Is Bigness Really Such a Curse?

21Aug12

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Illustration from Harper’s Weekly December 13, 1913 by Walter J. Enright, for Brandeis’ article Serve One Master Only!

Are not these huge trusts large contributing causes to these crimes–unintelligent expressions of social unrest? Is it not irony to speak of the equality of opportunity in a country cursed with their bigness?–Louis D. Brandeis, letter to Paul Kellogg, December 19, 1911.

Last year was the 100th anniversary of the Supreme Court’s decision in Standard Oil Co. v. U.S. (221 U.S. 1) which broke up the Standard Oil trust. In honor of the anniversary, the George Washington University Law School held the 100 Years of Standard Oil Symposium. A recent issue of the Southern California Law Review published the papers from the symposium and one of them heavily featured Brandeis.

University of Arizona College of Law professor Barak Orbach  and his colleague Grace Campbell Rebling discuss the influence of Brandeis and William O. Douglas on antitrust regulation in “The Antitrust Curse of Bigness,” 85 Southern California Law Review 605–655. Specifically, they take issue with the belief that size in itself makes a business uncompetitive–an idea central to Brandeis’ (and Douglas’) philosophy. Orbach and Rebling discuss how the rise of Standard Oil and other trusts of the late 1800’s led to the creation of the Sherman Act and several antitrust decisions of the Supreme Court. While Brandeis believed there were many causes of trusts and monopolies, he was especially concerned with how some businesses could become so big they they stifled competition in their fields. His famous phrase “the curse of bigness”–which started out as a chapter title in his book Other People’s Money, before becoming a title of another of his books–caught on with the public and became associated in many people’s eyes as the primary problem of trusts. Orbach and Rebling outline a number of economic theories that have grappled, unsuccessfully, with the size of trusts. Or, as they put it:

[Antitrust] discipline might owe its birth to the fear of size, but this fear has been a burden and a curse on the development of sound antitrust policies.

As an added bonus, the article is accompanied by a number of reproductions of illustrations from various magazines from the progressive era on the subject, like this the James Montgomery Flagg drawing seen on this page which is from the cover of one of the issues of Harper’s Weekly which featured a chapter from Other People’s Money.

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