point is, yeah, there may have been some administrability burdens that were put on by the consumer welfare standard, but the error cost benefits, right? Eliminating false positives were huge, right? To outweigh that. So, I think that's the key point.

Okay, so we've got that consumer welfare standard down. Now, let's go to chapter three, because you talk about how a lot of people on the right are moving away, not just from consumer welfare and that approach to antitrust, but the broader classical liberal theory of political economy that, one could associate that with , and how even your father may not have predicted this happening.

And I guess I would just ask, but really if you think about it, how surprising is it really that we're seeing people on the right moving away from classical liberalism? And I think, if we think beyond the post-war period, on the right things like mercantilism or even feudalism have been very popular economic ideologies.

And in fact, classical liberalism, when it started to come about in the 18th, 19th century, was seen as a center-left, bourgeoisie sort of mentality. So, I take it the move to socialism is strange, but moving, let's say, to mercantilism on the right, is that really something that should've surprised us?

Robert Bork Jr.: I don't know. In one sense it is surprising because modern American conservatism after Ronald Reagan became deeply identified with free enterprise and skepticism towards centralized economic control. But as you say, historically parts of the right have been often comfortable with mercantilism and protectionism and state-guided economics the kind that you see in European conservatism in the pre-war industrial policy and even in aspects of early American history.

What we're seeing now is partly a reversion to older instincts. The difference is that today's version is colliding with modern populism and cultural politics. Many conservatives look at large corporations and conclude that because they dislike the cultural values of corporate America, government should step in to control those firms. But once you empower the state to manage economic outcomes for your side, you create powers your opponents will eventually use against you.

And that's one of the central warnings of our book. If conservatives abandon neutral principles in favor of political economic management, they may win a few temporary battles, but they will lose the larger constitutional order.

Joseph V. Coniglio: Yeah, it's so true. It's one of the things if you are a conservative and you really believe the elites are not on your side, I think the last thing you'd want to do is give more power to the government But so one of the things, and this gets into the really curious parts of conservative socialism from an antitrust perspective.

We heard from the Biden administration, but also the Trump administration, about this idea that antitrust should be about protecting labor in addition to consumers. And I guess I would just ask you, how consistent is it with the consumer welfare standard, which is about protecting consumers and buyers in a product market?

How different is that from protecting sellers in a labor market, right? Are those two ideas the same? Because there, there's been an uncritical acceptance of this idea now that antitrust is about protecting labor. What do you make of that?

Robert Bork Jr.: I think in one sense it's very true. First of all, laborers are consumers. And so, if you're going to have a system that protects them and protects everybody else equally and neutrally, then yes, it protects labor. In some cases, I would think they would be most anxious for that protection from cost and innovation and all that stuff. To receive the benefits of all of that.

Joseph V. Coniglio: Prices go down, everything else being equal, real wages go up, right?

Robert Bork Jr.: Exactly. But I think what Lina Khan, former chair of the FTC, and others in the Biden economic circle really were trying to do was when they talked about protecting labor, is I think they were trying to energize labor as a political force and make promises that they were going to do things that really weren't necessarily to labor's benefit.

But again, it's the Biden administration's approach to antitrust was much more about creating political power than it was about creating economic fairness.

Joseph V. Coniglio: Yeah. And I want to get into that, because you really talk a lot about what happened during the Biden administration in chapter four of your book. And President Biden, I think very soon after he came into office, characterized the consumer welfare standard as a 40-year failed experiment.

Robert Bork Jr.: Oh God, that got me going.

Joseph V. Coniglio: I can say I've characterized the Biden administration antitrust as a four-year experiment, which I think is definitely more accurate. But can you give our listeners the highlights? Just how bad was this? I really don't think people still understand just how much damage Lina Khan and the Biden antitrust people did.

Robert Bork Jr.: Lina Khan is my poster child for this whole period, and she attempted the most aggressive expansion of antitrust power in decades. The FTC tried to move away from evidence-based enforcement and toward a much more ideological, expansive vision of antitrust. And as we all saw, the results were deeply problematic.

