After several decades of obscurity, antitrust reemerged as a fashionable force in the second and third decades of the 21st century. This trend coincided with growing societal distrust of expertise. Barak Orbach explores assertions that corruption and greed drive support for lax antitrust enforcement policies, and that trustbusting zeal is a marker of intellectual integrity. He argues that intellectual integrity and sound public policy require the moderate, technocratic approaches that society heavily discounts.
Supreme Court Justice Oliver Wendell Holmes celebrated the virtues of the “marketplace of ideas” while dismissing antitrust law as “a humbug based on economic ignorance and incompetence.” Ironically, a century later, distortions in the marketplace of ideas have turned antitrust discourse into its own form of “humbug.” Past and present representatives of the humbug have championed two conflicting antitrust visions. One, most common among today’s Neo-Brandeisians, views antitrust enforcement as a remedy for a wide array of social and economic issues. The other, associated with the Chicago School, sees it as an embodiment of anti-business ideology. Entrenched in binary thinking, proponents of each vision often portray those who do not share their views as morally or intellectually deficient.
Addressing concerns about the intellectual integrity of antitrust, Assistant Attorney General Jonathan Kanter recently warned of a “crisis of expertise” driven by “a pervasive breakdown in the distinction between expertise and advocacy in competition policy.” According to Kanter, this crisis has led to “a seeping distrust of expertise by the courts and by law enforcers.” His warning is timely and important. It warrants further exploration.
Expertise crises manifest as widespread misconceptions within expert communities, broad distrust of specialists, misplaced confidence in populists, and entrenched biases. The Thalidomide tragedy, which caused birth defects in the children of women who took the drug during pregnancy to treat nausea, exemplifies how biases and misconceptions in expert circles can create social harms. The spread of post-truth narratives in the 21st century underscores broad distrust of established experts and misplaced confidence in populists. Similarly, the Great Depression of the 1930s and the Great Recession of the 2000s were traumatic historical episodes involving diverse types of expertise crises.
Antitrust law and expertise crises periodically intersect. For instance, zeal, misconceptions, and corporate funding shaped the Chicago School’s skepticism of antitrust enforcement in the latter half of the 20th century. Their scholarship and advocacy fostered misguided confidence in the efficacy of market forces to self-regulate. Today, Neo-Brandeisians display their own brand of zeal and misconceptions in their presumptions that any corporate bigness is anticompetitive in itself. Their criticism of the intellectual integrity of the Chicago School embodies ironic inconsistency, akin to the proverb “the pot calling the kettle black.”
The current crisis in antitrust expertise is marked by a combination of misconceptions, special interest influence, and populist distrust of expertise. This crisis partly reflects broader trends beyond antitrust, such as the rise of populism and a paranoid style in American culture that fosters skepticism toward expertise.
Unfortunately, antitrust enforcers in the U.S. and other nations often overlook how they contribute to this crisis. The present leadership of the Antitrust Division and the Federal Trade Commission exemplifies this point. Rather than promoting moderate and thoughtful discussions about legal doctrines, economic methodologies, and enforcement policies, they too often lend credence to intuitive and legally questionable arguments that appeal to populist sensibilities.
Motivated Reasoning
Psychologists have identified motivated reasoning—the tendency to gather, interpret, and present information in ways that align with one’s preferred outcomes—as a primary driver of biased expertise. The motivations behind it are varied and include financial incentives, career advancement, recognition, ideological alignment, conformity, and attention. Individuals who engage in or endorse motivated reasoning often fail to see their own biases. This cognitive pattern is well-documented and not unique to antitrust law. Luigi Zingales’ analysis of economists’ capture outlines several common mechanisms of motivated reasoning.
Motivated reasoning can become a powerful force in shaping and evolving ideological movements and other fads by aligning individuals’ cognitive biases with incentives like financial rewards, career advancement, recognition, and social conformity. Because these motivations foster selective interpretation and dissemination of information, they sometimes reinforce shared narratives and group cohesion. Simplified, emotionally resonant messages amplify recruitment, while institutional support—via think tanks or advocacy networks—embeds these biases into policy and public discourse. As movements gain momentum, feedback loops emerge, solidifying beliefs and enabling adaptation to changing contexts. Thus, motivated reasoning sustains ideological movements and propels their growth and evolution, often at the expense of objective analysis.
