Untangling the Market and the State

50 Pages Posted: 1 Feb 2018 Last revised: 12 Apr 2018

Wentong Zheng

University of Florida - Levin College of Law

Date Written: January 25, 2018

Abstract

The government plays increasingly active and diversified roles in the modern economy. How to draw the boundary between the market and the state has emerged as a contentious issue in various areas of law, including constitutional law, antitrust, and international trade. This Article surveys and critiques the law’s current approaches to the market-versus-state divide, embodied in four tests based on ownership, control, function, and role, respectively. This Article proposes an alternative market-versus-state test based on the nature of the power being exercised in the challenged action. This power-based test not only better distinguishes between the market and the state, but also illuminates why the market-versus-state distinction needs to be made in the first place. Applying this power-based test would bring much needed logic and clarity to many market-versus-state issues in various legal contexts.

Suggested Citation

Zheng, Wentong, Untangling the Market and the State (January 25, 2018). 67 Emory Law Journal 243 (2017); University of Florida Levin College of Law Research Paper No. 18-8. Available at SSRN: https://ssrn.com/abstract=3109205 or http://dx.doi.org/10.2139/ssrn.3109205

Wentong Zheng (Contact Author)

University of Florida - Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0936 (Phone)

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