First of all, there were repeated courtroom setbacks. Judges across the ideological spectrum often rejected her agency's theories because they were speculative, unsupported by evidence, or inconsistent with existing law. I even heard from people who worked there that she stopped talking to the economists in the agency because [00:17:00] she wasn't interested in the economics to support her case. In fact, she was afraid that economics would torpedo her case which I think they probably did.

Second, the FTC created enormous uncertainty in the business community. Companies that had difficulty understanding what rules applied because traditional standards were being replaced with vague political concepts, they just were left scratching their heads and wondering, "Should we do the deal?

Should we not do the deal? I don't know what we're supposed to do. Do we have to call them if we want to order paperclips?" What, they didn't know what was up and down, and then I should just say again, another one the agency increasingly treated big as inherently suspicious again, which was exactly the mindset the consumer welfare standard was designed to correct. And what doesn't get enough attention just in general in the FTC, and I can't speak to the Justice Department Antitrust Division, on this, but just she created low agency morale which flowed from her kind of aggressive management style of the agency often criticizing and punishing career employees until so many of them were leaving.

And so many of them who stayed were upset that in polls, which they do of the federal agencies, she went from near the top to the dead bottom, the FTC did, in terms of a place to work. And the whole thing just diverted antitrust away from its core mission, which, I think it was simple for them: just focus narrowly on competition and the consumer, and consumer harm, and you will succeed. But instead, it became entangled with labor policy, environmental goals, privacy concerns, and cultural grievances. Which is attractive politically but antitrust, when it loses its focus and starts [00:19:00] pursuing every social objective imaginable, loses legitimacy and ultimately effectiveness.

Joseph V. Coniglio: Yeah, no it's so true and I guess it's just consistent with the neo-Brandeisian attack on the rule of law and antitrust itself. What a surprise when the institutions suffer the damage that they did. It's really quite horrible and something that I think is going to take a while, unfortunately, to repair.

Robert Bork Jr.: We haven't even we haven't even talked about the Trump administration, and you're right, it will take a while to repair.

Joseph V. Coniglio: We're going to get there, I think. But one thing I did want to ask you about on this chapter, because as a Schumpeterian this really caught me. So, you talk about how the Lina Khan neo-Brandeisians have adopted the Marxist position that capitalism inherently leads to concentration.

And one thing I would just suggest, and be curious what you think, Robert, is, I think the Marxists do believe that, obviously, but if you believe that, you're not necessarily a Marxist. Schumpeter saw capitalism as driven by innovation, and sometimes that can create big firms, right?

But I think the point is that's not necessarily a bad [00:20:00] thing, right? Big isn't inherently bad, and sometimes there are dynamic reasons why. And I should also say we appreciate the ITIF cite there to our report that concentration, contrary to what you hear from the fearmongers, hasn't meaningfully increased over the last 20 years. It just struck me as a Schumpeterian, right?

Because I think, I think a lot of the classical liberal types, Robert they do see capitalism as very deconcentrated, right? They... 'cause Smith kind of did, right? And then, small firms and whatnot. But I think the point of the consumer welfare standard is it's moving away from the structural idea of competition, right? It's about performance. It's about consumers. As a Schumpeterian that's really important, right? Because sometimes we recognize that capitalism is working and there may not be a lot of structural competition.

Robert Bork Jr.: That chapter in of itself is worth buying the book just to get a, such a concise summary of just how bad the Lina Khan administration the FTC was.

Joseph V. Coniglio: But okay, so moving on You also bring some international dynamics in your book, and you talk a lot about the European Union and some of the things that are going on [00:21:00] there. And I do have to say, I think it's somewhat ironic now that you're seeing conservatives who are very critical of certain European Union policies and economics in other places now want to adopt, in some ways, similar ideas here at home.

Certain potential antitrust legislation, despite, of course, as you already indicated, the vast discrepancy in economic performance between the United States and Europe over the last 40 years, and especially when it comes to driving innovation, right? And the Europeans now are very well aware of that when you think of things like the Draghi report.

