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, the looming election makes all those new policy priorities uncertain: Whoever wins, it will not be Joe Biden, and the neo-Brandeisians’ fate is up in the air. In short, the movement could use some fresh ideas. One place to look might be the last big antitrust revolution, when the Chicago school executed a clean law-and-economics sweep of the field in the 1970s and 1980s. The Chicagoans understood the importance of antitrust standing—and today’s antitrust reformers should too. This obscure procedural backwater determines 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 it is neither immutable nor apolitical. To the contrary: Small, manageable 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. 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.