Posted by Social Science Research Network
By Sanjukta Paul (Wayne State University)
It is conventionally understood that the purpose of antitrust law is to promote competition. Much more fundamentally, however, antitrust law allocates coordination rights. In particular, our current antitrust framework authorizes large, powerful firms as the primary mechanisms of economic and market coordination.
Still, the notion that antitrust exists to promote competition has been critical for maintaining its particular allocation of coordination rights. The pro-competition norm has been deployed to purge other normative benchmarks from antitrust analysis, which would if revived pose challenges to the status quo allocation. And of course, the pro-competition norm has served to undermine other coordination mechanisms—such as workers’ organizations, “cartels,” and the public coordination of markets.
Yet for its preferred coordination mechanism—the business firm—the current antitrust framework relies upon reasons that have nothing to do with promoting competition, even as it bars the consideration of similarly extrinsic reasons for any other form of economic coordination. This paper traces the appearance of this legal preference, reveals its logical content, and argues that its justification is far less certain than assumed. In particular, I explain why antitrust’s “firm exemption” is a specific policy choice that cannot be derived from corporate law, nor from contracts, nor even from property.
Indeed, because antitrust has effectively established a state monopoly on the allocation of coordination rights, we ought to view coordination rights as a public resource, to be allocated and regulated in the public interest rather than for the pursuit of only private ends. Intra-firm coordination is conventionally viewed as entirely private, buoyed up by the contractarian theory of the firm. But the contractarian view of the firm cannot explain antitrust’s firm exemption, and is indeed inconsistent with the conventional justifications for it. The paper also briefly sketches some of the policy directions that will flow from the recognition that coordination rights are a public resource, focusing upon expanding the right to engage in horizontal coordination beyond firm boundaries.