![Brandeisl](https://upload.wikimedia.org/wikipedia/commons/a/a6/Brandeisl.jpg)
The New Brandeis or neo-Brandeis movement is an
antitrust
Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
academic and political movement in the United States which argues that excessively centralized private power is dangerous for economical, political and social reasons. Also called hipster antitrust by its detractors, the movement advocates that
United States antitrust law
In the United States, antitrust law is a collection of mostly federal laws that regulate the conduct and organization of businesses to promote competition and prevent unjustified monopolies. The three main U.S. antitrust statutes are the Sherman ...
seek to improve business market structures that negatively affect
market competition
In economics, competition is a scenario where different Economic agent, economic firmsThis article follows the general economic convention of referring to all actors as firms; examples in include individuals and brands or divisions within the sa ...
,
income inequality
There are wide varieties of economic inequality, most notably income inequality measured using the distribution of income (the amount of money people are paid) and wealth inequality measured using the distribution of wealth (the amount of we ...
,
consumer rights
Consumer protection is the practice of safeguarding buyers of goods and services, and the public, against unfair practices in the marketplace. Consumer protection measures are often established by law. Such laws are intended to prevent business ...
,
unemployment
Unemployment, according to the OECD (Organisation for Economic Co-operation and Development), is people above a specified age (usually 15) not being in paid employment or self-employment but currently available for Work (human activity), w ...
, and
wage growth
Wage growth (or real wage growth) is a rise of wage adjusted for inflations, often expressed in percentage. In macroeconomics, wage growth is one of the main indications to measure economic growth for a long-term since it reflects the consumer' ...
.
The movement draws inspiration from the anti-monopolist work of
Louis Brandeis
Louis Dembitz Brandeis (; November 13, 1856 – October 5, 1941) was an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939.
Starting in 1890, he helped develop the "right to privacy" concept ...
, an early 20th century
United States Supreme Court Justice
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...
who called high economic concentration “the Curse of Bigness” and believed monopolies were inherently harmful to the welfare of workers and business innovation.
The New Brandeis movement opposes the school of thought in modern antitrust law that antitrust should center on short-term price effects (as generally advocated by the
Chicago school of economics
The Chicago school of economics is a neoclassical school of economic thought associated with the work of the faculty at the University of Chicago, some of whom have constructed and popularized its principles. Milton Friedman and George Stigle ...
). Instead, the New Brandeis movement advocates a broader antimonopoly approach that is concerned with the structure of the economy and market conditions necessary to promote vigorous competition.
Description
The New Brandeis movement believes that centralized private power poses a danger to the economic and social conditions of democracy.
Neo-Brandeisians believe, for example, that monopoly power is ripe with potential for abuse. They have also argued that dominant tech platforms create high barriers for potential competitors and reduce bargaining power of individual merchants, content providers, and app developers.
The movement advocates for market structures that prevent anti-competitive practices and would increase scrutiny of mergers, including
vertical mergers. Proponents believe antitrust laws should focus less on short-term price effects of mergers and more on improving the market conditions necessary to promote real competition.
Support and opposition
Individuals who have been described as being associated with the movement include
Lina Khan
Lina M. Khan (born March 3, 1989) is a British-born American legal scholar serving as chairwoman of the Federal Trade Commission since 2021. While a student at Yale Law School, she became known for her work in antitrust and competition law in t ...
,
Tim Wu
Timothy "Tim" Shiou-Ming Wu (born 1972) is a Taiwanese American legal scholar and official in the Biden Administration tasked with Technology and Competition policy. He was also a professor of law at Columbia University and a contributing opinio ...
,
Jonathan Kanter
Jonathan Seth Kanter (born July 30, 1973) is an American antitrust attorney who has served as assistant attorney general for the Department of Justice (DOJ) Antitrust Division since November 16, 2021. Prior to this, Kanter worked as an antitrust ...
, and
Barry Lynn.
Senators
Cory Booker
Cory Anthony Booker (born April 27, 1969) is an American politician and attorney who has served as the junior United States senator from New Jersey since 2013. A member of the Democratic Party, Booker is the first African-American U.S. sena ...
and
Elizabeth Warren
Elizabeth Ann Warren ( née Herring; born June 22, 1949) is an American politician and former law professor who is the senior United States senator from Massachusetts, serving since 2013. A member of the Democratic Party and regarded as a ...
have been described as allies of the movement, and have called on the
United States Department of Justice Antitrust Division
The United States Department of Justice Antitrust Division is a division of the U.S. Department of Justice that enforces U.S. antitrust law. It has exclusive jurisdiction over U.S. federal criminal antitrust prosecutions. It also has jurisdi ...
and
Federal Trade Commission
The Federal Trade Commission (FTC) is an independent agency of the United States government whose principal mission is the enforcement of civil (non-criminal) antitrust law and the promotion of consumer protection. The FTC shares jurisdiction ov ...
to focus their enforcement efforts more on helping workers. The movement has since been the subject of both academic conferences, research papers, and academic journals.
