Putting antitrust and Marxism side by side is, on its face, a peculiar endeavor. It is akin not to comparing the proverbial apples to oranges but comparing apples to the cuisine of China. Antitrust reformers set themselves comparatively modest goals, embracing one set of legal tools for advancing justice, whereas Marxists entertain extraordinary ambitions, seeking to offer a foundational theory of history and the state of the world today. One has intellectual roots in American pragmatism and the efforts of institutionalist economists and legal realists to restructure the political economy through statutes and regulations, the other in Hegelian philosophy.
Yet whatever the limits of the comparison, the LPE series on the subject has been illuminating and stimulating. It has highlighted important political and theoretical divides on the left, while raising important questions about the promise and perils of legal reform. My sense, however, is that the disagreement between the antitrusters (Paul and Steinbaum) and the Marxists (Winant and Dimick) is due, at least in part, to differing understandings of the project of antitrust reform—what it aims to do, where it should be situated with respect to other legal fields, and how it relates to broader political movements. In the following post, I’ll address each of these questions, identifying rival views that one might take on the issue. These binaries are not hard and fast and instead exist along a continuum. Nonetheless, they are helpful in clarifying the debate, and, I hope, in showing how antitrust law can be an instrument for democratizing economic life.
The What of Antitrust Reform
What is the animating goal of antitrust reform? While there are several answers one might offer to this question, two are relevant to this discussion.
The most prominent current antitrust reform effort is focused on concerns about corporate size, both in absolute (assets and revenues) and relative (market share and concentration) ways. Corporate bigness translates to awesome power over workers, consumers, suppliers, competitors, and citizens. Concentration in markets and economywide means higher prices, lower wages, and the erosion of democratic governance as the controlling shareholders and executives of dominant and large firms use their power to advance their private interests. This project, inspired by Louis Brandeis’s essay The Curse of Bigness, seeks to break up monopolies and oligopolies and disperse control to smaller enterprises that are seen as more conducive to prosperity and democratic flourishing.
A second reform effort is centered on business practices, or what Paul distills as the questions of competition and coordination. This effort begins from the idea that competition is not, contra Winant, an “internal law of the capitalist system” but a social process structured by statutory, regulatory, and judge-made law and custom. Law has profound effects on capitalist behavior and economic life. For example, after the Supreme Court ruled in the 1890s that price-fixing between rivals was illegal but that most corporate consolidation was beyond the reach of the federal Sherman Act, businesses undertook a frenzy of merger activity. By 1904, an estimated 1,800 firms had disappeared, and firms such as DuPont, Eastman Kodak, and International Harvester had obtained monopolistic control in key markets.
Building on Paul’s contribution, the quality of competition matters, and the law plays a significant role in determining competition’s quality. First, law determines whether firms may acquire and maintain market dominance through mergers, with below-cost pricing, and by flouting laws of general application. If law restricts these practices, it pressures firms to grow and succeed by fair treatment of trading partners, investment in new products and production methods, and research and development. Whereas Dimick claims that the methods of business growth are of little importance to working people, the difference between internal expansion (building new capacity and hiring more workers) and mergers and acquisitions (often resulting in massive layoffs and higher prices) suggests that the distinction should matter to people as both wage earners and consumers. Second, law determines who gets to manage collective economic activity. Do holding companies and franchise systems featuring hierarchical control get a pass while horizontal associations of independent workers and businesses do not? To be sure, this strain of antitrust, which can claim inspiration from Louis Brandeis’s writings as an advocate and Supreme Court justice, is not indifferent to corporate size, but the primary focus is on the path to and structure of bigness.
The distinction between these two strands of antitrust reform is not merely of academic interest. A focus on size means preventing OpenAI, Anthropic, Microsoft, and Google from dominating the market for large language models and ensuring opportunities for small and medium-sized firms. The principal concern is that these dominant firms will control the market at the expense of rivals and users. An approach that emphasizes business practices, by contrast, takes issue with the basic business of LLMs. The fundamental question is not whether there are too few firms but whether the existing firms are thriving at the expense of competitors like authors, artists, and newspapers by training their models on their copyrighted works and, thereby, infringing them. This latter view, articulated in lawsuits against LLM developers, received important validation from the Copyright Office in May in a report that concluded that some uses of copyrighted content by LLMs are likely not entitled to fair use protection.
Where to Situate Antitrust
A second critical divide concerns how to conceptualize antitrust in relation to other fields. Is antitrust reform its own thing or part of a broader project to better regulate business conduct?
One camp presents antitrust as an alternative to direct regulation. I read Winant and Dimick as responding to this view and contending that antitrust depoliticizes important questions about economic life. According to this perspective, antitrust law protects the “competitive process” and, if done right, serves as at least a partial substitute for rules on pricing and conduct. This position is articulated by some members of both the antitrust establishment and reform camp. For instance, then-Judge Stephen Breyer, in a 1990 decision for the First Circuit, contrasted antitrust with regulation and characterized them as substitutes. From this angle, controlling business power through antitrust reduces the need to regulate a firm’s practices.
An alternative perspective treats antitrust as one component of a larger set of laws to structure economic life. Antitrust is a complement and sometimes even a precursor to effective application of labor, securities, consumer protection, and corporate law, as the government seeks to redistribute power downward and channel business practices in more socially beneficial directions. For instance, breaking up dominant digital platforms and outlawing surveillance advertising are complementary. More generally, the Federal Trade Commission, Department of Labor, and Securities and Exchange Commission can work together to pressure businesses to prioritize the development of new products and production techniques over mergers and acquisitions, stock buybacks, and wage theft. From this vantage point, treating antitrust law as separate from other forms of business regulation is untenable because antitrust also regulates firm behavior. What stands out about American antitrust law is that the bulk of regulation is done through lawsuits in federal court instead of more commonly used administrative methods.
