Why Calls for Shifting to Brandeisian Economic Theory Are Flawed: An Evaluation of the United States’ and European Union’s Approach to Vertical Mergers

Authors

John A. Fortin, George Mason University, Antonin Scalia School of Law

Abstract

The tech industry has exploded over the last few decades and progressives are advocating for a shift in antitrust review in the United States (US).1 Seeking a modified economic theory based on the writings of the late Justice Louis Brandeis (Brandeisian economic theory), these advocates seek to control the vertical expansion of dominant tech firms such as Amazon.2 On a broad level, this position argues for a shift of US antitrust regulatory review towards the European Union’s (EU) application of antitrust regulation. This paper provides a review of both US and EU antitrust review, provides a primer on vertical merger theory and Chicago school economic theory, and compares and contrasts US and EU review of certain business practices to conclude Brandeisian economics will not achieve its advocates’ goals and will have a negative impact on consumers. Finally, this paper supports a proposal to modify and strengthen consent decrees following merger review in order to use a scalpel—rather than a sledgehammer—to adapt to the changes in the technological environment. Most importantly, this proposal would actually protect consumers, not competitors in the marketplace.

Recommended Citation

John A. Fortin, Why Calls for Shifting to Brandeisian Economic Theory Are Flawed: An Evaluation of the United States’ and European Union’s Approach to Vertical Mergers, 54 U. Rich. L. Rev. 1 (2020).
Available at: https://scholarship.richmond.edu/lawreview/vol54/iss5/1