New Brandeis's New Battleground

The neo-Brandeisian movement swept through antitrust like wildfire, hurtling its adherents into prominent Biden administration posts. But it threatens to be a flash in the pan. Three years into the federal government’s effort to remake antitrust, the bold progressives have little outside the executive to show for their grand plans—not for lack of trying, either. Worse still, a looming election might mean an about-face on all those new policy priorities. In short, the neo-Brandeisian movement could use some fresh ideas. One place to look would be the last big antitrust revolution, in the 1970s and 1980s, when the Chicago School executed a clean law-and-economics sweep of the field. <br><br>The Chicagoans understood the value of antitrust standing—and so should today’s antitrust reformers. These obscure procedural rules determine who benefits from the antitrust laws, how much antitrust enforcement we get, and who controls antitrust litigation. And the Chicago experience goes to show that they are neither immutable nor apolitical. To the contrary. Small, achievable changes in antitrust standing law had huge implications for the law of competition. Reversing course from the Chicago status quo (and even pushing further) could give neo-Brandeisian antitrust a similar boost.<br><br>Policy bona fides aside, antitrust standing is politically and doctrinally poised for its time in the spotlight. A broader view of antitrust standing enjoys bipartisan support, even from populist figures on the right, and would thrive in today’s text-centric legal environment. Best of all, any changes would endure across administrations—no need to stress about the election. Antitrust standing is the path forward.