Hayek as a New Brandeisian? The Need to Distinguish Theory from Practice in Hayekian Competition Policy

October 2018

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Hayek as a New Brandeisian? The Need to Distinguish Theory from Practice in Hayekian Competition Policy

By Joseph V. Coniglio (Wilson Sonsini Goodrich & Rosati)1

Introduction

The New Brandeis Movement (“NBM”) initially appeared to constitute a broad policy platform aimed at replacing antitrust law’s consumer welfare standard with a structural paradigm that would reanimate the purported political content of the Sherman Act.2  After receiving criticism from many in the antitrust bar, the NBM appears—at least as a practical matter—to have both abandoned a political reinterpretation of U.S. antitrust law and emphasized Section 5 of the FTC Act, which is already generally understood to reach at least some business conduct that is beyond the scope of the Sherman Act, as a vehicle for its enforcement program.3  Still, a structural theory of antitrust divorced from the consumer welfare standard—and thus distinct from the Harvard School—appears to remain central to the NBM’s competition policy.4

Separated from both broader political goals and the consumer welfare standard, however, the question arises as to what rationale the NBM would now employ for its structure and process paradigm, which ultimately appears to reduce to a “big is bad” approach to antitrust that would condemn at least some increases in market concentration without any presumption or case-specific evidence evincing a reduction in consumer welfare.5  To answer this question,…

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