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Revitalizing US antitrust enforcement is not simply a contest between Brandeis and Bork—look first to Thurman Arnold

 |  February 1, 2019


By Jonathan B. Baker

Growing market power in the United States today puts a spotlight on our nation’s antitrust laws—the critical policy tool for restoring competition where it is lacking—from airlines and brewing to hospitals and dominant online platforms. But how can these laws be made more effective in this environment? The best guide from the past is Thurman Arnold, President Franklin D. Roosevelt’s longest-serving antitrust enforcer.

Arnold helped shape a political consensus for effective antitrust enforcement. Yet his singular contribution is often overlooked in the present-day debate over antitrust’s future. That achievement—the embrace of an antitrust enforcement playbook for supervising large firms that is competition-promoting and economic growth-enhancing—is endangered today.

To put Arnold’s achievement in perspective, let me briefly summarize more than a century of U.S. antitrust history. For decades after 1890—the year Congress enacted the Sherman Antitrust Act—antitrust laws were enforced inconsistently, and government policy toward large firms was the subject of bitter political debate. That changed after Arnold took the helm of the Justice Department’s Antitrust Division toward the end of the New Deal, and the so-called structural era of U.S. antitrust history began to take shape. The strong rules put in place beginning in the 1940s were relaxed in the late 1970s and 1980s, when antitrust doctrine entered its “Chicago school” era, named after the conservative proponents of this new approach who were associated with the University of Chicago.

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