Wednesday, December 19, 2012

In Memoriam: Robert Bork (1927-2012)

Chicago's memorial notice is here.  It correctly emphasizes his most important scholarly work, in the field of antitrust.   In the legal academy, he was probably more widely known for his 1971 paper, "Neutral Principles and Some First Amendment Problems," a forceful argument for the proposition that, "Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other."   It also included the striking claim that,

Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups. When the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh the respective claims to pleasure.

Much later in his career, this kind of hedonic value relativism would vanish from his work.

In the broader culture, of course, Judge Bork may be most-remembered for his name having been turned into a verb:  "to bork" a judicial nominee was to subject the nominee to political attack (perhaps unfair political attack).  In order to avoid being "borked," candidates for judicial office without substantial "paper trails" were preferred.  My most striking recollection from the time of his unsuccessful nomination to the Court by President Reagan was the explanation offered to me by a senior partner at my New York law firm, who was subsequently President of the New York City Bar Association (which opposed the nomination).  He said that what persuaded the NYC Bar to oppose Judge Bork was his willingness to overrule settled precedents that he deemed not to have a sound constitutional basis.  Despite his seminal work on antitrust, it was overshadowed in the mind of these corporate lawyers by the constitutional vision of the 1971 paper, and what they felt was its contempt for precedent.

UPDATE:  Interesting reflections on Judge Bork's career from Michael Dorf (Cornell).

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