Recently, much of my thinking has involved antitrust policy. Instead of imposing after-the-fact regulations on corporations, why not pass a new antitrust policy that limits the size to which companies can grow? Current antitrust law limits a variety of anticompetitive behaviors, like price fixing, and is focused on consumer welfare and market manipulation. But antitrust could become a tool for limiting size qua size, not just size when it becomes anticompetitive. It would require a major overhaul, but in the long term a size-based antitrust policy might actually be simpler than the complicated and often unworkable measures of market share and examinations of inchoate consumer needs.
Why? Because economies of scale, which work well for creating widgets, are very dangerous when it comes to influencing political decision-making. Political power amassed by concentrated financial power leads to serious distortions in political decision-making, so that Congress can pass absurd, non-responsive legislation that gives illogical copyright extensions, dangerous environmental licenses, and tax breaks to those who least need it. Antitrust law now limits anticompetitive behavior as between companies within an industry; it could limit corporate power in the political sphere by creating a default maximum size.
As Teddy Roosevelt said, "The great corporations ... are the creatures of the State." If these creatures are causing massive instability, inequality, or environmental ruin, then we ought modify them. Importantly, this is not an anti-corporate argument (to be anti-corporate actually buys into the reification of the corporation as it currently exists.) I happen to think corporations serve incredibly valuable social purposes. But those values are radically limited if we stop understanding the corporate form as deeply flexible, putty in our hands if we want it to be--a flexible tool for human, democratic, societal ends.
Law360 Interview with Acting Head of FTC's Consumer Protection Bureau Thomas Pahl - Here. Excerpt: In the area of national advertising, Pahl listed three priorities that indicate a return to a more traditional, conservative approach to law...
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