Powerless Antitrust

Abstract

Antitrust has been doubly disempowered: we can no longer effectively regulate corporate power and many forms of corporate power are now irrelevant to antitrust analysis. Drawing on the interconnected histories of antitrust and corporate law, this article makes the case for empowering corporate regulators by taking a broader view of corporate power and by challenging not just anticompetitive harm but corporate power itself. The social and environmental vulnerabilities and concerns that are of paramount importance now but which currently fall between the interstices of the regulatory regime should instead be caught by antitrust. This new framework for antitrust builds on the historical models by creating dual and mutually reinforcing roles for the competition regulators and a new corporations regulator.

Keywords: antitrust, competition law, corporate law, power, economic regulation, antitrust remedies, corporate governance, stakeholder capitalism, stakeholder remedies, corporate dissolution, stakeholder antitrust

JEL Classification: K21, K20, K22, K23, K29, L40, L41, L42, L43, L44, L49