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Market Structure and Political Law: A Taxonomy of Power

38 Pages Posted: 3 Sep 2014 Last revised: 9 Feb 2015

Zephyr Teachout

Fordham University School of Law

Lina Khan

Yale University - Law School

Date Written: August 15, 2014

Abstract

The goal of this Article is to create a way of seeing how market structure is innately political. It provides a taxonomy of ways in which large companies frequently exercise powers that possess the character of governance. Broadly, these exercises of power map onto three bodies of activity we generally assign to government: to set policy, to regulate markets, and to tax. We add a fourth category — which we call "dominance," after Brandeis — as a kind of catchall describing the other political impacts. The activities we outline will not always fit neatly into these categories, nor do all companies engage in all of these levels of power — that is not the point. The point is that Bank of America and Exxon govern our lives in a way that, say, the local ice cream store in your hometown does not. Explicitly understanding the power these companies wield as a form of political power expands the range of legal tools we should consider when setting policy around them.

Keywords: antitrust, public/private divide

Suggested Citation

Teachout, Zephyr and Khan, Lina, Market Structure and Political Law: A Taxonomy of Power (August 15, 2014). Duke Journal of Constitutional Law & Public Policy, Vol 9:1. Available at SSRN: https://ssrn.com/abstract=2490525 or http://dx.doi.org/10.2139/ssrn.2490525

Zephyr Teachout

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Lina Khan (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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