Thoughtful Competition Law: Power and Reflexivity
摘要
What does it truly mean for a legal practitioner or scholar to engage in competition law, beyond merely applying existing rules? Outside competition law circles, a simple argument has been drawing increasing support: competition jurists maintain a socially constructed power structure. Professor Katarina Pistor argues that property, contracts, and trust laws are subverted by attorneys to generate private wealth, entrench a capitalistic system, and promote inequality. She adds that public rules of antitrust or taxation do little to correct the problem: Arguments about the social construction of competition law reach beyond the academy. The rise of a neo-Brandeisian school of competition policy in the US is a clear sign of practical impact. With its focus on corporate bigness, neo-Brandeisianism is distinct from Pistor’s argument. However, neo-Brandeisianism also advances a power structure narrative. Large firms, their attorneys, lobbyists, and hired academics are said to control not just markets, but also politics.