Top Department of Justice antitrust Assistant Attorney General Makan Delrahim has praise for liberal anti-monopoly activists for making the case that antitrust enforcement isn’t limited to considering only consumer welfare and the price of goods and services.
Delrahim said that the debate within antitrust legal circles generated by liberal “New Brandeis School” antitrust activists, also known as the “hipster antitrust” movement, has brought antitrust law — laws that promote competition and limit monopolies — into mainstream politics.
He referenced Lina Khan, legal counsel for the House subcommittee on antitrust, led by Democrat David Cicilline of Rhode Island, among other liberals who have argued that antitrust law enforcement has been lackluster and overly focused on consumer welfare and the price of goods.
“I think that it [Lina Khan’s research] has certainly created a good debate about the role of antitrust,” Delrahim told the Washington Examiner.
“So, if people are paying more attention to nonprice effects [of antitrust], that’s a great thing,” he said.
“Hipster antitrust” activists want to broaden the current definition of antitrust law to “promote a host of political economic ends — including our interests as workers, producers, entrepreneurs, and citizens,” Khan stated in a famous paper she wrote while she was a student at Yale Law School.
Delrahim, however, disagreed with the notion that the United States needs new antitrust laws or to overhaul existing laws, as many in the New Brandeis School movement have suggested.
“I think it’s wrong to bend antitrust to address other political social goals. But, as I’ve mentioned a couple of times, there’s areas that we can look at consistent with our basic principles that don’t have to do necessarily with price,” Delrahim said.
“It’s nice to hear that he thinks ideas matter, but they only matter if enforcers take it seriously,” said Matt Stoller, an antitrust expert and author of Goliath: The Hundred Year War Between Monopoly Power and Democracy. “He needs to act, he’s not an academic.”
Stoller has been part of the New Brandeis School of activists for many years and has been critical of the DOJ for not more aggressively preventing consolidation.
Delrahim said Stoller was entitled to his opinions but was wrong and “out there taking unnecessary criticism of the Justice Department’s work.”
Yet Delrahim also suggested that he was not fully in agreement with typical conservative thinking on the role of government in addressing monopolies. “There are some conservatives who think any enforcement of the antitrust laws is an interference of the marketplace and not consistent with conservative ideology. I reject that,” he said.
“Vigorous enforcement of the antitrust laws in a timely matter prevents the market [from failing],” he said.
Some antitrust scholars maintain that antitrust has always paid attention to elements of the marketplace other than just consumer welfare, such as innovation and creating a competitive environment.
“She [Lina Khan] actually misperceived that antitrust was so focused on price controls, which has been corrected by myself and other scholars,” said Tad Lipsky, a law school professor at George Mason University who served as the acting director of the Federal Trade Commission’s Bureau of Competition in the beginning of the Trump administration. “She started from a false premise, but still most antitrusters welcome the discussion.”
Others say that Khan and the New Brandeis School have correctly identified a social problem, but that it can’t necessarily be solved through antitrust law.
“Their theory of the problem is 100% correct, but the application of using antitrust to solve it is not right,” said Hal Singer, an antitrust expert and Georgetown University adjunct professor. “I sympathize with the harm. It warrants intervention, but we have to decide whether to use antitrust [law] or legislation.”
