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Democratic and Republican administrations and the Supreme Court, in implementing antitrust law as “a consumer welfare prescription” over the past 40 years, reached a consensus on two important issues. First, antitrust enforcers and courts have presumed that corporate mergers generally advance, or at least do not threaten, consumer welfare. Second, enforcers and courts have treated horizontal collusion, among both big and small actors, as the principal evil for antitrust enforcers to root out. This deference to the consolidation of business property and hostility to horizontal agreements have concentrated power in the economy among a small elite.For antitrust law to redistribute power downward, a radical philosophical change is necessary. First, antitrust law should tightly restrict the consolidation of corporate property. Second, policymakers should recognize that collusion among powerless actors can represent socially desirable cooperation. Reconstructing antitrust law in this manner would transfer power in markets away from corporate executives and financial interests to workers, professionals, and small firms.

Employers have used non-compete clauses to deprive tens of millions of workers of the freedom to change jobs or start their own businesses. In occupations ranging from home health aide to journalist to sandwich shop worker, employers have used this legal power to their great benefit. Non-compete clauses reduce worker mobility, help employers keep wages and wage growth down, deter small business formation, entrench potentially abusive, discriminatory, or hostile work environments, and fortify market power to the detriment of workers, rivals, consumers, and broader society. The justifications for non-compete clauses are unpersuasive. While employers and their advocates argue that they are necessary to protect investment in workers, such as trade secrets and training, there are at least four reasons to reject that reasoning. First, a broad dissemination of information across firms is often good for society. Second, non-competes are onerous for workers and a flawed means of protecting intangibles. Third, other measures, such as trade secret law and employment contracts, are more effective at protecting trade secrets and other intangibles and are much less restrictive for workers. Fourth, non-competes run afoul of moral and social values and goals such as autonomy and a fair distribution of power. Non-competes are merely one example of abusive contractual terms that the legal system has condoned or tolerated. Other terms—such as mandatory arbitration, class action waivers, confessions of judgment, and unilateral modification—reflect a ubiquitous economic and political problem. Corporations use these contractual terms to unilaterally rob consumers, suppliers, and workers of a wide range of constitutional and statutory rights. Like non-competes, these contractual terms are often established in an environment of radical inequality between a corporation and a worker, consumer, or small business and are often contingent and non-salient to the person or entity who must accept them. The result of contracts of dispossession is the loss of legal recourse for wrongdoing, loss of possessions, and the imposition of unaccountable private governments. Congress should pursue a comprehensive legislative solution for contracts of dispossession. First, Congress should enact a law banning these contracts of dispossession. Second, Congress should delegate authority to a federal agency to identify and outlaw novel contracts of dispossession in the future. These legislative reforms would remake contract law to liberate workers, consumers, and small businesses from the private rule of corporations. [ABSTRACT FROM AUTHOR]

The Politics of Food Supply: U.S. Agricultural Policy in the World Economy. By Bill Winders. USA: Yale University Press. Pp. 304. Since the time of the New Deal, the agricultural [...]

After decades of neglect, antitrust is once again a topic of public debate. Proponents of reviving antitrust have called for abandoning the narrow consumer welfare objective and embracing a broader set of objectives. One essential element that has been overlooked thus far is the ownership structure of the firm itself. The dominant model of investorowned business and associated philosophy of shareholder wealth maximization exacerbate the pernicious effects of market power. In contrast, cooperative ownership models can mitigate the effects of monopoly and oligopoly, as well as advance the interests of consumers, workers, small business owners, and citizens. The promotion of fair competition among large firms should be paired with support for democratic cooperation within firms. Antitrust law has had a complicated history and relationship with cooperative enterprise. Corporations threatened by cooperatives have used the antitrust laws to frustrate the growth of these alternative businesses. To insulate cooperatives from the antitrust threat, Congress has enacted exemptions to protect cooperative entities, notably a general immunity for farm cooperatives in the 1922 Capper-Volstead Act. As part of an agenda to tame corporate monopoly, all three branches of the federal government and the states should revisit these ideas and seek to protect and enable the cooperative model across the economy. Although protections that farmers fought for a century ago may seem obsolete in an era of big-box retail and online platforms, matters of ownership design have at least as much relevance today and should be a part of the antimonopoly arsenal. [ABSTRACT FROM AUTHOR]