So, what's going on there?

Robert Bork Jr.: It's hard to understand why conservatives now fawn over some European ideas and policies. It's a profound irony. As you say, for years conservatives correctly criticized European competition policy because Europe often treats antitrust as a regulatory mechanism designed to restrain successful firms rather than protect consumers.

Meanwhile, the United States, under the consumer welfare standard, produced dramatically greater innovation, especially in technology. You don't see-- there's no smartphone made in Europe. There's no "Pomme" as compared to Apple. There's greater innovation here, especially in technology, capital formation, and entrepreneurial growth.

Yet now some conservatives, as you point out, want to import European assumptions into American law, just like their progressive brethren because they're angry at certain corporations or worried about cultural influence. But bad ideas, demonstrably bad ideas, do not become good ideas simply because your political opponents happen to be the current targets. Europe's record should serve as a cautionary tale. Over-regulation and politicized competition policy often protect incumbents, discourage innovation, and slow economic growth. Just look at Europe. America's comparative advantage historically has been its willingness to allow creative destruction, there you go, and entrepreneurial dynamism.

Joseph V. Coniglio: Love it.

Robert Bork Jr.: I told you I'd get there sooner or later, anyway.

Joseph V. Coniglio: I appreciate that. One of the unspoken rules is if you come on the ITIF Schumpeter Podcast, you have to say something good about Schumpeter.

Robert Bork Jr.: Do I get a t-shirt or something?

Joseph V. Coniglio: It's in the mail. But one thing I want to follow up here on the international element, you do talk a lot about China. And one thing I would just ask is we know conservative socialism is a bad idea, but is there any room to maybe bring in some industrial policy concerns, more general or even into antitrust potentially to deal with China? What's your view on that?

Robert Bork Jr.: China is a special case, isn't it? I think we have to regard China not as a competitor but as a threat. China is not a competitor per se. It's a competitive threat and one that is willing to do just about anything to grab our technology, grab our data. It's unfortunate that some progressives in Congress try to write antitrust laws, that will actually aid China in their attempts at business and economic domination, which they are fully desirous of.

So, I guess in a way there's an example that proves the need for an exception to the general rule, and that would be China.

Joseph V. Coniglio: Yeah. And also too, there's a lot of ways I think even within the consumer welfare standard we can do things that can take into account China competition. For example, making sure we're not having too narrow geographic markets, right? These are, especially in digital tech, these are international markets, right? So, I think there are even a lot of things we can do within the consumer welfare framework.

Moving on, you already mentioned that the second Trump administration, I think there was some hope that, after the Biden administration, we might move away from some of these really harmful antitrust policies, especially at the FTC. And I, we could name them all day, but, in particular, the Biden merger guidelines, the Section 5 policy statement, and even things like the revival of the Robinson-Patman Act. But we haven't really seen a lot of change as perhaps as much as some of us might have hoped.

So, what's your take on why that is? And can we maybe... is it too soon to give up hope? What do you think?

Robert Bork Jr.: I'm not exactly sure if there is potentially any hope other than the end of this administration. Before all the Trumpies out there, or maybe they don't watch you, I don't know—

Joseph V. Coniglio: I hope they do.

Robert Bork Jr.: Before they denounce me on other things, I have some grudging respect for what the Trump administration is doing and has accomplished. When it comes to antitrust it is mind-boggling what they are doing, and unfortunately, I don't see any hope for change. In fact, I think it's going to get worse and I'll try to touch on all that.

First of all, it began in the first term, the first Trump term, with AT&T versus Time Warner. Why did that case happen? It was a vertical merger, vertical acquisition and which my father and others have said is really not a threat to competition. In fact, I find this amusing, AT&T discovered that it was a lousy deal a few years later when they figured out that they really had no understanding of how to manage a content company like Warner, Time Warner.

