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. In the early years of the 20th Century, Louis Brandeis (1856-1941) was known as the “the people’s lawyer,” in part because of his tireless advocacy for effective antitrust laws to curb the power of industrial trusts like U.S. Steel. In 1916, Brandeis joined the United States Supreme Court, where he was known for his fierce opinions in favor of free speech and the ability of states to act as “laboratories” of innovation in public policy. He is also credited with creation of the “Brandeis Brief,” which relied on empirical evidence and social sciences to support the constitutionality of state laws. Brandeis co-authored the first, and seminal, law review article advocating for the protection of individual privacy.

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.

[Jonathan Sallet is a Benton Senior Fellow]