Remembering Bob Pitofsky, Defender of Democracy and American Liberty

When Robert Pitofsky died at his home on October 6, at age 88, the antitrust community lost not only a courageous enforcer of the law but a serious scholar of history who understood that private monopoly is one of the greatest threats to American liberty and democracy.

Pitofsky’s landmark 1979 article in the University of Pennsylvania Law Review, “The Political Content of Antitrust,” has, for a full generation of enforcers, served as the most important description of the role that antitrust must play in dispersing economic and political power. Later, as chairman of the Federal Trade Commission in the 1990s, Pitofsky led fights to prevent concentration of power over the news media and book publishers.

In 1987, Pitofsky’s testimony to the Senate Judiciary Committee played a key role in the Senate’s rejection of Robert Bork’s nomination to the Supreme Court. Pitofsky focused on the anti-democratic nature of Bork’s philosophy. “He has expressed a fundamental disdain for the ability of Congress to legislate in the economic field or to understand economics, and a view that the courts have been weak and spineless in going along with Congress' silly laws in this area.”

Albert Foer, founder and former president of the American Antitrust Institute, said Pitofsky believed “antitrust has to pay attention to its historical, legislative background, which includes a lot of constitutional-type values: decentralization, and checks and balances that would apply to the economy as well as to the polity.”

Eleanor Fox, the Walter J. Derenberg Professor of Trade Regulation at New York University School of Law, said Pitofsky believed “that the antitrust laws were to protect those who were not in power, not to protect those who were."

Pitofsky, Fox added, “was concerned that the Bork view was going to devastate the antitrust laws and make them very sympathetic to incumbents. Which, of course, is what happened.”

Eleanor Fox on Robert Pitofsky

Earlier this week, Open Markets spoke with Eleanor Fox about her work - and friendship - with Robert Pitofsky. In one of her stories, Fox recounted meeting with EU Competition Commissioner Karel van Miert, along with Pitofsky, in the 1990s.

“Van Miert was very interested in what was happening in the United States, and the theories of competition and the protection of competition here. He had a lot of questions that he wanted to ask us.

But as it turned out, which was extremely usual at the time, he really wanted to ask a man. We were, the three of us, sitting on the couch and two chairs. We were just sitting and chatting. And every time he asked a question, he would ask Bob.

And then Bob started to say, ‘Oh, I think Eleanor has a really good answer to that question.’ He said it several times, because van Miert persisted.

I remember that. That’s happened to me lots of times, but I can’t remember another time when somebody like Bob turned to me and brought me in very centrally. I would’ve otherwise been marginalized from the conversation.”