From Broad Goals to Antitrust Legislative Standards

The purposes of antitrust law can be broad; the mechanism of antitrust is legal. This is the core of Brandeis’s approach—to find enforceable legal standards that identify harmful industrial conduct in a manner that vindicates social and democratic values through the careful delineation of institutional roles. That job was made easier because Louis Brandeis subscribed to the view that these social and democratic values were all threatened by monopoly; thus by focusing on the practicalities of competition, antitrust statutes could advance broader societal interests as well. Louis Brandeis was one of America’s fiercest advocates of stronger antitrust laws and governmental action to constrain market power. The impact of his advocacy between 1911 and 1914 helped propel the enactment in 1914 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.

[Jonathan Sallet is a Benton Senior Fellow]