# New Brandeis Movement The revival of the argument that concentrated private power is a **political** problem, not merely an economic one — that bigness carries dangers to self-government, to suppliers, to workers, and to a free press that no price index can register. Named for [[Louis Brandeis]] and his "curse of bigness." Its founding text is [[Lina Khan]]'s "Amazon's Antitrust Paradox" (*Yale Law Journal*, January 2017), whose title answers [[Robert Bork]] directly: a platform that deliberately forgoes profits to build dominance is invisible to a standard that only looks at price. [[Barry Lynn]]'s work at the [[Open Markets Institute]], [[Tim Wu]]'s *[[The Curse of Bigness]]* (2018), and Zephyr Teachout's *Break 'Em Up* (2020) supplied the rest of the frame. From law review to two federal agencies in four years: Khan chaired the [[FTC]] from June 2021, [[Jonathan Kanter]] ran the [[Antitrust Division]] from November 2021, Executive Order 14036 (July 2021) took a whole-of-government approach, and the **2023 Merger Guidelines** rebuilt merger analysis around the structural presumption of *Philadelphia National Bank* (1963). The verdict is still coming in. [[FTC v. Meta]] was lost at trial in November 2025 on market definition; [[United States v. Google]] was won on liability but denied a structural remedy; [[FTC v. Amazon]] does not reach trial until March 2027. The most durable win so far — the 2023 Merger Guidelines — survived a change of administration, which nobody predicted. ## What it argues Three claims, in order of how much they break with the last fifty years. First, that the [[Consumer Welfare Standard]] — the Bork-era rule that antitrust exists only to protect consumers from higher prices — is a choice, not the law, and that the Sherman and Clayton Acts were written by people worried about political and economic power, not price. Second, that structure matters: a market with three sellers behaves differently from a market with thirty regardless of whether anyone can prove a price effect, so the structural presumptions the courts used before 1980 should come back. Third, that the harms the price test cannot see are the important ones — [[Monopsony]] against workers and suppliers, the squeeze on local news and independent business, the leverage a platform has over the people who depend on it. The name is a claim about lineage: [[Louis Brandeis]] saw "the curse of bigness" as a threat to self-government, and the movement's argument is that this was the mainstream view until the Chicago school displaced it. The critics' label, "hipster antitrust," was coined in 2017–18 by Chicago-school opponents including Joshua Wright; the movement half-adopted it. The serious objection is not that bigness is harmless but that a standard without a price anchor gives enforcers and judges no way to decide cases consistently — which is why the movement's answer was to rewrite the [[Merger Guidelines]] with concrete structural thresholds rather than to argue values in court. ## What it did Between 2021 and 2024 it held both agencies. The [[FTC]] under [[Lina Khan]] sued Amazon and Meta, banned non-competes (a rule the courts blocked), and rewrote merger review; the [[Antitrust Division]] under [[Jonathan Kanter]] won [[United States v. Google]] on liability, filed [[United States v. Apple]] and the [[Live Nation Antitrust Case]], and took on RealPage's rent-setting algorithm. Executive Order 14036 (July 2021) put 72 antitrust directives across the whole executive branch. The 2023 Merger Guidelines restored the structural presumption of [[United States v. Philadelphia National Bank]] and added theories — serial acquisitions, labor-market effects, platform ecosystems — that the 2010 guidelines did not have. ## What survived the change of administration More than anyone expected, in the tools; less than it looked, in the use. [[Andrew Ferguson]]'s FTC kept the 2023 Guidelines and continued [[FTC v. Amazon]] to a March 2027 trial; [[Gail Slater]]'s Division continued Google and Live Nation and described its own program as "America First Antitrust" — populist on tech, hostile to "woke" corporate consolidation. Then the results came in. [[FTC v. Meta]] was lost at trial in November 2025 on market definition; Google was won but the remedy denied a breakup; the Live Nation case was settled mid-trial in March 2026 without the divestiture it had been brought for, after lobbyists with White House ties intervened; Slater was pushed out in February 2026. The pattern the vault records across these cases is that the right kept the neo-Brandeisian *toolkit* — structural presumptions, skepticism of platforms — and swapped the *theory of harm* for one about political enemies and friends. The [[Antitrust Division]] page has the HPE/Juniper finding that puts that on a court record. ## See Also - [[Antitrust]] · [[Consumer Welfare Standard]] · [[Merger Guidelines]] · [[Monopsony]] · [[Corporate Power]] - [[Lina Khan]] · [[Jonathan Kanter]] · [[Tim Wu]] · [[Barry Lynn]] · [[Louis Brandeis]] · [[Robert Bork]] - [[Open Markets Institute]] · [[The Curse of Bigness]] · [[FTC]] · [[Antitrust Division]] - [[FTC v. Amazon]] · [[FTC v. Meta]] · [[United States v. Google]] · [[Live Nation Antitrust Case]] - [[US Antitrust and Monopoly Timeline]]