Michelle Meagher writes that to preserve its contributions to the marketplace of ideas about antitrust, the Neo-Brandeisian movement must build out an infrastructure that archives its ideas and makes them accessible to the public. It must also continue to make its case for its core contributions to this marketplace, including on bigness and per se rules.
Following the second Trump victory, the pages of ProMarket brimmed with the palpable relief of antitrust experts declaring the end of the Anti-Monopoly or Neo-Brandeisian movement. Neo-Brandeisianism’s critics had, for the prior four years, lamented the leadership of Federal Trade Commission Chair Lina Khan and Assistant Attorney General Jonathan Kanter for what they claimed to be the abandonment of economics and case law to pursue broader goals such as income equality or political freedom. Now that Khan and Kanter have stepped down, the future of the Neo-Brandeisian movement lies in clarifying antitrust’s contribution to the protection of these goals. For those seeking to maintain the shift in antitrust discourse that the Neo-Brandeisians achieved, one area they must consider is how to preserve the market of (anti-monopoly) ideas. This article reviews the missing infrastructure of the New Brandeisian movement and looks at how to build upon its expanded perspective.
How to regulate the corporation?
One of the fundamental questions the Neo-Brandeisian movement unearthed is: what is the proper relationship between regulation and the private sector, and particularly the corporation? The corporation itself is an idea in the marketplace for ideas, a figment of our legal imagination. And it is an idea that has waxed and waned in scope over the centuries. A key feature of the corporation is its ability to accumulate power and property, and to perpetuate that power across time. Anti-monopoly seeks to challenge that power at various levels.
We can identify both intrinsic and extrinsic limits on the nature and scope of the corporation.
The intrinsic limits to corporate power address the question: how big of an idea should the corporation be? Should it, as is currently the case, have no practical limit on its size or length of life? Or should it, as has been the case in the past, be limited in both size and duration, scope of permitted activities, interactions with other corporations, and so on? Early charters discouraged vertical integration and expansion by restricting the business lines into which a corporation could enter. The first general incorporation statutes of several states included limits on corporate longevity (20 years for Pennsylvania, 40 years for Ohio). Such laws limited how much capital a firm could raise and how much debt it could carry. These intrinsic limits tend to have been set by corporate law and to have operated more or less automatically, although the link between corporate law and antitrust law is historically blurry.
The extrinsic limits on corporate power address the question: for a given scope of the idea of the corporation, how tightly should the activities of corporations be monitored and restricted? Given the ability to accumulate property infinitely and indefinitely, what should the corporation be allowed to do with that power? Antitrust operates in this domain, but again corporate law, and indeed other areas of law—such as tax, labor law, environmental law, human rights law—also act to raise or lower extrinsic limits to the corporation’s actions. Often, but not always, extrinsic limits can be resource intensive to enforce.
Although the distinction between intrinsic and extrinsic is not absolute, it is nevertheless important because recent regulatory efforts have tended to focus on extrinsic limits, and, if anything, on reducing those limits (“cutting bureaucracy, increasing competitiveness”). For the biggest and most powerful companies, extrinsic limits have arguably become largely meaningless and ineffectual. Breaking the law, if it is enforced, is a cost of doing business, and these big businesses can more than afford the cost. The combined fines against Big Tech in 2024 could reportedly be paid off in under three weeks. And no big company has yet been dealt a critical blow by any monopolization or abuse of dominance case on either side of the Atlantic; many cases rumble on through the courts (that there are cases that have gone to court can be counted as progress for anti-monopolists).
This leaves intrinsic limits as an underexplored path for meaningful restrictions on the corporation—although they too have been substantially eliminated over time through jurisdictional competition (what remains are minimalist rules on internal governance, treatment of shareholders, securities fraud and so on that even states like Delaware have not completely removed). Just as in antitrust where the specter of the blameless monopoly, acquired by “superior product, business acumen, or historic accident,” restrained generations of enforcers from bringing monopolization cases, so do the ideas of maximizing shareholder value and the natural law rights of property-holders haunt corporate law, giving licence to practically unfettered behavior by the potentially infinite corporation.
Building a marketplace of (Anti-monopoly) ideas
The health of the marketplace of ideas, particularly the marketplace for ideas about the corporation and the regulation of its latent and manifest power, plays a critical role in determining the strength of these intrinsic and extrinsic limits, dictating which regulatory ideas are even permitted within the prevailing discourse and which ideas are to be banished to the wastebasket of history.
Indeed, one of the most striking aspects of the reinvigoration of antitrust in the last few years is how many ideas were fished out of that wastebasket, dusted off, and put back into use. The Neo-Brandeisians claim their name by reaching back to Supreme Court Justice Louis Brandeis—who had been largely forgotten by contemporary commentators—for the intellectual basis of their agenda. The excavation of historic ideas and of regulatory experiments that have been explored across the world—including restrictions on incorporation, federal chartering, common carrier regimes and other intrinsic or intrinsic-like approaches—is only just getting started.
Whether you think that the Neo-Brandeisians represented a rightful correction—as I do—or a regrettable nightmare, as do some antitrust traditionalists, we should want future generations to have at their disposal the full menu of regulatory options, not least because they will be dealing with the extended legacy of neoliberalism, with its attendant extreme market concentration, supply chain insecurity, macroeconomic instability, global inequality, democratic dystopia and climate crisis. We must surely, while circumstances still allow, do what we can to prepare the ground for the future, even if we fall short of implementation. The Neo-Brandeisian movement must build an infrastructure to preserve its contributions and thus the integrity of the marketplace of ideas.
