[ameister14]

Basically it should be illegal per se but since the 70's the Court has really limited how they apply that and so courts generally prefer to do a competitive analysis/quick look first. In this case, the argument might be that since the cost to consumer doesn't increase, it isn't a naked price fix so it's not per se illegal.

As I learned it, since BMI & ASCAP v. CBS, in 1979, it's essentially been that the per se rule is applied when the courts have enough experience with an accused restraint to know that it is so plainly anticompetitive, and so often lacks any redeeming virtue, that further inquiry in any given case is almost certainly wasted effort

Bork and his acolytes really screwed us, basically, turning a half-baked understanding of economics into a justification to ignore legislation and 60+ years of jurisprudence, and that's carried the day since.

[actionfromafar]

Is that why call things getting "borked"?

[mcherm]

It is not.

Judge Bork was proposed as a candidate for the US Supreme Court. While the Senate was reviewing his nomination they began discussing his actual views on various topics which were so abhorrent that the Senate voted not to confirm him. The conservative community complained he had been treated unfairly and coined the term.

[rayiner]

The Senate voted not to confirm Bork because Democrats controlled the Senate 55-45 and had the power to insist on a more ideologically liberal nominee. (Which I think is a fair use of the advice and consent power by the way. And a successful gambit, because they got Anthony Kennedy, who swung liberal on many key votes.)

Bork was subject to attacks on his views of constitutional law. Many of the attacks were just not true. The Wikipedia write up on this is quite even-handed: https://en.wikipedia.org/wiki/Robert_Bork.

Apart from that, “abhorrent” is not a word that makes sense in discussing legal interpretation. It’s a category error. For example, Bork believed the Civil Rights Act of 1964 (which his party got through Congress) was unconstitutional. To this day, the law rests on shaky Commerce Clause footings with all sorts of exceptions and caveats to avoid conflict with the first amendment freedom of association and to overcome Congress’s lack of authority to regulate morality directly.[1] The attacks on him over it was midwits having an emotional reaction to a complex legal debate that was beyond their understanding.

Bork’s antitrust theories, and its foundation in armchair economics analysis, is far better target for criticism. Ironically, that wasn’t the subject of Ted Kennedy’s speech against his candidacy.

[1] You can see this tension in the laws themselves. Why doesn’t the Fair Housing Act apply to small, owner-occupied rental properties? Because Congress lacks the constitutional power to force people to not be racist in their choice of who they live with. In more than half a century, liberals haven’t even seriously attacked these carve outs even though they would seem like low hanging fruit.

[dctoedt]

> Bork believed the Civil Rights Act of 1964 (which his party got through Congress) was unconstitutional.

Um: You're massively overstating the case for GOP involvement in the Civil Rights Act. The Act was muscled through by President Lyndon Johnson — a Democrat and protégé of LBJ; liberal congressional Democrats; and a few (and now-extinct) liberal Republicans. The racist, segregation-forever southern Democrats, who as powerful committee chairs had blocked civil-rights legislation for decades — mostly died off or became Republicans in the 1970s and 1980s thanks to the GOP's "Southern Strategy."

[rayiner]

> The racist, segregation-forever southern Democrats, who as powerful committee chairs had blocked civil-rights legislation for decades — mostly died off or became Republicans in the 1970s and 1980s thanks to the GOP's "Southern Strategy."

Why would racists mad about Democrats supporting the Civil Rights Act of 1964 respond by switching to the party that had pushed through every other Civil Rights Act before it? Of course, they didn't. Of the 21 Democrat Senators who had opposed the Civil Rights Act, just one became a Republican.

The landslide GOP wins in 1972, 1980, 1984, and 1988 obscure subsequent trends, but in 1976, Carter still won the usual southern states. Even in 1980, a generation after the Civil Rights Act of 1964, Reagan won New York by a larger margin than he won Alabama and South Carolina.

Southern realignment was driven by economic development. The south voted democrat in 1950 for the same reason black people did: because they were poor and Democrats were the New Deal party. In 1950 Illinois's pre capita income was double that of Alabama: https://fred.stlouisfed.org/release/tables?eid=257197&od=195.... Staring in the 1960s, the south experienced rapid urbanization and economic development (the "New South"). The south's competitive advantage against the north was lower taxes, lower regulation, and Right to Work laws--all Republican policies. By 1990, Illinois's per capita income was only 33% higher than Alabama.

