A central question raised by the recent surge of neo-Brandeisian scholarship and advocacy is whether the nascent movement will deliver any form of lasting change to antitrust. In his essay for this issue of Business History Review, Daniel Crane is doubtful. He argues that critiques of the Chicago School are often simplistic and misunderstand its legacy, which includes institutionalizing economic theory in antitrust analysis in ways that even its post-Chicago critics absorbed and built on. The “consumer welfare” standard, Crane notes, still draws wide support across the ideological spectrum and may be capacious enough to accommodate a variety of approaches to enforcement. While critics of the Chicago School abound, there is “not an obvious replacement in sight” (p. 760). If anything, Crane observes, the moment presents an opportunity for post-Chicago scholars to “make significant inroads” in lieu of the “barbarians at the gate” (p. 775).
It is undeniable that the “New Brandeis” movement remains in its early stages and has yet to issue a sweeping and comprehensive reform agenda akin to what Chicago delivered. Most successful intellectual and legal movements are built and refined over many years, if not decades. Indeed, nearly twenty-five years passed between the founding of Chicago's Free Market Study Group and its influence on antitrust law and policy. The task facing New Brandeisians in the coming years is to translate their critiques of the current approach into legal rules and to offer an analytical framework for identifying conduct and transactions that should be prohibited under the antitrust laws. While several scholars are already pursuing this work, much remains to be done.
That said, the metrics by which Crane is anticipating the movement's (lack of) success neglect aspects of the New Brandeis institutional agenda and overlook how its efforts are already influencing Congress, the federal antitrust agencies, and state attorneys general. Crane correctly notes that U.S. antitrust policy is “largely made by the courts” and that the “inherently conservative” judiciary is unlikely to abandon key tenets of Chicago and post-Chicago analysis anytime soon (p. 778). Yet the New Brandeis school's recommended reforms include rearranging the institutional structure of antitrust enforcement away from the courts.Footnote 1 Greater reliance on bright-line rules and presumptions, for example, would curb the judiciary's interpretive role in antitrust, while competition rulemaking by the Federal Trade Commission (FTC) would introduce an administrative approach to creating substantive antitrust rules, ending the exclusive reliance on case law.Footnote 2
Meanwhile, even under the current institutional structure, New Brandeisian critiques of both dominant technology platforms and the consumer welfare standard have prompted enforcers and lawmakers to respond. The Justice Department, FTC, and fifty state attorneys general have all initiated antitrust investigations into dominant tech platforms, and the Antitrust Division recently announced that “consumer welfare” can reach anticompetitive conduct that harms workers. In Congress, members from both parties have called for more aggressive enforcement of existing antitrust laws and for a reconsideration of whether the current laws are adequate, while the House Subcommittee on Antitrust, Commercial, and Administrative Law is pursuing a congressional investigation into digital markets—the first corporate inquiry of its kind in decades. Given that the Chicago revolution was executed through the executive and judiciary—absent any change to the underlying statutes—renewed interest among lawmakers could mark the first opportunity for Congress to assess whether the Chicago approach serves the public interest and aligns with lawmakers’ conception of the purpose of antitrust. The “populist pressures are almost all external to the antitrust establishment,” Crane notes (p. 775). But the background conditions are so fluid that the political clout of the “establishment”—as well as who counts among them—is rapidly shifting.
Lastly, Crane calls for a more nuanced assessment of the Chicago School, noting that it was less a categorically anti-enforcement project than a program that reprioritized enforcement efforts and helped further “the growth of antitrust's professional class” (p. 774). It is true that the Chicago School did not abolish antitrust laws (although some of its adherents did publicly recommend that entire portions of antitrust law be repealed or left unenforced); instead, it enfeebled enforcement against monopolistic and oligopolistic companies, previously viewed as core targets of antitrust. But given that several figures associated with New Brandeis have argued that contemporary Chicago-influenced enforcers are weaponizing antitrust law against workers and small producers, Crane's claim that Chicago critics overlook this more textured legacy seems overly broad.Footnote 3
Crane is right that successfully replacing Chicago will require both fully understanding its rise and success—including its moves and internal conflicts—and influencing, replacing, or dislodging the professional class it helped institutionalize. New Brandeisians may have their work cut out for them in the coming years, but it is too early to prophesy the size and scope of their lasting effect.
