Monday, October 23, 2017

Coniglio on the New Brandeis Movement's Sherman Act

It is has been a very long time since I checked in with the historiography of the federal antitrust laws.  Here’s an anecdote from the last time I did.  One day, during my first years of law teaching, my sister Ruth asked me what I was working on.  I started in on a reply by saying,“Well, you know, the centennial of the Sherman Act is coming up.”  Her response: “I had no idea.  I’ll have to run out and buy a new dress!”

That’s a long-winded way of explaining why I'm interested to see that the latest attempts to put antitrust law to progressive use has been generating a new interest in the origins and early years of the Sherman Act.  We’ve already noted one attempt to create an origins myth for progressives.  Now, via Legal Theory Blog, comes something of a counter from Joseph V. Coniglio, an associate at Wilson Sonsini Goodrich & Rosati.  It is a post on the Competition Policy International's website, How the “New Brandeis Movement” Already Overshoots the Mark: Sketching an Alternative Theory for Understanding the Sherman Act as a Consumer Welfare Prescription. From the introduction:
For the past several decades, the antitrust laws have been expressly understood as a consumer welfare prescription. Known as the “New Brandeis Movement,”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 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.

1 comment:

Shag from Brookline said...

Back in the 1960s I joined the ABA's Anti-Trust Section primarily for the literature to address issues a growing corporate client would be facing. I learned the intricacies of the Robinson-Patman Act from the New Deal. But by the early 1980s, antitrust law concerns seemed to dwindle despite more concentrated industries. The current administration seems intent on neutering post-Great Recession consumer protection laws as well as healthcare, which suggest to me that antitrust is in medical terms in need of a hernia repair.