How Much Brandeis Do the Neo-Brandeisians Want?

• Author: Daniel A. Crane
• Date: 01 December 2019
• Published date: 01 December 2019
• DOI: 10.1177/0003603X19875039

Article

How Much Brandeis

Do the Neo-Brandeisians Want?

Daniel A. Crane*

Abstract

The neo-Brandeis school of antitrust has suddenly emerged as a viable challenger to the reigning

consumer welfare establishment. Assuming the mantle of Brandeis gives the neo-Brandeisians a

historically grounded brand but also comes with some baggage. Among other things, the neo-

Brandeisians need to be prepared to answer the following questions: (1) Will they follow Brandeis in

seeing bigness as a curse not only in business but also in government? (2) Will they break cleanly with

welfarism and adhereto a moral, social, and political theoryof anti-bigness, even at the cost of efficiency?

and (3) Will they commit themselves genuinely to Brandeis’s empiricism—that facts on the ground

trump theories, wherever the facts may lead?

Keywords

Brandeis, curse of bigness, efficiency

In the last two years, the self-styled neo-Brandeis movement has emerged out of virtually nowhere to

claim a position at the bargaining table over antitrust reform and the future of the antitrust enterprise.

Unlike the Chicago School, which spent more than two decades laying the intellectual framework for

its assault on the structuralist status quo before it emerged as an influential force in the courts and,

among political elites, the neo-Brandeisians are just beginning to articulate their agenda on a scholarly

basis even as they are already at the center of antitrust reform dis cussions in Washington. The

simultaneity of the neo-Brandeisians’ efforts to articulate their agenda on a scholarly basis with their

political influence may not be an obstacle in this case, since the neo-Brandeisians seem mostly to be

courting the expressly political branches of government—the President (mostly presidential candi-

dates) and especially Congress—rather than the courts, which typically take a longer incubation period

to bring on board a movement. Nonetheless, to skeptics of the movement like myself, the lack of a

significant body of work articulating the movement’s views creates a framing difficulty—how does

one critique a movement without a canon of literature or, to date, any tangible political or judicial

achievements?

*

Frederick Paul Furth Sr. Professor of Law, University of Michigan, Ann Arbor, MI 48109, USA

Corresponding Author:

Daniel A. Crane, Frederick Paul Furth Sr. Professor of Law, University of Michigan, 3066 Jeffries Hall, 625 South State Street,

Ann Arbor, MI 48109, USA.

Email: dancrane@umich.edu

The Antitrust Bulletin

2019, Vol. 64(4) 531-539

ªThe Author(s) 2019

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DOI: 10.1177/0003603X19875039

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