Robert H. Bork

Legislative Intent and the Policy of the Sherman Act

DESPITE the obvious importance of the question to a statute as vaguely phrased as the Sherman Act, the federal courts in all the years since 1890 have never arrived at a definitive statement of the values or policies which control the laws application and evolution. The question of values, therefore, remains central to controversy about this basic law and its interpretation. More than one factor bears upon the answer to the question. Courts do not and should not, for example, attempt to administer any policy a legislature may seek to thrust upon them.1 Nevertheless, a starting point is the question of legislative intent.2 In this paper I propose to examine that question. My conclusion, drawn from the evidence in the Congressional Record, is that Congress intended the courts to implement (that is, to take into account in the decision of cases) only that value we would today call consumer welfare. To put it another way, the policy the courts were intended to apply is the maximization of wealth or consumer want satisfaction. This requires courts to distinguish between agreements or activities that increase wealth through efficiency and those that decrease it through restriction of output. Failure to settle the issue of values has led inevitably to a degree of ir-