Louis Brandeis: A Man for This Season

Abstract

In the early years of the 20th Century, Louis Brandeis was America’s most influential advocate for antitrust enforcement but his contributions to antitrust have been much debated ever since. Given the current, prominent discussion of the future of antitrust in these economic times, this essay proposes a five-part framework to describe Brandeis’s approach, which relies heavily on institutional roles and responsibilities: (1) Legislators creating antitrust laws should consider broad economic and social issues, including democratic values, (2) Antitrust laws should translate those broad motivations into administrable legal standards within the scope of professional obligations familiar to antitrust enforcers and the courts, (3) Legal professionals vindicate the legislature’s larger social and economic goals by relying on learnings from economics and the social sciences and applying the chosen legal standard to the facts in a determined and detailed manner, while avoiding day-to-day political considerations, (4) Sectoral regulation should be used where justified by specific industry circumstances, such as the existence of local utility monopolies or in circumstances in which normal competitive forces cannot get the job done, and (5) Competition policy, both in antitrust and sectoral regulation, is to be informed by a spirit of experimentation.