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1 Rev. L & Econ. 1 (2005)

handle is hein.journals/rvleco1 and id is 1 raw text is: BRANDEIS AND HOLMES, BUSINESS AND ECONOMICS, THEN AND NOW RICHARD A. POSNER* U.S. Court ofAppeals for the Seventh Circuit; University of Chicago Law School This Article attempts to explain the views about business of Brandeis and Holmes. The Article analyzes why their economic thinking dffered as it did; to what extent it comports with a modern understanding of economics; and how Holmes and Brandeis could have been such close allies when their economic theories differed asfundamentaly as they did. Finaly, the Article addresses the consequences and current sgnficance of f any, the theories of Brandeis and Holmes, ith particular though not exclusive reference on the one hand to antitrust law and on the other hand to the current crisis of coporate governance. Although my main aim in writing this paper was to discuss Louis D. Brandeis's rather neglected views about business, I have found it impossible to think about his views separately from those of Oliver Wendell Holmes, his close ally on the Supreme Court; hence the dual focus of this paper. I shall try to explain what Brandeis's and Holmes's views about business were, and why they differed as they did; to what extent they comport with a modern understanding of economics; how Holmes and Brandeis could have been such close allies when their economic theories differed as fundamentally as they did; and what consequences and current significance, if any, their theories retain, with particular though not exclusive reference on the one hand to antitrust law and on the other hand to the current crisis of corporate governance. That is an ambitious agenda, and so my touch will in places be quite light. * Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School. An earlier version of this paper was given at a symposium entitled Brandeis on Business, at the International Business School of Brandeis University, on April 21, 2004.

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