The New Brandeis Movement: America’s Antimonopoly Debate

Summary

Over the last two years, a growing number in America have concluded that the United States has a monopoly problem. The Obama Administration’s Council of Economic Advisers linked rising market power with inequality and other ills, top Senators have called for reinvigorating competition policy, and the Democratic Party has identified antitrust enforcement as a key pillar of its economic agenda. This recognition is important because seeing and understanding the problem is the first step to addressing it. In some ways the renewed attention in the USA echoes conversations in Europe, where the antitrust community is debating whether and to what degree competition law should embody values of fairness.

In the USA, the discussion has been largely driven by the work of a small group of scholars, journalists, lawyers, and organisers. It was their research and writings that sounded the first alarms about the extreme and growing concentration in most sectors of the American economy, and first called into question the philosophy of competition policy and antitrust that has prevailed in America for the last 35 years. Sometimes called the ‘New Brandeis School,’ this group signals a break with the Chicago School, whose ideas set antitrust on a radically new course starting in the 1970s and 1980s and continue to underpin competition policy in the USA today.

As the name suggests, this new movement traces its intellectual roots to Justice Louis Brandeis, who served on the Supreme Court between 1916 and 1939. Brandeis was a strong proponent of America’s Madisonian traditions— which aim at a democratic distribution of power and opportunity in the political economy. Early in the twentieth century, Brandeis successfully updated America’s antimonopoly regime, along Madisonian lines, for the industrial era, and his philosophy held sway well into the 1970s. As the ‘New Brandeis School’ gains prominence—even prompting two floor speeches by Senator Orrin Hatch (a Republican from Utah)—it’s worth understanding what this vision of antimonopoly does and does not represent. Below is an attempt to sketch out some of the core tenets of this school.