These are boom times for antitrust lawyers. Not only is the volume of high-paying work exploding. On March 21, the Department of Justice added Apple Inc. to the list of tech giants that are under scrutiny (the DoJ is already investigating Alphabet Inc. and the Federal Trade Commission is investigating Amazon.com Inc. and Meta Platforms). Then on March 25, the European Union announced that it is investigating three of the four, Apple, Alphabet and Meta. The work also touches on the most profound questions of what monopoly means in an economy that’s increasingly based on information rather than physical stuff.

The debate is particularly interesting in America because it involves, in effect, a belated clash between two of the greatest legal minds of the 20th century. Louis Brandeis dubbed himself “the people’s lawyer” and exercised a profound influence over both Woodrow Wilson and Franklin Delano Roosevelt. He was appointed to the Supreme Court in 1916 after a furious battle and remained there until 1939. Robert Bork was a conservative Republican who thrived under both Richard Nixon and Ronald Reagan. He was turned down for a seat on the Supreme Court in 1987 after an even more furious battle that gave U.S. politics a new verb (“to Bork”) and provided a foretaste of antagonisms to come.

Brandeis’ theory of antitrust was summed up in the title of his 1934 book, "The Curse of Bigness." He believed that “bigness” is a problem whether economic harm can be proved or not. He also believed that the job of antitrust goes beyond economics: to promote democracy rather than to promote economic growth or well-being. “We may have democracy, or we may have wealth concentrated in the hands of a few,” he said in one of his most quoted aphorisms, “but we can’t have both.” There is a touch of crusading populism about this: Brandeis spent much of his legal career defending small companies against their big rivals. But there is also a considered philosophy of liberalism that he shared with Woodrow Wilson: He believed that the health of a liberal society depended on the dispersal of power among a wide range of different power centers.

Bork’s theory of antitrust depends, by contrast, on a strict view of consumer welfare. The only question that matters is an economic one: Does the concentration of power in a single company harm the consumer? Everything else is just political agitation. In "The Antitrust Paradox" (1978), he criticized Brandeis for distorting antitrust thinking in the pursuit of political objectives. Proper antitrust theory, he argued, should be based on rigorous economic principles rather than airy-fairy visions of a good society. He also warned that government is a blunt instrument that can easily do more harm than good. Not all big companies are bad: Some can produce world-changing economic breakthroughs through a combination of economic might and ambition. And if they are bad then the market can usually be relied on to get rid of them.

Bork’s arguments rapidly swept aside Brandeis’ partly because Bork was in tune with the free-market mood in Washington and partly because he was a member of a broader Chicago School that advanced on several fronts at once. By the 40th anniversary of its publication, "The Antitrust Paradox" had been cited in more than 150 federal court rulings, including 18 Supreme Court opinions by 10 different justices. A vivid example of Bork’s triumph came in the 2003 Supreme Court case of Verizon Communications Inc. v. Trinco when the communications company was accused of “exclusionary conduct” for refusing to give rivals access to its network infrastructure. The court rejected the claim, and Bork’s protege Antonin Scalia wrote in the ruling that “the mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system.” Both Ruth Bader Ginsburg and Stephen Breyer sided with Scalia.

This was the nadir of Brandeis’ influence on antitrust. But over the last few years “the people’s attorney” has been making a comeback, first in law schools and then, after President Joe Biden took office in 2021, in Washington. The U.S. federal antitrust apparatus is now dominated by Brandeis disciples who believe that the winner-take-all platforms of Google, Amazon, Facebook, and Apple are reminiscent of the interlocked trusts in railroads, steelmaking, oil refining and banking that first inspired Brandeis.

Lina Khan, the head of the FTC, first made her name with a law review article entitled “The New Brandeis Movement: America’s Antimonopoly Debate.” Jonathan Kanter, the head of the DoJ antitrust division, is cut from the same ideological cloth. When his department secured an additional $50 million to investigate monopolies, break up cartels and block mergers in late 2021, he celebrated with a prop of a giant check made out to “Break ’Em Up.”

The Apple case provides a vivid example of the two contrasting views of antitrust. View the case through Bork’s eyes and it is nonsense. Apple’s market share in phones is a little over 50% in the U.S. and 25% globally; few other companies have such devoted customers. Is it worth disrupting one of America’s great innovation machines on the footling grounds that Android smart phones are “discriminated against” when they communicate with Apple iPhones?

