Louis D. Brandeis and the New Brandeis Movement: Parallels and Differences

• Published date: 01 September 2023
• DOI: http://doi.org/10.1177/0003603X231182494
• Author: Manuel Wörsdörfer
• Date: 01 September 2023
• Subject Matter: Articles

https://doi.org/10.1177/0003603X231182494

The Antitrust Bulletin

2023, Vol. 68(3) 440 –459

© The Author(s) 2023

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DOI: 10.1177/0003603X231182494

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Article

Louis D. Brandeis and the New

Brandeis Movement: Parallels and

Differences

Manuel Wörsdörfer*

Abstract

The recent antitrust discourse in the U.S. is dominated by references to Brandeis and the New

Brandeis movement. While it is laudable that many researchers acknowledge Brandeis’ work and

recognize its business-ethical importance, it is also a missed opportunity to refer to him en passant

and not investigate his philosophy in more depth. The following sections attempt to fill this gap in

the academic literature by critically evaluating—and comparing—Brandeis’ social philosophy with

the one of the New Brandeis movement. The research questions of this paper are twofold: First, it

analyzes the parallels and differences between Brandeis and neo-Brandeisianism. Second, it addresses

the question of which references to his work are valid and legitimate and which ones are not. The

paper shows that Brandeis’ work encompasses much more than just competition policy; reducing him

to antitrust issues (only) does not do him justice as it ignores significant parts of his social philosophy.

The paper also shows that Brandeis was skeptical of big business and big government. In contrast,

the new Brandeis movement focuses solely on antibigness in the economy while ignoring Brandeis’

demand(s) in the political sector.

Keywords

Louis D. Brandeis, neo-Brandeisians, new Brandeis movement, antitrust, competition law/policy

I. Introduction

The recent “big tech and antitrust” discourse in the U.S. is dominated by references to Louis D. Brandeis

and the New Brandeis movement. According to some scholars, there are only two major American

antitrust traditions—the first one rooted in the work of Justice Brandeis, the other rooted in the work of

Robert Bork.1 Bork’s focus on neoclassical price theory, the error-cost framework, and “consumer

*Assistant Professor, Maine Business School and School of Computing and Information Science, The University of Maine,

Orono, ME, USA

Corresponding Author:

Manuel Wörsdörfer, Assistant Professor, Maine Business School and School of Computing and Information Science, The

University of Maine, Orono, ME 04469, USA.

Email: manuel.woersdoerfer@maine.edu

1182494ABXXXX10.1177/0003603X231182494The Antitrust BulletinWörsdörfer

research-article2023

1. See Nicolas Petit, Big tech aNd the digital ecoNomy (2020) (note that Petit distinguishes between neo-structuralism and

consumer welfarism). See also Jonathan Sallet, Louis Brandeis: A Man For This Season, 16 colo. tech. l. J. 365 (2018).

Wörsdörfer 441

2. See RoBeRt BoRk, the aNtitRust PaRadox (1978). See also Robert Bork & Ward Bowman, The Crisis in Antitrust, 65

colum. l. Rev. 363 (1965).

3. See Carl Bogus, The New Road to Serfdom: The Curse of Bigness and the Failure of Antitrust, 49 u. mich. J. l. RefoRm

1 (2015). See also Christopher Yoo, The Post-Chicago Antitrust Revolution: A Retrospective, 168 u PeNN l. Rev. 2145

(2020).

4. See Herbert Hovenkamp, Whatever Did Happen to the Antitrust Movement? 94 NotRe dame l. Rev. 583 (2019). See also

Herbert Hovenkamp, Is Antitrust’s Consumer Welfare Principle Imperiled? 45 J. coRP. l. 101 (2019). See also Herbert

Hovenkamp, Addressing the Divisions in Antitrust Policy, 4 coNcuRReNces 14 (2021). See also Herbert Hovenkamp,

Selling Antitrust, 73 hastiNgs l. J. 1621 (2022). See also Luke Mason, the Big tech deBate, Neo-BRaNdeisiaNs, aNd

comPetitioN (2020), https://austrianstudentconference.com/wp-content/uploads/2021/02/ASSC-2021-Luke-Mason.pdf.