Critics of the New Brandeis movement believe that promoting competition for its own sake causes inefficient producers to stay in business, preferring a litigation approach based on empirical evidence.
The term "hipster antitrust" originally began as a
Twitter
Twitter is an online social media and social networking service owned and operated by American company Twitter, Inc., on which users post and interact with 280-character-long messages known as "tweets". Registered users can post, like, and ...
hashtag
A hashtag is a metadata tag that is prefaced by the hash (also known as pound or octothorpe) sign, ''#''. On social media, hashtags are used on microblogging and photo-sharing services such as Twitter or Instagram as a form of user-generated ...
, and rose to prominence when Senator
Orrin Hatch
Orrin Grant Hatch (March 22, 1934 – April 23, 2022) was an American attorney and politician who served as a United States senator from Utah from 1977 to 2019. Hatch's 42-year Senate tenure made him the longest-serving Republican U.S. senator ...
used the term during multiple speeches on the
United States Senate
The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States.
The composition and pow ...
floor.
Matt Levine of ''
Bloomberg News
Bloomberg News (originally Bloomberg Business News) is an international news agency headquartered in New York City and a division of Bloomberg L.P. Content produced by Bloomberg News is disseminated through Bloomberg Terminals, Bloomberg Televi ...
'' has written that the term hipster antitrust "appeals to nostalgia for old-fashioned antitrust enforcement". Some proponents of the movement believe the term is pejorative. The term was coined by
Konstantin Medvedovsky, an
attorney at
Dechert
Dechert LLP () is an American multinational law firm of more than 900 lawyers with practices in corporate and securities, complex litigation, finance and real estate, financial services, asset management, and private equity. In 2021, the firm ra ...
, and popularized by former
Federal Trade Commission
The Federal Trade Commission (FTC) is an independent agency of the United States government whose principal mission is the enforcement of civil (non-criminal) antitrust law and the promotion of consumer protection. The FTC shares jurisdiction ov ...
er
Joshua D. Wright.
History
Background
As documented by historian Ellis Hawley, the original "NeoBrandeisian" movement arose in the late 1930s. In reaction to the failures of the first New Deal a group headed by Harvard Professor
Felix Frankfurter
Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted advocate of judicia ...
advanced ideas of economic decentralization and renewed antitrust enforcement. These ideas came to be influential during the late 1930s and onward, during the so-called "Second" New Deal. Prominent individuals associated with the movement included
Robert H. Jackson
Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was an American lawyer, jurist, and politician who served as an Associate Justice of the Supreme Court of the United States, Associate Justice of the Supreme Court of the Unit ...
,
Benjamin V. Cohen,
William O. Douglas
William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States, who was known for his strong progressive and civil libertarian views, and is often c ...
, and
Thurman Arnold
Thurman Wesley Arnold (June 2, 1891 – November 7, 1969) was an American lawyer best known for his trust-busting campaign as Assistant Attorney General in charge of the Antitrust Division in President Franklin D. Roosevelt's Department of Justice ...
.
From World War II until the 1970s, the Brandeisian view that high market concentration leads to anticompetitive behavior was sometimes called the Harvard School of thought because the view was primarily associated with
Harvard University
Harvard University is a private Ivy League research university in Cambridge, Massachusetts. Founded in 1636 as Harvard College and named for its first benefactor, the Puritan clergyman John Harvard, it is the oldest institution of higher le ...
, including works by economists Edward Mason,
Edward Chamberlain, and
Joe Bain. In the early late 1970s, this view fell out of favor as the views of the
Chicago School of thought rose, advocating a close attention to the short term effects of mergers on consumer prices.
Development
Emerging in the late 2010s, the movement takes inspiration from former
US Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...
justice
Louis Brandeis
Louis Dembitz Brandeis (; November 13, 1856 – October 5, 1941) was an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939.
Starting in 1890, he helped develop the "right to privacy" concept ...
, who was a prominent anti-monopolist. Brandeis believed that antitrust action should prevent any one company from maintaining too much power over the economy because monopolies were harmful to innovation, business vitality, and the welfare of workers.
He described "The Curse of Bigness," believing that large profitable firms use their money to influence politics and create further consolidation and dominance, once stating, “We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.”