Anti-monopoly archives: As far as I am aware, we have no Neo-Brandeisian or anti-monopoly archives, no repository of knowledge for future anti-monopolists to consult. Many useful texts are out-of-print or behind paywalls. When the fervor of the current political moment dies away we may find that we have not even maintained the knowledge gained over the last few years—on the potential for both intrinsic and extrinsic limits—let alone meaningfully advanced it. This is a duty owed to incoming cohorts of students and researchers. Academic citations and footnotes lay an enticing trail of breadcrumbs for the intrepid (and time-rich) researcher, but to future-proof our own regulatory efforts, come what may, we should ensure that our stores of knowledge are comprehensive, accessible and secure. Websites such as ProMarket have a role to play here. The Anti-Monopoly and Regulated Industries Open Course is another example of an attempt to expand anti-monopoly knowledge. There is room for much more.
Building out the Neo-Brandeisian contributions to the antitrust marketplace of ideas
The Neo-Brandeisians have contributed, and resurfaced, a plethora of ideas that now drive antitrust discourse. Much of the antitrust community has not bought into these ideas, in part because of differences in ideology, but also because the Neo-Brandeisians and the accompanying literature must still flesh out and more fully articulate the theoretical, analytical, normative, and practical aspects of their agenda. The movement must continue to pursue these ideas to make their case to the broader community.
Bigness: Despite being associated with the ideas of Brandeis, and the publication of Tim Wu’s book The Curse of Bigness, bigness itself did not feature prominently in the rhetoric of the Biden Administration or of Khan and Kanter while in office, although many of the most significant enforcement actions have been against big companies. Massachusetts Senator Elizabeth Warren’s Accountable Capitalism Act, which would have created (intrinsic) limits on companies over a certain size, did not come to pass. By contrast, the EU has enacted the Digital Markets Act (DMA), which designates companies by size, automatically triggering a range of responsibilities for digital gatekeepers. One of the major missed opportunities, though, was relegating structural remedies to a last resort within the DMA—leaving size itself uncontested. Brandeis’ concern for the inherent risk to democracy and the rule of law of big corporations remains unaddressed.
Bright Line Rules: This is another idea that has not had a full airing beyond the works of a few scholars. Bright line or per se rules are extrinsic restrictions with an intrinsic flavor because they operate (almost) automatically. Examples include the proposed non-compete ban or Zephyr Teachout’s suggestion for companies over a certain size to lose limited liability. Robert H. Lande and Sandeep Vaheesan have proposed that we should “Ban All Big Mergers. Period.” Per se rules in antitrust apply in certain circumstances already—as in the case of hardcore price-fixing. The evidentiary process of these cases means that the per se rules hardly apply automatically (what proportion of price-fixing cases are even uncovered?). In keeping with the anti-monopoly focus on power, cartel cases should only be brought against dominant firms.
Climate: The conversation on climate has progressed with vigor in the EU, although it has stalled somewhat on the issue of climate-friendly competitor collaborations—an enabling approach that would not place limits on abuses of power by polluting companies. Meanwhile, in the U.S., antitrust has been weaponized against climate-minded investors. Nowhere has the climate conversation meaningfully connected the two cardinal market failures: market power and negative externalities. In no jurisdiction has the structure of markets been substantially linked to the climate crisis. Neither the possibility of intrinsic nor extrinsic limits on the ability of powerful companies to emit carbon, imperil biodiversity or otherwise externalize the costs of production have been much explored in the literature.
Corporate law: Without engaging substantively with corporate law, antitrust will always rely mainly on extrinsic limits, leaving a range of potential intrinsic levers under-utilized, and vice versa for corporate law. There have been many calls for antitrust to become more interdisciplinary, bringing in experts from data science and behavioral economics. We should start closer to home. The concepts of the corporation and of power must be reunited.
The future of the antitrust marketplace of ideas
I have not addressed here the need for a free and independent press. It is self-evident that any society structured around the rule of law and democratic principles cannot tolerate ownership of newspapers or control of social media platforms by billionaires and tech giants in cahoots with the executive branch. This is the lesson learned from autocratic regimes around the world.
I have also not addressed deficiencies in the academic model which have been discussed elsewhere: corporate funding of academic positions; conflicts of interest (disclosed and undisclosed) including involvement of some academics in the reported practice of spamming the regulator (which raises the costs of applying extrinsic limits); difficulties in publishing non-welfarist work in peer-reviewed academic journals; and the evisceration of new voices—such as Isabella Weber—for stepping outside the bounds of accepted knowledge.
Finally, we must consider the role of the courts. Judges have huge influence on the marketplace for ideas, we could say that they are the final arbiters of what can and cannot remain in the marketplace. One issue is the training of judges. This has been a notoriously effective prong of the conservative legal agenda. Broader antitrust learning, beyond neoliberal precepts, should be made available to judges, and training should be totally divorced from corporate sponsorship.
If the reinvigorated debate about the foundations of antitrust does not die or retrench over the next four years, it still may founder at some point in the future. The Neo-Brandeisians have made incredible progress in shifting the terms of the debate, but there is much further to go. If we want to ensure that corporate power does not overwhelm our institutions, then we would do well to build upon the existing infrastructure for generating and disseminating ideas about the regulation of the corporation, and fill the remaining gaps.
With extreme asymmetries of information and resources, anti-monopoly ideas can be railroaded by pro-business ideas. Many traditionalist voices are pro-business on principle and are not paid to think so. But there are many that are paid to think so, and it is against this onslaught that we must ensure the marketplace of ideas can nevertheless survive, even thrive. We must resurrect and create anew ideas for both intrinsic and extrinsic regulation of corporate power.
The Neo-Brandeisians have widened our perspectives, they have opened the door to new (and old) discussions. Not only should we not shut the door too hastily, we should go further. We should heave that door open.
Authors’ Disclosures: The authors reports no conflicts of interest. You can read our disclosure policy here.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
