We Must Let Our Minds Be Bold
Tuesday, October 23, 2018
We Must Let Our Minds Be Bold
With publication of Louis Brandeis: A Man for This Season by the Colorado Technology Law Journal, Jon Sallet and the Benton Foundation are offering this new series 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. Jon will be presenting the key conclusions from his Brandeis article to the Federal Trade Commission, in its hearing on the Consumer Welfare Standard on November 1, 2018 and in an event hosted by the Washington Center for Equitable Growth on November 14, 2018.
Louis Brandeis understood the danger of monopoly. He understood the power of networks to thwart competition, even if those networks were made of railroad tracks not fiber-optic cable. And he understood the feeling of many people that the economy is no longer working for them, limiting opportunity for economic and individual advancement.
Given the current, prominent discussion of the future of antitrust in these economic times, a reexamination of Brandeis seems very timely indeed.
The Curse of Bigness
In his day, Brandeis explained that the American economy was beset by what he famously called “The Curse of Bigness,”[i] that monopolies threatened democracy and limited the scope of individual opportunity, that these businesses’ success was founded on improper actions that unfairly harmed independent competitors, and that the antitrust laws should be reformed to stop the power of the trusts. For Brandeis, democracy was more than just the ability to cast a vote; it rested on the ability of Americans to participate fully in the industrialized economy. Brandeis saw this “industrial liberty” as integral to political liberty.
From a Brandeisian viewpoint, antitrust does not reside on an island apart from society. It helps to form society. When Brandeis connected economic opportunity to democracy, it was because he understood that a democracy could not function well if many people felt that their economic well-being was being ignored. In other words, he believed that corporate power that threatened industrial liberty threatened political liberty as well.
Brandeis advocated for the enactment of both the Federal Trade Commission Act (“FTC Act”) and the Clayton Act, which established federal authority to stop unfair methods of competition and empowered federal antitrust agencies to stop transactions before they were consummated. Both laws were animated by Brandeis’s belief that antitrust should be able to stop harm to competition in its incipiency.
In Brandeis’s formulation of antitrust and competition law, progressive governance means, first and foremost, that the government can and should act to protect and promote competition.
Brandeis in the 21st Century
Antitrust is now on the front-burner of American politics. Advocates of more aggressive antitrust – like Barry Lynn and Guy Rolnick – have been labeled “The New Brandeisians.” Brandeis biographer Jeffrey Rosen believes that Brandeis would have favored the action taken in 2015 by the Federal Communications Commission (while I was General Counsel there, it should be noted) to preserve and protect net neutrality.
But Brandeis has not been universally praised. Barak Orbach and Grace Rebling depict “the curse of bigness” as a “fear that confuses all notions of size . . . and associates bigness with a wide range of societal harms.”[ii] Critics say Brandeis as too quick to incorporate democratic values into his antitrust thinking while failing to apply important economic concepts.[iii]
I do not want to suggest that Brandeis provides us with the specific answers to competition-policy disputes in the 21st century. But his writings direct our attention to democratic values and a broader discussion about the purpose and goals of the antitrust laws.
Brandeis believed that the answer to the economic and social problems exposed by populism was to construct institutions that could solve problems rather than indulging any populist impulse to tear down instruments of governance. When institutions and laws proved inadequate, his answer was to enact better laws and new forms of governance, such as the Clayton Act and the FTC Act, in order to achieve the democratic, social, and economic goals that he was convinced were threatened by concentrated economic power.
Brandeis’s vision was as wide as the aperture that gathers in all of the social and economic considerations that a legislature may consider and as sharply-focused as the most damning cross-examination.
Brandeis believed economic frustration and populist impulses could best be addressed through the creative construction and use of institutions; by giving institutions the tools they need to succeed, and by calling upon lawyers and judges to apply the rule of law. Brandeis can thus be understood as expressing great confidence that appropriately-crafted antitrust and competition law and regulation would empower the legal system to achieve the social and democratic goals that he favored.
Let Us Be Bold
In 1932, then-Supreme Court Justice Louis Brandeis wrote, “If we would guide by the light of reason, we must let our minds be bold.” The importance of the Brandeisian approach to competition remains important because, like him, we find ourselves in a time when we must consider deeply and creatively the manner in which antitrust laws, institutional structures, including sectoral regulation, and the rule-of-law can best further the cause of competition.
But antitrust is too important to be left only to antitrust experts. Brandeis can help us incorporate a broader range of substantive and process values and learnings into the discussion of the formation of antitrust laws. Moreover, Brandeis provides insight on the drafting of antitrust laws, on the role that the legal system should play, on the use of sectoral regulation, and, always, on the importance of facts and experimentation in fighting for competition.
The more I read the words that Brandeis wrote and spoke, the more I came to appreciate the bold manner in which he reached for very big goals, while recognizing the careful manner he believed was appropriate for legal institutions. He was like a person standing on a beach, taking in the grand view of sea and mountains in the distance, while simultaneously examining the smallest grain of sand at his feet. We should do our best to do the same.
In my next article, I’ll outline the five key principles for competition policy that I believe best describe this Brandeisian approach.
“Brandeis understood the Constitution’s basic objective as the creation of a certain kind of democratic system of government – a system that protects fundamental human liberty while assuring each citizen the right to participate in well-functioning democratic decision-making institutions.”
-- Supreme Court Justice Stephen Breyer
[i] LOUIS BRANDEIS, THE CURSE OF BIGNESS 109–111 (Osmond K. Fraenkel ed., 1934).
[ii] Barak Orbach & Grace C. Rebling, The Antitrust Curse of Bigness, 85 S. CAL. L. REV. 605, 608 (2012)
[iii] Such criticisms may 1) conflate the role of the legislator, on the one hand, with the roles of lawenforcers, lawyers, or judges, on the other and 2) confuse Brandeis’s support of the legislation in order to advance social and economic goals with the distinct manner in which he thought legal standards should be drafted or laws, once enacted, should be enforced.
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).
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