So, they spun it off, and it keeps getting spun off, and now we're back again having, pieces of it being bought elsewhere. In fact, when the Biden administration rewrote the merger guidelines and took out the consumer welfare, and only had three references to the word consumer in the footnotes I thought when the Trump people take over, they'll fix that. They'll go back to the old one, and they'll write a new one. And in a conversation I had with Andrew Ferguson at the time he said, "No, we're not going to do that. We got other things to do."

Joseph V. Coniglio: And he didn't.

Robert Bork Jr.: And he didn't.

Joseph V. Coniglio: So far.

Robert Bork Jr.: And then of course, Trump just, I think, wanted to make it easier to assert his point of view, his views on antitrust or on deals, I think deals, so, he fired the Democrats on the commission. They carry forward the cases brought by Lina and by the Justice Department in the Trump administration. Can only tell me that they really don't have any grounding in economic analysis or care.

Joseph V. Coniglio: Oh, absolutely. And I think people, it bears reiterating and remembering that the Obama administration did not bring a case against Google the FTC. And the first big tech cases were brought by Trump one. So, I think that the populism really did start there, no doubt about it.

But okay so you've talked about some of the concerns on the right as not even being really related to antitrust, but seeing antitrust as a tool to get back at what they see are these problems. And of course, the main one that you talk about in detail is censorship. Can I just ask you plainly, why is antitrust not the right tool to address conservative concerns about censorship?

Robert Bork Jr.: 'Cause that's not what it's supposed to do. Because antitrust is designed to protect competition, not regulate speech. I've had friends who've been censored by big tech and I'm not for regulating speech using antitrust because it's just not the right vehicle.

And someday we'll figure out what the right vehicle is, but it's not antitrust. I understand many conservatives feel frustrated by actual and perceived ideological bias on digital platforms, but it creates enormous problems. First, antitrust remedies are blunt instruments. They are not fine surgical tools.

Breaking up a company or blocking a merger does not guarantee viewpoint neutrality. Second, once government begins using antitrust to punish firms for political or cultural reasons, we invite overt politicization of economic regulation. And third, the cure may be worse than the disease. A government powerful enough to restructure markets because of perceived speech bias is also powerful enough to pressure speech directly. Conservatives have traditionally understood the dangers of concentrated government power, or at least they used to. But we should be careful not to abandon that insight simply because we have real and demonstrable concerns.

Joseph V. Coniglio: Yeah. No, it's interesting too because you talk about the censorship debate, talk about particular instances. Obviously, it's a case-by-case analysis. But I think in general, certainly the landscape for conservative speech is much better now than it was, let's say, 30 years ago when you had the majority of media concentrated within six New York media companies, right?

Clearly social media, clearly technology has been very good for the right and just free speech in general, regardless of whatever instances, of perceived censorship may exist and we can obviously debate. But one thing I did want to ask you as we move to the end of our episode is, you have a very impassioned defense of free speech in this chapter.

But as I noted, your father was a tremendously influential jurist, not just in antitrust, but in other areas as well. And he does have this famous chapter in Slouching Towards Gomorrah on the case for censorship. Which is curious, do you have any thoughts on that given your own impassioned defense of free speech generally?

Robert Bork Jr.: I think those who think I'm a nepo baby of antitrust might be pleased to know that my father and I don't always agree on everything.

Joseph V. Coniglio: What a surprise.

Robert Bork Jr.: Yeah. It's tempting, as I've said, to want to block speech that you find offensive. But I don't think that works. It's certainly against our constitutional order to do that.

I think even when you see the kind of speech we see on the streets now every day on the news, I think we just have to beat them at the ballot box, beat them with our arguments. My father, I think what you referred to, I think he famously thought that the only speech that should be protected was political speech. And of course, everything these days is political speech. But yeah, I think I would disagree with him that we should be painting with a big brush, whitewashing over the things we don't like as much. I just change the channel, and now there's so many channels, so I can just change the channel.

Joseph V. Coniglio: There's a lot of choice. And so, before we conclude, I got one more antitrust question I want to ask. I think, reading your book, you do an excellent job of showing what antitrust, the future of antitrust should not be. We don't want to embrace big is bad. We don't want a politicized antitrust regime.