In the 21st century, the corrosive effects of motivated reasoning have intensified, fueling the spread of post-truth narratives, including conspiracy theories, misguided historical accounts, and misinformation. In politics, public discourse, and academia, objective facts are frequently overshadowed by appeals to emotion, particularly grievances. Antitrust law has not escaped this trend. The Neo-Brandeisian historical narratives provide an example of motivated reasoning, where like-minded, impassioned commentators developed flawed interpretations of antitrust history. Similar patterns shaped antitrust scholarship in the 20th century. Robert Bork’s study of the legislative intent of the Sherman Act is the most famous example. More broadly, researchers and academic institutions are inherently susceptible to motivated reasoning. Despite commitments to intellectual integrity, ideological and methodological fads are common in academia. Such trends influence academic discourse, hiring and promotion practices, and the placement prospects of academic papers.
The Brandeis-USM Controversy
Motivated reasoning in antitrust has a long history. One of the early, notable controversies involved Neo-Brandeisian namesake Louis Brandeis and United Shoe Machinery (USM). Brandeis played a crucial role in forming USM through a series of mergers during the Great Merger Wave (1895–1904). He was a shareholder, sat on the company’s board of directors, and served as its legal counsel. Brandeis severed his ties with USM while acting to establish himself as the “People’s Lawyer.” He later became a key figure in political and legal efforts to challenge USM’s monopoly power and practices. During his Supreme Court confirmation, critics accused Brandeis of unethical conduct, while his supporters argued the criticism was rooted in antisemitism and corporate interests.
The Brandeis-USM controversy offers three important lessons for current debates. First, the line between expertise and advocacy is often blurred. Second, both paid and unpaid engagements of antitrust experts can raise concerns about biased reasoning, yet they are essential for fostering practical and informed expertise. Third, vocal critics of alleged financial conflicts of interest may themselves overlook their own conflicts.
Competition and Motivated Reasoning
Antitrust law rests on the premise that “the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions.” The Supreme Court has repeatedly emphasized that, even when this premise falls short, the question of “whether a policy favoring competition is in the public interest” lies outside the scope of antitrust law. Consistent with this principle, in Dr. Miles (1911), the Supreme Court evaluated alleged harm to competition in quack markets.
In practice, competition in the marketplace of ideas can exacerbate problems of motivated reasoning. Competition for attention on social media networks exemplifies this dynamic. A recent paper by Zingales and co-authors, The Conflict-of-Interest Discount in the Marketplace of Ideas, concludes that while market mechanisms and institutional arrangements possibly mitigate issues related to motivated reasoning, these measures are often insufficient. As a result, periodic crises of expertise are virtually unavoidable.
Neo-Brandeisians and their followers have interpreted their successes in the political arena and public discourse as evidence of the soundness of their views and policy prescriptions. They are likely to learn that this interpretation is flawed. While Kanter is correct that academia is influenced by factors that compromise its integrity, the Neo-Brandeisian movement is not above this distortive influence but is complicit in it.
Moderation Is an Essential Remedy
Richard Hofstadter’s seminal essay, What Happened to the Antitrust Movement, continues to offer an insightful framework for understanding antitrust expertise. Populist movements can sometimes create conditions for reform by challenging entrenched establishments upheld by technocrats. However, their reliance on the paranoid style comes at the cost of genuine expertise. The social costs of such trends can be substantial.
Nonetheless, passionate movements may serve as catalysts for needed policy changes. The tedious work of moderate technocrats, who emphasize tradeoffs and welfare effects, is vital for the development of legal standards and analytical tools. Yet, technocratic moderation lacks the dynamism needed to inspire reform. In antitrust, this pattern has led to cycles of overly lax and excessively aggressive enforcement. Still, simplified narratives of antitrust history overlook the critical role that moderate thinkers have played in its evolution. Discarding the work and ideas of the bulk of the technocrats will not pave the way to lasting reform but compromise its implementation.
Conclusion
The pursuit of remedies for motivated reasoning holds significant expressive value and can help mitigate radicalization. Therefore, the antitrust community should consistently engage in such efforts. However, it is important to recognize that motivated reasoning will always persist. The current expertise crisis reflects a substantial societal discounting of expertise and moderation. Expert circles, including the antitrust community, must strive to rebuild public trust in the integrity of moderate technocrats. After all, the most valuable public policies sometimes come wrapped in boring packages.
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Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
