The End of the Road for Dr. Miles: Leegin Creative Leather Products, Inc. v. PSKS, Inc.

By Robert T. Miller
October 01, 2007
When Robert Bork published The Antitrust Paradox in 1978, he could argue that in antitrust law “the general movement has been away from legislative decision by Congress and toward political choice by courts, away from the ideal of competition and toward the older idea of protected status for each producer, away from concern for general welfare and toward concern for interest groups, and away from the ideal of liberty toward the ideal of enforced equality.” Bork was then a leader of the Chicago School of antitrust analysis, which insisted that the exclusive goal of antitrust adjudication should be the maximization of consumer welfare as determined by the most rigorous economic analysis practically available. In the fifteen years following the publication of that book, the United States Supreme Court has adopted the Chicago School arguments with a rapidity and thoroughness that has astonished even the Chicagoans themselves. By 1993, when Bork was writing a new introduction to the book, he could with complete justice speak about a “seachange” and even a “revolution” in antitrust jurisprudence. Moreover, all this happened largely without ideological rancor. Justices conventionally thought of as liberal as well as those conventionally thought of as conservative adopted Chicago School ideas in antitrust. Antitrust has become one of the least ideological areas of Supreme Court jurisprudence....