But I would ask, are there ways we can still amend antitrust going forward? Recognizing that, throughout the history of antitrust, there's been change. And maybe we're in another period where there will be change. And, thinking about the positivistic framework of consumer welfare, right?

It's just focused on economics. Now traditionally, conservative jurisprudence, things like natural law, they do bring in some moral concerns and things like that. Or in my own case, being more sensitive to innovation, right? Some people have suggested that the Chicago School approach was too focused on price and not innovation.

Are there ways we can move antitrust forward in a positive direction without making the mistakes of big is bad, conservative socialism, and politicization?

Robert Bork Jr.: Yeah. There probably are. Those are the big, however, those are the big movements right now and we have to rein those in if we're going to try to make even modest improvements in antitrust law. One of the things when I got into this, remember, I was not an antitrust expert.

At least I'm dangerous now in antitrust. I know enough to be dangerous. And I'm here advocating really my father's legacy. But the thing about antitrust that suddenly occurred to me was, "Hey, wait a second. The consumer welfare standard is not a law. It's not a statute. It's judge, Supreme Court-created law. Why don't we go back to Congress and see if we can get it right, get it fixed, make a statute out of it?" And then it occurred to me, boy, that would be a disaster because if we open this up to popular consensus making it will undermine all the benefits of the consumer welfare standard and introduce all sorts of other crazy stuff that would really be harmful to us consumers, we consumers and the economy and capitalism. So, I guess I'm against that.

So, that's not the way to go. If anybody thought that was the way to go, that's not the way to go. I do think, though, that the way to go is to have the people like you have on your podcast talking up these ideas enough to the point where... look, my father wrote a book, and the Supreme Court said, "That's a good idea." So, we should have more intellectual debate, and then some enterprising lawyer should introduce some of these ideas into an antitrust case, and this Supreme Court, I think, currently might be interested in making a tweak here or there.

That's the way to go.

Joseph V. Coniglio: I want to end just where you left off about that book that your father wrote, if I may. Your book is very personal in some respects, and one of the parts that I really liked when I read it was you talk about your father actually writing The Antitrust Paradox. And, if you believe what you hear from people today, especially on the left, you would've thought this was done maybe in some wood-paneled fancy New York law firm, supervised by corporate America and some vast right-wing corporate conspiracy.

But as you describe, as somebody who's actually there your dad gave up a lucrative career in law to teach, and then wrote the book in a small attic on a desk that your mother converted from an old door. I thought that was an amazing story. But I invite you, any other personal stories you might be willing to share with us about your father and his legacy?

Robert Bork Jr.: I just think that my father understood something important that is often forgotten today, that once law becomes detached from neutral principles, everybody thinks, he was out to enforce his view of the world on the Constitution or other things. It was, for him, the basis of all of it, was neutral principles, going back to antitrust and then constitutional law, administrative law.

It's inevitable that when that happens, if it becomes detached from neutral principles, that political power will be exercised by other means. And one thing I came to appreciate over time is that the temptation to use state power exists on the right as well as the left, and no political movement is immune from it. So that's, I think, the gift I got from my father and my own study. And so when I reference that in this book I'm really issuing a warning that conservatives should not abandon the principles that once distinguished them— limited government, free enterprise, and a respect for the rule of law— simply because the political environment has become frustrating. That, and that's, I think, the bottom line.

Joseph V. Coniglio: No, but that's a great place to end. With that, I think I will conclude and just make a concluding statement. It's really, Robert, really a pleasure to have you here and I think the very simple truth is nobody's ever going to fully agree with any antitrust or political economy theory, but clearly the work of your father improved antitrust for the better and had a huge positive impact and that, that's really, I think, the bottom line.

Thank you so much to everybody who listened to this really great episode. Stay tuned next month for our next episode of Creative Discussion where we'll be featuring another great antitrust thinker. And Robert, thanks again for joining us. Really appreciate your time.

Robert Bork Jr.: I'm so grateful for this opportunity.​