Brandeis: An Emphasis on Facts

Benton Foundation

Tuesday, January 29, 2019

Digital Beat

Brandeis: An Emphasis on Facts

With publication of Louis Brandeis: A Man for This Season by the Colorado Technology Law JournalJon Sallet and the Benton Foundation are offering this new series, Updating Antitrust for a New Age, adapted from that article to demonstrate that progressive competition policy incorporated both the goals and the means that Brandeis believed would provide the strongest tools to fight against the trusts and the monopolies of his day. This series is part of an ongoing examination of how to update Brandeis—and, more importantly, antitrust—for the digital age.

Jonathan Sallet
 Jonathan Sallet

From Louis Brandeis’s perspective, application of antitrust laws required both the embrace of hard-headed inquiry, spanning economics and the social sciences, and the litigator’s skill of distilling crucial facts. Brandeis’s work as a lawyer in private practice, his stint as special counsel to the Interstate Commerce Commission (ICC), and his time on the bench demonstrate his commitment to solving social and economic problems, examining the practical reality of economic circumstances, and serving the purposes of the law with rigor and commitment.

On January 3, 1916, less than a month before he was nominated to serve on the Supreme Court, Brandeis explained to the Chicago Bar Association why he believed dissatisfaction with administration of the law had grown -- because courts “applied complacently 18th Century conceptions of the liberty of the individual and of the sacredness of private property.” He believed such courts had embraced “[e]arly 19th Century scientific halftruths” like Social Darwinism that had been enshrined “into a moral law,” while they ignored “contemporary conceptions of social justice” and the rise of the Industrial Age. This led to a jurisprudence that “all too frequently” declared state laws to be unconstitutional.

Brandeis’s antidote was better lawyering: a detailed factual record that supported “reasoning from life” rather than “reasoning from abstract conception.”

In seeking a solid ground for judicial application of legal principles, Brandeis recognized the importance of economic analysis. Indeed, he described himself as an “economic student.” As Professor Gerald Berk explains, Brandeis was:

uninterested in the “law and economics” approaches of his era (e.g., distinguishing naturally monopolistic from competitive sectors by abstract theories and then fitting facts to categories). Instead, he wanted to know how concrete economic processes and legal arrangements fostered liberties that made improvements possible or locked in power that blocked those sorts of liberties.[i]

In 1918, Brandeis authored his best-known antitrust opinion, Chicago Board of Trade v. United States, in which he articulated how such a methodology should be applied: "The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition."

As a Supreme Court Justice, Brandeis “liked to remind people that he had been a practicing lawyer for thirty-seven years before going on the Court, and he had learned that the accuracy of his facts could be a more powerful argument than the logic of his law.”[ii] As a judge reviewing Sherman Act cases he did not indulge in large theories of political power; rather, he used a microscope to peer into the fine grain of fact-patterns.

The emphasis on facts, informed by economics and the social sciences, in pursuit of the application of an established legal standard differentiates the role of the lawyer, enforcer, and judge from that of the legislator.

In my next article, I will explore the balance of antitrust law and sectoral regulation.


Jonathan Sallet is a Benton Senior Fellow. He works to promote broadband access and deployment, to advance competition, including through antitrust, and to preserve and protect internet openness. He is the former-Federal Communications Commission General Counsel (2013-2016), and Deputy Assistant Attorney General for Litigation, Antitrust Division, US Department of Justice (2016-2017). 

Updating Antitrust for a New Age


[i] E-mail from Gerald Berk, Professor, University of Oregon to Jonathan Sallet (Oct. 31, 2017, 1:53:13 PM EDT)

[ii] Urofsky, Melvin. Louis D. Brandeis: A Life. 2009.


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By Jonathan Sallet.