Abstract

This article engages ongoing policy debates concerning the relationship between concentrated economic power, democracy, and the rule of law, focusing on competition policy – known in the United States as Anti-Trust law. I analyze how Neo-Brandeisian jurists and advocates (who are named after the late, Progressive-Era U.S. Supreme Court Justice, Louis Brandeis), have raised critical concerns in their critiques of how Chicago School jurists have conceived of and deployed the concept of “consumer welfare.” As I argue, the crux of the Neo-Brandeisian intervention concerns the need to reevaluate the appropriate relationship between governments and markets. Yet, as I also explore, Neo-Brandeisians err in their depiction of market dynamics and the place of labor within them. To address these problems, I incorporate insights from Marxist legal studies and political economy. I present my argument in the historical evolution of competition policy, highlighting how one of its principal elements has been a concern with challenging concentrated economic power. My discussion highlights how a revised standard for competition policy, especially with respect to promoting democracy, is possible from synthesizing insights from Neo-Brandeisians with Marxists.

Keywords: Rule of law; corporations; competition policy; neo-brandeisians; Marxism

From: New Political Science 2022 44 (3)

Editor: Wang Yi