This is clearer by looking at Virginia--the Capital of the Confederacy. Virginia was part of the Solid South in the early 20th century. It voted for FDR by more than double the national margin in 1944. But by 1960, Virginia was pretty reliably Republican, voting for Nixon in 1960 over JFK (even though JFK won deep south states like Georgia by 25 points). You can't explain Virginia's flip by pointing to racial politics. The reason it flipped was because Virginia industrialized earlier than the other southern states. In 1950, Virginia's per-capita income was already halfway between Alabama and Illinois. In 1970, Illinois was only 10% ahead of Virginia, but was still 50% ahead of Alabama. The other southern states followed the same GOP shift, they just did so decades later because their economies industrialized decades after Virginia's.

The "southern strategy" narrative is a tremendous example of white people's gullibility when it comes to race issues. It's based almost entirely on one 1981 interview with Lee Atwater, who didn't even work on the Nixon campaign, or on Reagan's 1980 campaign. And it's based on a premise that's simply absurd if you think about it for a minute. The south flocked to republicans in the 1980s to punish democrats for a law that Democrats had voted for in 1964 (but which Republicans had voted for by an even larger margin)--nevermind the fact that, during this time, the south built an economy on siphoning jobs from blue states through business-friendly GOP policies. Also ignore the fact that the major issue in the 1970s and 1980s when all this was happening was the threat of the communist, atheist Soviet Union, where southerners naturally fit into the GOP bloc.

[dctoedt]

> Why would racists mad about Democrats supporting the Civil Rights Act of 1964 respond by switching to the party that had pushed through every other Civil Rights Act before it? Of course, they didn't.

Your revisionism is pretty glaring to anyone who was paying attention during the mid-1960s, as I was — my USAF dad was stationed in east Texas then, which was more deep South than Old West.

Let's just say we have very different takes on what can motivate humans, individually and in groups. At the risk of sounding condescending: I used to feel somewhat the way you seem to. My naively-rationalist and very-judgmental views evolved as the years went on. The evolution was driven largely by life experience, which drove home the brute facts of human inadequacy, irrationality, and just plain fuck-ups — principally my own, along with those of friends and loved ones — along with the pervasive role of random chance. It took quite a while to figure out how my rationalist, judgmental worldview could accommodate those brute facts (spoiler: it couldn't).

[ameister14]

While I generally agree with your foundation of the political switch, I just want to point out that elections in the 1970's through 1990's were still very regional. Southern candidates tended to do well in the South against candidates from California or the North, despite policy differences that would seem to strike the other way. The JFK/Nixon election was much more of an urbanization/rural divide as both candidates were from away.

Carter being a Georgia peanut farmer made a huge difference in GA, AL, and SC voting in the 1976 and 1980 elections. You have to remember, he was the first deep south president since the civil war - white voters especially really cared about that. He was just also a disaster of a president, which is a big reason he lost anyway.

[rayiner]

The current state of antitrust law expands far beyond Bork and conservatives. I’d be surprised if any of the top antitrust scholars are conservatives: https://leiterlawschool.typepad.com/leiter/2021/10/10-most-c...

[ameister14]

I'm not saying current political conservatives are the cause, Bork was hugely influential beyond traditional conservative circles, particularly in antitrust law.

If you read Bork's work, especially The Antitrust Paradox, and if you study the caselaw prior to and post 1970's, you'll see a stark difference.

It was really a conservative idea at that point but I'd say it's more neoliberal, which has a strong backing in the democratic party and has for decades, beginning with Carter.

The per se analysis and application, particularly, is just massively different from the pre-Bork era. He's the single largest reason that the three main elements of cost, quality, and quantity as a standard for antitrust analysis has eventually boiled down almost entirely to cost, partially because it's so much easier to measure but also because he advocated for it as a mechanism to measure business efficiency.

One of the big problems of this is the change in fundamentals since Bork was writing in the 70's, particularly with union membership declining so heavily. He was countering a very strong and powerful union system and factored that into his analysis, and we just don't have that in the private sector any longer.

I've been working on a paper for a while about theoretically adding in wage and labor market analysis into the mix, particularly with monopoly and monopsony situations, but it's kinda stalled since I've been clerking.

Honestly, read the guy's book and read some cases if you're interested. You'll see it fairly quickly.

[rayiner]

I think we basically agree. My point is that his ideas gained so much traction because neoliberalism was ascendant during this period. Law & economics started in the 1960s, and as you note, by Carter it had widely reshaped regulatory law in general.