See also Konstantin Medvedovsky, hiPsteR aNtitRust—a BRief fliNg oR somethiNg moRe? (2018), http://www.compe-

titionpolicyinternational.com/wp-content/uploads/2018/04/CPI-Medvedovsky.pdf. See also Carl Shapiro, Antitrust: What

Went Wrong and How to Fix It, 35 aNtitRust 33 (2021).

5. A concise summary of those principles can be found in the Utah Statement (see Tim Wu, the utah statemeNt: ReviviNg

aNtimoNoPoly tRaditioNs foR the eRa of Big tech (2019), https://onezero.medium.com/the-utah-statement-reviving-

antimonopoly-traditions-for-the-era-of-big-tech-e6be198012d7. See also Simonetta Vezzoso, the fiRst New BRaNdeisiaN

decisioN iN euRoPe? (2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4048158).

6. Subcommittee on Antitrust, Commercial and Administrative Law of the Committee on the Judiciary, iNvestigatioN of

comPetitioN iN digital maRkets, at 7 (2020), https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=3429.

7. See amy kloBuchaR, aNtitRust (2021). See also Elizabeth Warren, how we caN BReak uP Big tech (2019), https://

elizabethwarren.com/plans/break-up-big-tech/?sc=web_home_rotator.

welfare”2 led to the emergence of the libertarian Chicago School of Antitrust and, later, the post-Chi-

cago School. The “populist school” of Brandeis (and others), on the other hand, led to the emergence

of the Harvard School, the New Harvard School, and, nowadays, the New Brandeis movement.3

Neo-Brandeisianism—by critics referred to as “movement antitrust,” the “antitrust left,” “(antitrust)

populism,” or “hipster antitrust”4—acknowledges and incorporates the interests of multiple stakeholder

groups—not just “consumers” as the Chicago School does—as well as political and social justice con-

siderations. The most prominent representatives of this movement are Lina Khan, the current chair of

the Federal Trade Commission, and Tim Wu, Special Advisor to President Biden. Both have published

several books and papers criticizing Bork’s (and the Chicago School’s) consumer welfare standard and

outlining the fundamental principles of the New Brandeis movement.5

Noteworthy is also that a recent House Committee report not only compared big tech to the oil bar-

ons and railroad tycoons of the late nineteenth and early twentieth century—an era commonly referred

to as the “first gilded age.” They also cited Brandeis’ famous passage—“We must make our choice. We

may have democracy, or we may have wealth concentrated in the hands of a few, but we cannot have

both.”6 Lastly, Brandeis’ social philosophy and the demands of the New Brandeis movement have also

been endorsed by several (former or prospective) Democratic presidential candidates.7

While it is laudable that many researchers acknowledge Brandeis’ work and recognize its business-

ethical importance, it is also a missed opportunity to refer to him en passant and not investigate his

philosophy in more depth and clarity. The following sections thus attempt to fill this gap in the aca-

demic literature by critically evaluating—and comparing—Brandeis’ social philosophy with the one of

the New Brandeis movement.

The research questions and goals of this article are twofold: First, it analyzes the main parallels and

differences between Brandeis and neo-Brandeisianism. Second, it addresses the question of which

references to his work are valid and legitimate and which ones are not.

The article shows that Brandeis’ work encompasses much more than just competition policy; reducing

him to antitrust issues (only) does not do him justice as it ignores significant parts of his social philosophy,

such as his advocacy for civil liberties, free speech, and privacy. In addition, the article shows that

Brandeis was skeptical of big business and big government. In contrast, the new Brandeis movement

focuses solely on antibigness in the economy while ignoring Brandeis’ demand in the political sector.