Untangling the Market and the State

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

See all articles by Wentong Zheng

Wentong Zheng

University of Florida Levin College of Law

Date Written: January 25, 2018


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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