Antitrust Law: Look Back to the Future

I believe that Louis Brandeis’ progressive framework can help us navigate the future of antitrust:

First, Brandeis believed that legislators creating antitrust laws should consider broad economic and social issues. Second, legislatures should enact enforceable legal standards that identify harmful industrial (that is to say, economic) conduct in a manner that vindicates their chosen social and democratic values. Third, antitrust enforcers are to bring their expertise to bear, using economics and evidence. And, of course, they must prove their cases in court, which focuses any lawyer’s attention – and judicial decisions -- on the facts at hand. Brandeis believed that the right laws would lead to the right investigations, and then, to the right results. Fourth, Brandeis was creative in thinking of ways to improve sectoral regulation when competition could not be expected to flourish. Fifth, competition policy (both antitrust and sectoral regulation) is to be informed by a spirit of experimentation.