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Foster, Chase and Thelen, Kathleen (2023) 'Brandeis in Brussels? Bureaucratic discretion, social learning, and the development of regulated competition in the European Union.' Regulation and Governance. (Forthcoming)

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Abstract

Neo‐Brandeisian legal scholars have recently revived the ideas of Supreme Court Justice Louis Brandeis, who championed state regulation that preserved market competition and economic liberty in the face of concentrated private power. Yet ultimately and perhaps paradoxically, it has been Europe and not the United States that has proved more hospitable to accommodating key features of the Brandeisian approach. We explain this outcome by tracing the evolution of EU competition law to gain insight into the social learning processes through which such regimes change over time. We argue that the EU's administrative system, which provides the European Commission with significant bureaucratic discretion, has facilitated processes of ongoing deliberative adjustment to policy and practice, which over time has resulted in a system of “regulated competition” with striking similarities to the Brandeisian vision. The analysis highlights how administrative law institutions condition how regulatory regimes evolve in response to acquired experience and knowledge.

Item Type: Journal Article
Keywords: American antitrust, Brandeis, competition policy, EU, Europe, policy learning, progressive era.
SOAS Departments & Centres: Departments and Subunits > School of Finance & Management
ISSN: 17485983
DOI (Digital Object Identifier): https://doi.org/10.1111/rego.12570
SWORD Depositor: JISC Publications Router
Date Deposited: 10 Dec 2023 08:59
URI: https://eprints.soas.ac.uk/id/eprint/41088

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