How Much Brandeis Do the Neo-Brandeisians Want?

AuthorDaniel A. Crane
Date01 December 2019
Published date01 December 2019
How Much Brandeis
Do the Neo-Brandeisians Want?
Daniel A. Crane*
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?
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
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.
The Antitrust Bulletin
2019, Vol. 64(4) 531-539
ªThe Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/0003603X19875039

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