Jonathan Sallet

For Louis Brandeis, antitrust would serve both social and economic goals. He saw complete harmony in critiquing the economic justification for corporate power, on terms familiar to modern antitrust analysis, while pressing the larger case for democracy and industrial liberty. Legislatures can, and should, take an expansive view. As a starting point, Brandeis believed that values other than economics would be served by the protection of competition through antitrust, chief among them the preservation of democracy and individual initiative. This was not a subtle view.

The Federal Trade Commission is tackling a central question of competition: Are the goals of antitrust enforcement in the United States best pursued by applying what’s known as the consumer welfare standard? But what does it mean just to safeguard “consumer” welfare?

Brandeis’s view of progressive governance meant that the government could improve itself and the lot of its people. The Brandeisian approach to competition has five parts; together they comprise the framework for progressive governance in the field of competition. 1. Antitrust and Social Issues. 2. Translating Social Issues Statutory Commands. 3. The Institutional Approach. 4. The Role of Competition. 5. The Spirit of Experimentation. Louis Brandeis viewed America itself as an experiment.

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.

American democracy, like any democracy, requires the freedom to speak. But American democracy has always recognized the corollary: the strength of speech rests on access to communications networks. From the Post Office, to the telegraph, the telephone, and broadband, governmental action of various stripes has helped connect Americans to each other. The Benton Foundation serves that mission. Our goal: To bring open, affordable, high-capacity broadband to all people in the U.S.

In the wake of the government’s setback in the AT&T/Time Warner case, it’s natural enough to ask: what will be that case’s impact on the government’s ability to challenge vertical mergers in the future? I think the answer is “very little if anything.” The government could take steps to build an even stronger foundation for the review of vertical mergers in the future. Here are some suggestions. First, the current 1984 guidelines on the treatment of vertical (technically, non-horizontal) transactions should be withdrawn. Second, new vertical guidelines should be created.

Let’s remember that the core notion of democracy underlying antitrust is the value of individual opportunity, free from the workings of political or economic power. Individual choice in democratic elections and individual choice in competitive markets share an intellectual legacy. These democratic roots of antitrust are best served by upholding the ability of antitrust enforcement to carry out its duties free from the jousting and scuffling of day-to-day politics.

[Commentary] A few years ago, Yale Law School Professor Jack Balkin explained that “a system of free speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression.”  He wisely observed that policies that facilitate open innovation “better serve the interests of speech in the long run.” To innovate, to speak, to learn, to trust – these are outcomes squarely within the power of the Federal Communications Commission to advance.

In the early years of the 20th Century, Louis Brandeis was America’s most influential advocate for antitrust enforcement but his contributions to antitrust have been much debated ever since.

Multisided platforms are ubiquitous in today’s economy. Although newspapers demonstrate that the platform business model is scarcely new, recent economic analysis has explored more deeply the manner of its operation. Drawing upon these insights, we conclude that enforcers and courts should use a multiple-markets approach in which different groups of users on different sides of a platform belong in different product markets. This approach appropriately accounts for cross-market network effects without collapsing all of a platform’s users into a single product market.