Robert Bork has passed away

by on December 19, 2012 at 11:52 am in Current Affairs, Economics, Law | Permalink

Here is an appreciation from AEI, and here is LA Times coverage, and the NYT.  Here is Bork on  I liked him as an antitrust analyst, less as a moralist or legal or political theorist.

1 JMC December 19, 2012 at 12:05 pm

“Yet “gay rights” have come to the fore and we must have a discussion, free of ad hominem accusations, about whether homosexual acts and relationships are to be regarded as on a par with the marital relationship of a man and a woman. The immediate problem is the homosexual activists’ drive for same-sex marriage…The Federal Marriage Amendment is an attempt, and perhaps the only hope, to preserve marriage as an institution of incalculable value.”

–Robert Bork.

2 Andrew' December 19, 2012 at 12:56 pm

Well, nobody’s perfect, but you seem to have forgotten the link and a little more context:
“To try to prevent legislatures from enacting permission for civil unions by constitutional amendment would be to reach too far. It would give opponents the opening to say we do not trust the people when, in fact, we are trying to prevent courts from thwarting the will of the people. “

3 liberalarts December 19, 2012 at 2:15 pm

But Andrew: “The activists want it as an expression of moral approbation of homosexual conduct. Many Americans have no desire to impose criminal sanctions on homosexual sodomy. Nevertheless, it is clear that most Americans do not want to create special rights for homosexuals or to consider their behavior morally neutral.”

If the will of the people is to consider same sex marriage a special right for homosexuals, rather than to consider it a generalization of the current special right for only heterosexuals to marry, then he is off base. It is the standard conservative argument that the courts should not “legislate from the bench against the will of the majority” when the courts defend unpopular positions.

4 Andrew' December 19, 2012 at 4:48 pm

He’s dead.

I simply pointed out that the actual opinion is a little different from the excerpt JMC extracted and apparently cobbled together.

I wish this service on this blog alone wasn’t more than a full time job. Help wanted…

5 Rahul December 20, 2012 at 6:59 am

This tidbit was interesting:

“On June 6, 2007, Bork filed suit in federal court in New York City against the Yale Club over an incident that had occurred a year earlier. Bork alleged that, while trying to reach the dais to speak at an event, he fell, because of the Yale Club’s failure to provide any steps or handrail between the floor and the dais. After his fall, he successfully climbed to the dais and delivered his speech.”

Jurists aren’t above temptation.

6 ladderff December 20, 2012 at 9:25 am

I guess Amendments are only supposed to be left-wing… was that your point?

7 Go Kings, Go December 19, 2012 at 12:21 pm

I liked him as an antitrust analyst, less as a …. legal ….theorist

This is my opportunity to retort, “you’re an economist, you don’t know anything about the law”. But that would be ridiculous and stupid, so I better not.

8 Eric H December 22, 2012 at 11:02 am

Are you referencing the same Tyler Cowen who teaches the Law and Literature course at GMU? Good thing you didn’t retort.

9 Tom December 19, 2012 at 12:57 pm

He is one of those that shared in the ruination of US antitrust policy, laws that had been put in place to ensure competitive markets were reworked by Bork and others (Posner, etc.) to disregard competition concerns and change them to be concerned mainly with efficiency – which basically has been just cover for allowing corporate power to increase vis-a -vis workers. Probably the main reason we have so many oligopolist markets nowadays, that thrive less on innovation and more on securing more of the public purse thru lobbying.

10 FredR December 19, 2012 at 2:03 pm

Yeah I’d be interested in a seeing a serious (i.e. not from a totally left-wing ideological source) analysis of the possible negative impacts of that legal movement. Although I think I understand the logical justification, I get the feeling these days that people might want to re-evaluate.

11 Jack December 19, 2012 at 6:19 pm

You won’t find it, because it’s not a position that many (if any) mainstream economists share. You can probably find some lawyers sharing the same view, but in terms of econ it makes no ****ing sense.

12 GiT December 19, 2012 at 3:25 pm

How did you like him as a cover up artist?

13 Eric H December 22, 2012 at 11:05 am

I preferred him as a shoegazer bass player.

14 bmcburney December 19, 2012 at 6:23 pm

My guess is that you liked him as an anti-trust theorist because you know something about his writings in that area.

My guess is that you rely on the media for your opinions of him as a moralist, legal and political theorist.

15 Millian December 19, 2012 at 6:37 pm

You underestimate Tyler’s volume of average daily reading.

16 Steko December 19, 2012 at 10:02 pm

You don’t need to read much Bork to realize he was an absolute tool:

“Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law.”

How this guy got a reputation as some kind of deep thinking legal genius is beyond me.

17 Mondfledermaus December 20, 2012 at 1:58 pm

The funny part is that under that definition all those Bork loving tea-party, survivalists and 2A absolutists types would be thrown in Jail.

18 bmcburney December 20, 2012 at 3:55 pm

Steko – How does the quote get the First Amendment wrong? How does it show Bork was a “tool”? Have you read anything by Bork other than this quote?

19 bmcburney December 20, 2012 at 3:50 pm

No, I have been following the story so far. The volume of reading is certainly there but I have seen no indication that Tyler reads anything in the subjects referenced. If he did, I don’t think he would say what he said.

20 Enrique December 21, 2012 at 12:02 pm

The irony is that Bork (and his conservative bed-fellows) was just as activist and political as the liberal judges he criticizes — the only difference is in the content of their politics

21 bmcburney December 21, 2012 at 1:38 pm

This is flat-out wrong unless by “activist” you mean only “willing to make decisions which change the current status quo”. If that is what you mean, it is a trivial observation which misses the entire point of conservative jurisprudence.

22 Joseph Ward December 21, 2012 at 12:42 pm

I completely disagree with Mr. Bolton’s attempt to whitewash Bork’s history with regards to the so-called “Saturday Night Massacre.” He should not have fired Special Investigator Cox. It was completely inappropriately capitulating to pressures from President Nixon. This idea that if he hadn’t done it that all of the Department of Justice’s top brass would have stepped down does not excuse his actions. This act is not misunderstood. It is well understood and it was wrong. Bork was being a ‘yes man’ for Nixon in a role of government that had serious ethical duties to say ‘no.’

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