Neo-Brandeisians and Marxists Unite!: Reevaluating the Nature of Power and Markets in Competition Policy

Abstract

This article engages ongoing policy debates concerning the relationship between concentrated economic power, democracy, and the rule of law, focusing on competition policy – known in the United States as Anti-Trust law. I analyze how Neo-Brandeisian jurists and advocates (who are named after the late, Progressive-Era U.S. Supreme Court Justice, Louis Brandeis), have raised critical concerns in their critiques of how Chicago School jurists have conceived of and deployed the concept of “consumer welfare.” As I argue, the crux of the Neo-Brandeisian intervention concerns the need to reevaluate the appropriate relationship between governments and markets. Yet, as I also explore, Neo-Brandeisians err in their depiction of market dynamics and the place of labor within them. To address these problems, I incorporate insights from Marxist legal studies and political economy. I present my argument in the historical evolution of competition policy, highlighting how one of its principal elements has been a concern with challenging concentrated economic power. My discussion highlights how a revised standard for competition policy, especially with respect to promoting democracy, is possible from synthesizing insights from Neo-Brandeisians with Marxists.