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A central question raised by the recent surge of neo-Brandeisian scholarship and advocacy is whether the nascent movement will deliver any form of lasting change to antitrust. In his essay for this issue of Business History Review, Daniel Crane is doubtful. He argues that critiques of the Chicago School are often simplistic and misunderstand its legacy, which includes institutionalizing economic theory in antitrust analysis in ways that even its post-Chicago critics absorbed and built on. The “consumer welfare” standard, Crane notes, still draws wide support across the ideological spectrum and may be capacious enough to accommodate a variety of approaches to enforcement. While critics of the Chicago School abound, there is “not an obvious replacement in sight” (p. 760). If anything, Crane observes, the moment presents an opportunity for post-Chicago scholars to “make significant inroads” in lieu of the “barbarians at the gate” (p. 775).
It is undeniable that the “New Brandeis” movement remains in its early stages and has yet to issue a sweeping and comprehensive reform agenda akin to what Chicago delivered. Most successful intellectual and legal movements are built and refined over many years, if not decades. Indeed, nearly twenty-five years passed between the founding of Chicago's Free Market Study Group and its influence on antitrust law and policy. The task facing New Brandeisians in the coming years is to translate their critiques of the current approach into legal rules and to offer an analytical framework for identifying conduct and transactions that should be prohibited under the antitrust laws. While several scholars are already pursuing this work, much remains to be done.
That said, the metrics by which Crane is anticipating the movement's (lack of) success neglect aspects of the New Brandeis institutional agenda and overlook how its efforts are already influencing Congress, the federal antitrust agencies, and state attorneys general. Crane correctly notes that U.S. antitrust policy is “largely made by the courts” and that the “inherently conservative” judiciary is unlikely to abandon key tenets of Chicago and post-Chicago analysis anytime soon (p. 778). Yet the New Brandeis school's recommended reforms include rearranging the institutional structure of antitrust enforcement away from the courts.Footnote 1 Greater reliance on bright-line rules and presumptions, for example, would curb the judiciary's interpretive role in antitrust, while competition rulemaking by the Federal Trade Commission (FTC) would introduce an administrative approach to creating substantive antitrust rules, ending the exclusive reliance on case law.Footnote 2
Meanwhile, even under the current institutional structure, New Brandeisian critiques of both dominant technology platforms and the consumer welfare standard have prompted enforcers and lawmakers to respond. The Justice Department, FTC, and fifty state attorneys general have all initiated antitrust investigations into dominant tech platforms, and the Antitrust Division recently announced that “consumer welfare” can reach anticompetitive conduct that harms workers. In Congress, members from both parties have called for more aggressive enforcement of existing antitrust laws and for a reconsideration of whether the current laws are adequate, while the House Subcommittee on Antitrust, Commercial, and Administrative Law is pursuing a congressional investigation into digital markets—the first corporate inquiry of its kind in decades. Given that the Chicago revolution was executed through the executive and judiciary—absent any change to the underlying statutes—renewed interest among lawmakers could mark the first opportunity for Congress to assess whether the Chicago approach serves the public interest and aligns with lawmakers’ conception of the purpose of antitrust. The “populist pressures are almost all external to the antitrust establishment,” Crane notes (p. 775). But the background conditions are so fluid that the political clout of the “establishment”—as well as who counts among them—is rapidly shifting.
Lastly, Crane calls for a more nuanced assessment of the Chicago School, noting that it was less a categorically anti-enforcement project than a program that reprioritized enforcement efforts and helped further “the growth of antitrust's professional class” (p. 774). It is true that the Chicago School did not abolish antitrust laws (although some of its adherents did publicly recommend that entire portions of antitrust law be repealed or left unenforced); instead, it enfeebled enforcement against monopolistic and oligopolistic companies, previously viewed as core targets of antitrust. But given that several figures associated with New Brandeis have argued that contemporary Chicago-influenced enforcers are weaponizing antitrust law against workers and small producers, Crane's claim that Chicago critics overlook this more textured legacy seems overly broad.Footnote 3
Crane is right that successfully replacing Chicago will require both fully understanding its rise and success—including its moves and internal conflicts—and influencing, replacing, or dislodging the professional class it helped institutionalize. New Brandeisians may have their work cut out for them in the coming years, but it is too early to prophesy the size and scope of their lasting effect.