The Old Brandeis and the New Madison in Historical Perspective

The modern progressive view of antitrust, which has its origins in Louis Brandeis’s famous attack on “The Curse of Bigness,” regards large firm size as a source of improper political influence, regardless of the concentration of market power within the industry. That Brandeisian view, championed today by Tim Wu and Lina Khan, now in the Biden administration, calls for a vast expansion of antitrust enforcement. Unfortunately, all too often that approach has given a free rein to monopolistic activities in agriculture and labor, while at the same exposing productive firms to political attacks that all too-often work to prop up weaker market competitors. The New Madison approach of Makan Delrahim rightly exposes the overreaching of that approach in dealing with patent pools. And his cautionary attitude also warns against the counterproductive effects of the antitrust laws in other sectors outside the IP sector.

By Richard A. Epstein¹

I. INTRODUCTION

One striking feature about modern intellectual debates is how much emotional impact can be packed into a single word — big, as in bad. Today, a debate is raging in the overlapping areas of antitrust and patents. Their combination holds the keys to innovation, which everyone on both sides of the political spectrum seem, at least as at some abstract level, to support. But the means to that end, and its relationship to other social ends, divide the academic and practical worlds into two warring camps. On the one side st