In the 2010s, the New Brandeis theory was popularized by legal scholars
Lina Khan
Lina M. Khan (born March 3, 1989) is a British-born American legal scholar serving as chairwoman of the Federal Trade Commission since 2021. While a student at Yale Law School, she became known for her work in antitrust and competition law in t ...
and
Tim Wu
Timothy "Tim" Shiou-Ming Wu (born 1972) is a Taiwanese American legal scholar and official in the Biden Administration tasked with Technology and Competition policy. He was also a professor of law at Columbia University and a contributing opinio ...
, both of
Columbia University
Columbia University (also known as Columbia, and officially as Columbia University in the City of New York) is a private research university in New York City. Established in 1754 as King's College on the grounds of Trinity Church in Manhatt ...
. Khan published an article about the negative effects of monopoly power by the company
Amazon
Amazon most often refers to:
* Amazons, a tribe of female warriors in Greek mythology
* Amazon rainforest, a rainforest covering most of the Amazon basin
* Amazon River, in South America
* Amazon (company), an American multinational technology c ...
.
The theory would heighten scrutiny of large company mergers.
Wu published ''The Curse of Bigness: Antitrust in the New Golden Age'' in 2018, which criticized antitrust's drift from its historic origins, introduced Brandeis' life and ideals, and advocated a return a more decentralized economy. In 2019 Khan, Wu and others released a "Utah Statement" written at anti-monopoly conference meant as a codification of the movements' main principles. Another key neo-Brandeisian work is ''Goliath: The 100-Year War Between Monopoly Power and Democracy'', by activist Matt Stoller, also published in 2019.
Biden administration
The movement was perceived to grow in influence during the
Biden administration
Joe Biden's tenure as the 46th president of the United States began with his inauguration on January 20, 2021. Biden, a Democrat from Delaware who previously served as vice president under Barack Obama, took office following his victory ...
, as compared to the prior
Trump
Trump most commonly refers to:
* Donald Trump (born 1946), 45th president of the United States (2017–2021)
* Trump (card games), any playing card given an ad-hoc high rank
Trump may also refer to:
Businesses and organizations
* Donald J. T ...
and
Obama presidencies.
In 2020, the
American Economic Liberties Project
The American Economic Liberties Project (AELP) is an American non-profit organization that advocates corporate accountability legislation and aggressive enforcement of antitrust regulations.
History and leadership
The AELP was founded in Febr ...
(AELP) was founded by several neo-Brandeisians to support regulatory efforts and research, led by
Sarah Miller.
The ''
Wall Street Journal
''The Wall Street Journal'' is an American business-focused, international daily newspaper based in New York City, with international editions also available in Chinese and Japanese. The ''Journal'', along with its Asian editions, is published ...
'' described the movement as "a new generation of
trustbusters" in 2021, arguing that it represented a shift away from a singular focus on perceived
consumer welfare
Welfare economics is a branch of economics that uses microeconomic techniques to evaluate well-being (welfare) at the aggregate (economy-wide) level.
Attempting to apply the principles of welfare economics gives rise to the field of public econ ...
that began with the
Reagan administration
Ronald Reagan's tenure as the 40th president of the United States began with his first inauguration on January 20, 1981, and ended on January 20, 1989. Reagan, a Republican from California, took office following a landslide victory over D ...
and the ideas of
Robert Bork
Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American jurist who served as the solicitor general of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the U.S. Court ...
.
In 2021, the White House appointed
Tim Wu
Timothy "Tim" Shiou-Ming Wu (born 1972) is a Taiwanese American legal scholar and official in the Biden Administration tasked with Technology and Competition policy. He was also a professor of law at Columbia University and a contributing opinio ...
, a prominent member of the movement at Columbia, to serve as special assistant to the President for Competition and Technology policy. The President in July 2021 signed a new Executive Order of Competition, which called for a reinvigoration of competition policy across government. Biden later nominated Jonathan Kanter, a neo-Brandeisian, to serve as assistant attorney general in the Department of Justice Antitrust Division. Kanter was confirmed by the
United States Senate
The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States.
The composition and pow ...
by a vote of 68–29 and took office in November 2021.
Biden also nominated Lina Khan to be Chair of the
Federal Trade Commission
The Federal Trade Commission (FTC) is an independent agency of the United States government whose principal mission is the enforcement of civil (non-criminal) antitrust law and the promotion of consumer protection. The FTC shares jurisdiction ov ...
.
On June 15, 2021, her nomination was confirmed by the
Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
by a vote of 69 to 28. Khan was confirmed with bipartisan support.
References
{{reflist
2010s in American politics
2020s in American politics
Political movements in the United States
Progressivism in the United States
United States antitrust law
Louis Brandeis