Why the 'New Brandeis Movement' Gets Antitrust Wrong
Law 360, 2018
6 Pages Posted: 21 Apr 2018 Last revised: 2 May 2018
Date Written: April 24, 2018
In a March Editorial piece in the Journal of European Competition Law and Practice, Lina Khan put forward some of the core tenets of the NBM, which in her view continues a political and economic tradition rooted in American republicanism and Justice Brandeis’s legal philosophy. For the NBM, antimonopoly includes an antitrust regime that seeks to “ensur[e] that markets [are] structured to promote openness and competition.” The Chicago School’s abandonment of this tradition, the story goes, has contributed to rising market concentration and economic inequality. In presenting the movement’s core tenets, Khan exposes a flawed understanding of the relation between antimonopoly and American democracy, confirms concerns that the NBM heralds a return to “big is bad,” and misconstrues the Chicago School’s intellectual foundations.
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