Abstract

"Antitrust After Neoliberalism"

Gerald Berk, University of Oregon (gberk@uoregon.edu)

Antitrust is back on the policy agenda. Led by a group of activists, who take their name from Progressive Era reformer, Louis Brandeis, the movement has made fast progress. From high posts in the Biden administration, Congress, and states attorney generals, the New Brandeisians have initiated suits against Google and Amazon, enacted new legislation, revised merger guidelines, and more. My paper seeks to make sense of the New Brandeisans. I draw on Karl Polyani’s concept of (dis)embedded liberalism for help. After a generation of neoliberalism, the New Brandeisians are trying to re-embed markets in law and politics. As much as this approach explains, I also find puzzling aspects of their program. First, instead of reasoning from democratic or Constitutional norms, the New Brandeisians agree with Neoliberals that markets tell truths that all liberal democracies ignore at their peril. Second, they call for deregulation in some areas of antitrust. Finally, in reversal of twentieth century embedded liberalism, they seek to reduce the discretion of regulators. I find help to make sense of these puzzles in three historical concepts drawn from Michel Foucault’s 1978 lectures on neoliberalism: governmentality, market veridiction, and the monopoly paradox. To simplify, Foucault explains that there was always a tautology at the heart of liberalism: it said that government disregard truths told by markets (such as, natural prices) at their peril, but only in so far as governments acted to make those truths possible by blocking monopolies. “Antitrust after Neoliberalism” shows how Chicago School antitrust sought to solve the monopoly paradox theoretically and failed. I make sense of the anti-Polyanian aspects of the New Brandeisian project by showing how its architects return liberalism’s monopoly paradox to the center of their analysis.