To see why antitrust can’t operate on its own, consider two restructurings of the energy sector in the first half of the twentieth century. First, in 1911, a government lawsuit against Standard Oil broke up the company into constituent parts, which include today’s ExxonMobil and Chevron. Ruling that the company had illegally acquired and maintained a multi-decade monopoly in oil refining and marketing, the Supreme Court split up Standard Oil up into nearly three dozen separate entities. However, the decision did little to remedy the collective dominance of the firm’s shareholders over the constituent firms. As a result, the same financial interests continued to control the industry.
The second restructuring came in the 1930s and 40s, when Congress and the Roosevelt and Truman administrations broke up the holding companies that dominated the power industry. The Securities and Exchange Commission administered the Public Utility Holding Company Act (PUHCA) of 1935 to dissolve holding companies that owned utility systems scattered across the country. Congress and the SEC did not target size as such but size that had no engineering or operational logic: A holding company that owned utilities in Washington State and Florida could not plausibly argue this common ownership helped provide more affordable or reliable service.
PUHCA, however, was not a standalone reform. It complemented a major expansion of public investment and ownership in the power sector that helped deliver universal electric modernization. The federal government built and operated hydroelectric dams on rivers such as the Columbia and Tennessee and funded rural electric cooperatives to bring light and power to the countryside. Situated in the sectoral reforms of the decade, PUHCA was part of a more comprehensive program to restrict the power of financial interests and expand public control over the power industry. Illustrating the point, the SEC’s administration of PUHCA facilitated the transfer of utility systems from holding company control to local public ownership in places like Omaha and San Antonio.
Contrary to the concerns raised by Winant and Dimick, then, this history shows how antitrust has proven compatible with broader regulatory programs and has served as a tool for achieving thicker normative goals (like advancing distributional justice and increasing democratic participation in economic life).
How to Reform Antitrust
Antitrust reform projects today are united by a rejection of a strongly deterministic view of history. The view of reformers is probably closer to what Marx himself said: “Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.” Recognizing the “play in the joints” and the possibility of political action delivering a better society, the how of antitrust reform can be conceptualized in one of two ways: as a top-down, primarily elite-driven project, or as a legal tool for political movements to restructure American economic life. While some leftist critics express doubts about the viability of any legal reform project, I believe there is reason for measured optimism.
The first approach prioritizes the dictum that “personnel is policy.” Appointing strong leaders to agencies like the Department of Justice Antitrust Division, Federal Trade Commission, and Consumer Financial Protection Bureau is seen as the foremost way to achieve progress. These officials can use the statutory powers of these agencies, which are often substantial, to crack down on unfair corporate practices and build a more just economy. Capable lawyers and economists are front and center in this project and can lead the legal and political fight against powerful corporations who have armies of experts on their side and supporters in all three branches of government. In a sense, the vision is to run the Chicago School playbook in reverse: remake the law through strategic appointments.
The second approach treats antitrust law as an important tool for movements seeking to advance a just economy. For example, unions can use antitrust to put pressure on hostile employers and to prevent firms like Amazon and Uber from misclassifying their workers and exercising control without responsibility. Tenants can obtain lower rents by supporting lawsuits against landlords that use algorithms to collude and raise rents. Expertise in law and economics is important: drafting strong complaints and developing new regulatory ideas requires craftsmanship, knowledge, and imagination. Credentialed experts, however, are embedded in larger fights. Personnel can be policy, but popular movements must capture power from the wealthy and big businesses interests to make law a durable instrument of freedom.
The golden age of antitrust in the mid-twentieth century reflected an elite accord. Leaders at the DOJ and the FTC and sympathetic justices on the Supreme Court supported vigorous checks on corporate power through anti–merger and anti-monopolization law. The Court enabled and empowered antitrust enforcers to crack down on mergers of all kinds and restrict domination of weaker parties by stronger ones.
Yet, the end of this era in the 1970s exposed the weakness of what historian Richard Hofstadter called “antitrust prosecutions without an antitrust movement.” Although antitrust was the stuff of popular politics in the late 19th and early 20th centuries, it was not during the era of aggressive antimonopoly enforcement in the 1950s and 60s. As a result, this technocratic consensus proved to be fragile and vulnerable to big business mobilization. The Supreme Court, with five new justices appointed by Presidents Nixon and Ford, initiated a break with the postwar consensus in the 1970s, and the federal antitrust agencies followed soon after. The law was reconstructed with hardly any public input or opposition.
Treating the Chicago School victory as a purely technocratic project would be a mistake, however. While the Chicago School did not have popular support, it did have organized money backing and promoting it. It was part of a powerful political movement to overthrow the New Deal and the incipient efforts to build social democracy in the United States. Indeed, Lewis Powell, Southern corporate lawyer, author of the famous Powell Memo, and one of Richard Nixon’s four appointments to the Supreme Court, was determined to lift antitrust controls on big businesses as an advocate and jurist.
Progressive antitrust has been in the air for the past decade and made some important headway under the Biden administration. With national progress on hold for at least a few years, taking stock of the accomplishments and potential of antitrust reform feels timely. This series has been generative in highlighting important political and theoretical divides on the left and for showing that the project to remake antitrust itself is not a monolith. Reconstructed antitrust, especially when paired with strong regulation on labor, corporate, securities, consumer protection, and related issues, can channel business competition in more socially beneficial directions, check domination in economic life, and create space for more democratic alternatives to for-profit corporations. To make such victories lasting, however, we need to pair them with broader popular political movements and a compelling vision of a just economy.