View the case through Brandeis’ eyes and Apple is a prime example of “the curse of bigness.” Apple is a new-economy giant that creates an “ecosystem” of smaller companies that are dependent on it. Customers can’t go outside this ecosystem to buy cheaper add-ons. Rival iPhones can’t enter the walled garden without suffering “social stigma”: videos sent from Android phones to the iPhone appear grainy and messages from Android phones appear in “green bubbles,” if they appear at all. In effect, the DoJ charges that Apple makes its phones better by making rival phones worse.

The DoJ will find it hard to win this case. Apple can argue that it faces intense competition from both Google’s Android phone and from Samsung, and that it limits the iPhone ecosystem to protect the users’ privacy and security. Many tech pundits regard the case as weak. The veteran tech journalist Walt Mossberg scoffs that “calling Apple a ‘monopoly’ in phones is laughable.” “The DOJ acts as if there’s a right for competitors to use iMessage tech, which is proprietary to Apple. But since when must companies do such a thing?” Bloomberg Opinion’s Dave Lee argues that forcing Apple to open up to competition in the way the DoJ wants will make iPhones worse without noticeably advancing the public good. Converting judges raised on a diet of Bork will take more than vague talk about “social stigma” and “green bubbles.”

I nevertheless predict that Brandeis will prevail in the longer term. In the age of information capitalism, Brandeis’ worries about concentration are more relevant than Bork’s light-touch approach. IT companies tend toward market domination because they thrive on network effects (the more customers you have, the more valuable you are). Platform companies change the nature of markets because they have two very different sets of customers: Facebook and Google can afford to provide free services to consumers because they can charge exorbitant prices to their “real” customers, advertisers. Platform companies also change the nature of “rent-collecting”: By turning your iPhone into an indispensable device that you use to pay for train tickets or listen to music or consult the internet, they can exact a toll on every daily transaction that you make. You can always opt out ditching your iPhone or giving up on Google. But the price of exit is exceedingly high.

The IT market already has all the signs of high concentration. IT companies enjoy “shares of mind” that are even bigger than their shares of market: Google is a verb as well as a company’s name. They reinforce their dominance by buying up potential rivals often for exorbitant sums of money: In the decade to 2019, the five largest technology firms made some 400 acquisitions with scant intervention from the competition authorities. But market valuations suggest that this concentration will increase substantially, reaching the sort of levels that Standard Oil and Carnegie Steel reached when they were broken up. Bork might argue against assuming that such a concentrated market will slow down innovation. But let’s remember that he criticized the idea of breaking up AT&T. When that finally happened in 1984, it not only benefited consumers but also helped to create a much more innovative information economy.

Brandeis’ belief that concentration is about political power as well as economic power is also more relevant today than Bork’s narrow focus on economic utility. Americans of all political persuasions worry that concentrated interest groups such as big business and big donors have captured the political system: hence the low level of trust in Congress and the periodic surges of support for anti-establishment candidates such as Bernie Sanders and Donald Trump. Washington’s new generation of trustbusters has attracted some surprising supporters in the Republican caucus despite Washington’s poisonous divisions: three hardline conservative senators, J. D. Vance, Josh Hawley and Mike Braun have declared themselves fans of Lina Khan. It’s easy to see a future Republican administration preserving Democratic antitrust measures just as the Biden administration has preserved Trump’s protectionist measures against China.

The only problem with the cult of Brandeis is that it understates how broad-based the case for antitrust legislation was in the late 19th and early 20th centuries. The antitrust movement that produced the Sherman Act (1890) and a succession of antitrust cases thereafter was inspired by an all-enveloping sense of angst about the country’s future.

These worries were partly economic: Trust-busters went after Carnegie Steel and Standard Oil precisely because they were so good at what they did, using economies of scale and internal efficiencies to drive competitors out of business and forestall future competition. But the trust-busters were also political. Teddy Roosevelt waged war on the trusts not just because they threatened competition but also because they threatened to create a new business aristocracy that would drain America’s pioneering spirit. Woodrow Wilson, Brandeis’ patron, took up TR’s baton because he thought that liberty required the dispersal of power. Today’s neo-Brandeisians might look like dangerous rebels against the established orthodoxy of Bork. But they are in fact heirs to a broad tradition that created the U.S. antitrust movement in the first place and produced its earliest triumphs.

(Adrian Wooldridge is the global business columnist for Bloomberg Opinion. A former writer at the Economist, he is author of “The Aristocracy of Talent: How Meritocracy Made the Modern World.”)

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