Two Challenges for Neo-Brandeisian Antitrust

• Published date: 01 September 2023
• DOI: http://doi.org/10.1177/0003603X231180251
• Author: Justin Lindeboom
• Date: 01 September 2023
• Subject Matter: Articles

https://doi.org/10.1177/0003603X231180251

The Antitrust Bulletin

2023, Vol. 68(3) 392 –410

© The Author(s) 2023

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0003603X231180251

journals.sagepub.com/home/abx

Article

Two Challenges for Neo-Brandeisian

Antitrust

Justin Lindeboom*

Abstract

Several scholars and policy-makers have proposed a “Neo-Brandeisian” reform of U.S.

antitrust law, aimed at reviving “republican” antitrust. Republicanism conceives of domination

as inherently detrimental to freedom. Republican antitrust considers antitrust law as an

“institution of antipower,” aimed at dispersing economic power. This paper sets out two key

challenges to the Neo-Brandeisian reform agenda and argues for legal formalism to address them.

First, republicanism would alter the normative justification, but not necessarily the content of

antitrust law. Neoclassical antitrust law does not broadly reflect a Schumpeterian endorsement

of dominance. Rather, its epistemological priors and methodology entail skepticism about the

mere presence of economic power. Thus, mainstream antitrust law and policy remain unfazed

by the Neo-Brandeisian claim that antitrust should target domination instead of consumer

welfare. Second, Neo-Brandeisian reform proposals are inherently polycentric. How Neo-

Brandeisians aim to balance distinct values including the competitive process, the harm of

concentrated power, and the protection of democracy and egalitarianism has remained unclear.

This paper argues that both challenges demand for a formalistic approach to Neo-Brandeisian

antitrust. Compared to a case-by-case approach, adopting general rules through legislative

or administrative decision-making may legitimately overturn current precedent, incorporate

alternate methods of measuring power and competitive harm, and pursue a variety of republican

goals. Neo-Brandeisian formalism would essentially reinvigorate the Harvard school’s insight

that multiple purposes—including both efficiency and republican liberty—can be attained by

formalistic rules.

Keywords

Neo-Brandeisian antitrust, republicanism, domination, formalism, neoclassical antitrust

*Associate Professor of Law, University of Groningen, Groningen, The Netherlands

Corresponding Author:

Justin Lindeboom, Associate Professor of Law, University of Groningen, Groningen 9712 EK, The Netherlands.

Email: j.lindeboom@rug.nl

1180251ABXXXX10.1177/0003603X231180251The Antitrust BulletinLindeboom

research-article2023

Lindeboom 393

I. Introduction

Several scholars and policy-makers, many of whom self-identify as “Neo-Brandeisians,”1 have pro-

posed a “republican” reform of U.S. antitrust law.2 According to Neo-Brandeisians, notably including

FTC Chair Lina Khan and law professor and former presidential advisor Tim Wu, republican principles

can guide U.S. antitrust law from its current focus on efficiency and consumer welfare toward a

renewed focus on combating economic and political domination, as it had had before the rise of the

Chicago school of antitrust.3

Republicanism in this sense refers to a theory of liberty that conceives of liberty as the absence of

domination.4 Republicanism is built on the premise that domination as such is inherently detrimental to

freedom, even if there is no actual or likely interference with the negative or positive freedom of others.5

Just as slaves are unfree even if their master is benevolent—simply because the master has the capacity

to change his mind and interfere with the slaves’ freedom at will6—the fact that economically dominant

undertakings have the mere capacity to interfere with the economic freedom of smaller competitors

implies a lack of freedom.7 As economic power translates into political power,8 moreover, curtailing

economic power—among others through antitrust law—has as one of its distinct functions the protec-

tion of republicanism.9 Thus, a republican theory of antitrust conceives of antitrust law as an “institution

of antipower,”10 aimed at protecting a republican system of government and society by dispersing eco-

nomic power.11

1. See Tim Wu, The Curse of Bigness: A nTiTrusT in The neW gilded Age (2018); Lina M. Khan, The New Brandeis

Movement: America’s Antimonopoly Debate, 9 J. eur. Comp. l. & prACT. 131 (2018). The term “Neo-Brandeisians”

conveys their reliance on Justice Brandeis’s work on the perils of concentrated economic power. See generally louis

BrAndeis, The Curse of Bigness (1934).

2. See e.g. Wu, supra note 1; Lina M. Khan; The End of Antitrust History Revisited, 133 hArv. l. rev. 1655 (2020); Amy

KloBuChAr, AnTiTrusT: TAKing on monopoly poWer from The gilded Age To The digiTAl Age (2021).

3. See e.g. Wu, supra note 1, at 33–83; Lina M. Khan & Sandeep Vaheesan, Market Power and Inequality: The Antitrust

Counterrevolution and Its Discontents, 11 hArv. l. & pol’y rev. 235, 268–93 (2017). Khan describes the rise of the

Chicago school as encompassing both a descriptive shift toward “a new set of assumptions about how firms behave under

various conditions and what effects this behavior is likely to have,” and a normative shift “that replaced a republican

theory of antitrust with a neoliberal one” (Khan, supra note 2, at 1665).

4. See generally Frank Lovett, Republicanism, sTAnford enCyClopediA of philosophy (June 4, 2018), https://plato.stanford.

edu/entries/republicanism/.

5. The republican understanding of liberty “consists in the secure enjoyment of non-domination”, where “domination” is

defined as “arbitrary or uncontrolled power.” Id. Therefore, “a person or group enjoys freedom to the extent that no other

person or group has ‘the capacity to interfere in their affairs on an arbitrary basis.’” Id., citing Philip Pettit, Republican

Freedom and Contestatory Democratization, in demoCrACy’s vAlue 163, 165 (Ian Shapiro & Casiano Hacker-Cordon

eds., 1999).

6. Elias Deutscher, The Competition—Democracy Nexus Unpacked—Competition Law, Republican Liberty, and Democracy,

41 yB. eur. l. 1, 13 (2022), at https://doi.org/10.1093/yel/yeac003, referring to philip peTTiT, repuBliCAnism: A Theory

of freedom And governmenT 21–28, 31–32 (1997).

7. See e.g. Lina M. Khan, The Separation of Platforms and Commerce, 119 Colum. l. rev. 973, 1064 (2019), refer-

ring to Evan J. Criddle, Liberty in Loyalty: A Republican Theory of Fiduciary Law, 95 Tex. l. rev. 993, 1003

(2017).

8. See e.g. Luigi Zingales, Towards a Political Theory of the Firm, 31 J. eCon. persp. 113 (2017); Wu, supra note 1, at

19–23.

9. On how republican theory underlies the link between curtailing economic power and protecting a system of republican

government, see generally Deutscher, supra note 6, 6–20; giuliAno AmATo, AnTiTrusT And The Bounds of poWer: The

dilemmA of liBerAl demoCrACy in The hisTory of The mArKeT (1997).

10. Deutscher, supra note 6, at 20, referring to Philip Pettit, Freedom as Antipower, 106 eThiCs 576, 577, 588 (1996).

11. See Deutscher, supra note 6, at 12–20; Paul H. Brietzke, The Constitutionalization of Antitrust: Jefferson, Madison,

Hamilton, and Thomas C. Arthur, 22 vAl. u. l. rev. 275, 276–301 (1988).