How the “New Brandeis Movement” Already Overshoots the Mark: Sketching an Alternative Theory for Understanding the Sherman Act as a Consumer Welfare Prescription

October 2017

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How the “New Brandeis Movement” Already Overshoots the Mark: Sketching an Alternative Theory for Understanding the Sherman Act as a Consumer Welfare Prescription By Joseph V. Coniglio[1]

For the past several decades, the antitrust laws have been expressly understood as a consumer welfare prescription.  Known as the “New Brandeis Movement,”[2] an increasingly vocal group of commentators have made arguments suggesting that the Sherman Act should be enforced commensurate with social and political values.  By applying contemporary insights from the “new originalism,” this short article sketches a legal theory for confirming consumer welfare[3] as the Sherman Act’s raison d’etre.  The Sherman Act should be “interpreted” as an open-textured statute protecting competition from restraints of trade – be they agreements or firms with monopoly power – that satisfy a criterion of unreasonableness.  In determining whether a restraint of trade is unreasonable, the Sherman Act should be “constructed” according to the consumer welfare standard set forward by the Supreme Court.[4]

A New Originalism for Old Problems with Original Intent

The “new originalism,” generalized from a constitutional context, can been identified with four core premises: first, the original meaning of a legal text is fixed at the time of its enactment; second, enforcement by courts and agencies should be constrained by the text’s original meaning; third, the lega…

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