The Future of Antitrust: Is the Consumer Welfare Standard Still Up to the Task or Is It Time for a 'Better Deal'?

Published: Nov. 17, 2017, 10:32 p.m.

b'As an advisor to Woodrow Wilson, Louis Brandeis observed that “We can have democracy in this country, or we can have great wealth in the hands of a few, but we can\'t have both." Concerns about market concentration – with particular focus on the tech sector and such issues as use of, and access to, consumer data – have generated renewed interest in a Brandeisian approach, which has also found its way into the Democratic Party\'s “Better Deal." Has the time come for this New Brandeis Movement or is it merely, as others would have it, “hipster antitrust"? Should antitrust enforcement encompass such concerns as jobs, wages, data privacy, and viewpoint diversity in media, or is the consumer welfare standard\'s narrower focus on prices and consumer choice still appropriate? Would broadening antitrust\'s mandate raise rule of law concerns? And is this a genuinely new debate or is it a return to the familiar concern that “antitrust dosesn\'t fit the tech sector," which drove the George W. Bush era Antitrust Modernization Commission?

Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PC
Prof. Daniel Crane, Frederick Paul Furth Sr. Professor of Law, The University of Michigan Law School
Hon. Douglas H. Ginsburg, United States Court of Appeals, District of Columbia Circuit
Mr. Jonathan S. Kanter, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP
Mr. Barry C. Lynn, Executive Director, Open Markets Institute
Moderator: Hon. Brett Kavanaugh, United States Court of Appeals, District of Columbia Circuit'