Antitrust and the Rebound of Power: Reimagining Antitrust Cosmopolitanism
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Description
Giuliano Amato’s Antitrust and the Bounds of Power has not only weathered well; it frames the dilemma of the crisis of democracy that we face today. Private power is global and has not been significantly contained by either the forces of competition or antitrust law. Public power has been unmoored from the checks and balances of the institutions of governance and is flourishing without pushback from robust winds of competition. Professor Amato is exactly right that there are bounds beyond which private power must not go lest it trample on our freedoms and autonomy, and there are bounds beyond which public power must not go lest it trample on our freedoms and autonomy. And very unfortunately, both have exceeded their bounds. Professor Amato wrote his book in the late 1990s. This was before Big Tech/Big Data, before the new wave of populism and autocratic governments, before the demise of the competition agenda in the World Trade Organization (WTO) and the later crippling of the WTO, before the creation of the International Competition Network (ICN), before the COVID-19 pandemic, and before the rise in the US of the Neo-Brandeisian school to counter neoliberalism. He wrote elegantly of the growing capture of antitrust law by big business and laissez-faire philosophy, the increasing over-technicalisation of antitrust analysis, and the threat that this technocratic form of antitrust built (as it often is) on assumptions that markets work well, will replace a vision of markets backed by antitrust that yield a fair distribution of gains. He wrote of the need for a global competition framework to contain firms bigger than governments, and of the symbiosis of antitrust and democracy. This chapter will fill out the history since 1997. It will explain the undermining of the project for a world competition framework, the formation of the ICN as a roots-up alternative, the growth of Big Tech and its abuses, the increasing technicalisation of the antitrust law wrapped in a label of neutrality, the constant shrinking of US antitrust through Supreme Court doctrine, the increasing disconnect between the public’s conception of how antitrust should contain power and the reality, and the suspense at the moment of this writing as to whether the US Congress will revamp US antitrust to recognise new forms of power and abuses that need to be caught if we are to legitimate the market system. The chapter ends with a suggestion for approaching the problem of power and markets, and for an examination of how to reimagine the path towards antitrust coherence in the world.
Source Publication
Antitrust and the Bounds of Power—25 Years On
Source Editors/Authors
Oles Andriychuk
Publication Date
2023
Recommended Citation
Fox, Eleanor M., "Antitrust and the Rebound of Power: Reimagining Antitrust Cosmopolitanism" (2023). Faculty Chapters. 1208.
https://gretchen.law.nyu.edu/fac-chapt/1208
