In April 2007 the Antitrust Modernization Commission reported to Congress that “the state of the U.S. antitrust laws” was “sound.”1 Created by lawmakers to examine whether antitrust laws should be revised, the bipartisan Commission concluded that existing statutes were sufficiently flexible to address emerging issues, and that courts, antitrust agencies, and practitioners were now in proper agreement that “consumer welfare” was the “unifying goal of antitrust law.”2 A decade later, the American Bar Association’s Antitrust Section delivered a similar assessment, remarking that “the Nation’s system of competition enforcement has been in good hands.”3 These reports represented a high-water mark of agreement within the antitrust community that, despite ongoing debates about specific doctrinal tests or particular standards of proof, antitrust law was, altogether, on the right course. The fact that antitrust had shed its public appeal in favor of an expert-driven enterprise — becoming “less democratic and more technocratic”4 — was generally seen as further evidence of its success.5
Today, however, it is clear that what may have appeared as the end of antitrust history proved instead to be a prolonged pause in an enduring clash over the purpose and values of the U.S. antitrust laws.6 Over the last few years, the relative stability of the antitrust consensus has yielded to a sharp rupture.7 Two aspects of this break are most notable: first, the fact that the debate cuts to foundational questions about the goals of antitrust, and second, its highly public-facing nature. No longer relegated to law journals and practitioner conferences, antitrust has once again been thrust to the forefront of public conversation, prompting front-page headlines,8 congressional hearings and investigations,9 magazine covers,10 and discussion at a presidential debate.11 Antitrust law has been transformed quickly from a relatively settled and sequestered domain of expertise to an area of active debate, with its future now something to be constructed rather than inherited.
Professor Tim Wu’s The Curse of Bigness is a book for this moment. In just under 150 pages, Wu offers a sweeping history of antitrust law and traces how it is that, in his view, antitrust became unmoored from its central tenets and animating principles. The book presents a diagnosis and a bold call to arms, seeking to recover a republican theory of antimonopoly and to rehabilitate robust antitrust enforcement. Writing about a specialized area of law for a generalist audience inevitably exposes an author to criticism, which Wu has drawn.12 But assessing the book solely as an academic contribution misunderstands the theory of change reflected in Wu’s choice of format. The Curse of Bigness is written for a mainstream audience because Wu believes that reinvigorating antitrust will require more than winning over academics or practitioners. Instead, informing and engaging the public — including advocates, organizers, policymakers, journalists, and other general readers — is a prerequisite for creating the political pressure needed to reorient antitrust around the antimonopoly values it has abandoned in recent decades.13
This Review builds on Wu’s book to explain the significance of the current rupture in antitrust and to situate it within a broader intellectual trajectory. Debates over the foundational purpose of antitrust are not new, and examining how this latest clash fits alongside previous contestations is essential for understanding what has yielded the current contestability and assessing the competing visions.
Part I of this Review summarizes Wu’s chief contributions in The Curse of Bigness, focusing on three tenets that form the basis of the book. Part II offers an analytic breakdown of the overhaul in antitrust doctrine that is the subject of Wu’s critique, tracing the transformation of antitrust to changes in descriptive claims and normative assumptions that the Chicago School introduced. I argue that framing Chicago’s interventions this way lets us map the current antitrust debate with greater coherence. Doing so, moreover, reveals the limits of proffered correctives to the Chicago School and underscores the need for what has been called a “Neo-Brandeisian” program in law and political economy. Part III argues that a central component of the Neo-Brandeisian project should include reforming the institutional structure of antitrust law and policy. Although most critiques of present-day antitrust focus on doctrinal rules and the substantive legal framework that governs antitrust analysis, the exclusive reliance on a common law approach to antitrust is a key source and enabler of current dysfunctions. Complementing (or even largely supplanting) this common law structure with an administrative approach would both equip antitrust to keep pace with evolving business practices and new market realities and help democratize antitrust in the ways that Wu and other reformers champion.
* Academic Fellow, Columbia Law School; Counsel, U.S. House Committee on the Judiciary, Sub-committee on Antitrust, Commercial, and Administrative Law. This Review reflects my personal views and not those of the Committee or any of its members. For insightful comments and con-versations, I am grateful to Eleanor Fox, David Grewal, Lev Menand, John Newman, and Marshall Steinbaum. Many thanks to the Harvard Law Review for thoughtful feedback and careful editing.