By Peter G. Klein
Alan J. Meese
Antitrust Law Journal 79, no. 3 (2014)
This essay, prepared for a conference examining Robert Bork’s antitrust contributions, examines Bork’s hitherto unknown role in the transaction cost economics (“TCE”) revolution. The essay recounts how, in 1966, Bork helped rediscover Coase’s 1937 article, The Nature of the Firm and employed Coase’s reasoning to explain how various forms of partial integration could reduce transaction costs. As the essay shows, Bork described how exclusive territories, customer restrictions and horizontal minimum price fixing that accompanied otherwise valid integration were voluntary efforts to overcome the costs of relying upon unfettered markets to conduct economic activity. To be sure, Bork did not develop a complete account of TCE capable of informing a full-fledged research program. Nonetheless, Bork did articulate and apply various tools of TCE, tools that reflected departures from the applied price theory tradition of industrial organization.
The essay also offers some brief speculation regarding why scholars have not recognized Bork’s early contributions to TCE. For one thing, Bork did not purport to offer a new economic paradigm. Instead, Bork repeatedly characterized his work as an application of basic price theory, the very economic paradigm that TCE overthrew with respect to the interpretation of non-standard contracts. Moreover, Bork did not persist in his critique of price theory’s once-dominant account of non-standard contracts. After reiterating his views in 1968, for instance, he did not revisit the economics of non-standard agreements for nearly a decade. Finally, when Bork did return to the topic, he deemphasized TCE-based arguments and focused more on the claim that such agreements could not add to the market power already possessed by manufacturers and thus could not produce economic harm. In short, Bork’s failure to reiterate his TCE-based interpretation of non-standard agreements seems partly responsible for the lack of recognition his early contributions have received.
On Bork see also Jack High’s useful 1984 paper, “Bork’s Paradox: Static vs. Dynamic Efficiency in Antitrust Analysis.”
This post originally appeared on organizationsandmarkets.com.