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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