The antitrust laws, as they are presently interpreted, are incapable of blocking most of the very largest corporate mergers. They successfully blocked only three of the seventy-eight largest finalized mergers and acquisitions (defined as the acquired firm being valued at more than $10 billion) that occurred between 2015 and 2019. The antitrust laws also would permit the first trillion-dollar corporation, Apple, to merge with the previously third largest corporation, Exxon/Mobil. In fact, today every U.S. corporation could merge until just ten were left--so long as each owned only 10% of every relevant market. Even though the Congresses that enacted the anti-merger laws did so, among other aims, to limit the political power of corporations, today the federal antitrust agencies and courts interpret these laws only in terms of price and other economic effects within discrete markets. Under current merger practice, the enhanced political power of corporations is irrelevant. However, from Senators Elizabeth Warren and Bernie Sanders on the left, to President Trump and many others on the right, there is a renewed interest in using antitrust to control corporate size, structure, and practices. There is popular desire both to prevent large mergers and to break up existing companies, such as Facebook and Google, that achieved their dominant positions in part due to acquisitions. In light of recent developments within most of the political spectrum, this Article proposes model conglomerate merger legislation suitable for our era. This legislation would target every merger that exceeds clearly specified asset thresholds. We are proposing a law that would block every merger in which both firms have assets exceeding $10 billion, unless they spin-off assets so that their increase in size falls below this figure. This threshold would block at most approximately fifteen to twenty-five of the largest mergers each year. This Article undertakes a legal, economic, and political analysis of conglomerate merger legislation. This demonstrates that our proposed legislation would: (1) Produce no significant losses in corporate efficiency; (2) Be clearer and more predictable than the existing anti-merger laws and thus would enhance the rule of law; and (3) Help prevent significant increases in corporate political power and other forms of non-economic power caused by the largest mergers. [ABSTRACT FROM AUTHOR]

After decades of neglect, antitrust is once again a topic of public debate. Proponents of reviving antitrust have called for abandoning the narrow consumer welfare objective and embracing a broader set of objectives. One essential element that has been overlooked thus far is the ownership structure of the firm itself. The dominant model of investorowned business and associated philosophy of shareholder wealth maximization exacerbate the pernicious effects of market power. In contrast, cooperative ownership models can mitigate the effects of monopoly and oligopoly, as well as advance the interests of consumers, workers, small business owners, and citizens. The promotion of fair competition among large firms should be paired with support for democratic cooperation within firms. Antitrust law has had a complicated history and relationship with cooperative enterprise. Corporations threatened by cooperatives have used the antitrust laws to frustrate the growth of these alternative businesses. To insulate cooperatives from the antitrust threat, Congress has enacted exemptions to protect cooperative entities, notably a general immunity for farm cooperatives in the 1922 Capper-Volstead Act. As part of an agenda to tame corporate monopoly, all three branches of the federal government and the states should revisit these ideas and seek to protect and enable the cooperative model across the economy. Although protections that farmers fought for a century ago may seem obsolete in an era of big-box retail and online platforms, matters of ownership design have at least as much relevance today and should be a part of the antimonopoly arsenal. [ABSTRACT FROM AUTHOR]

The article focuses on the issues surrounding economic inequality in the U.S., and discusses the ways for combatting the same. Topics discussed include impact of market power on economic inequality; relationship between economic power and political power; and enactment of antitrust laws by the U.S. Congress for offering specific policy prescriptions.

The article discusses what the author refers to as the lessons that the U.S. Court of Appeals for the Eleventh Circuit's ruling in the 2015 domestic iron pipefitting industry monopolization case McWane Inc. v. Federal Trade Commission (FTC) can teach people about the public and private economic power in America's markets. U.S. government restraints on competition are examined, along with government regulations, a Great Recession in the 21st century, and emerging industries.

The United States and Europe have traditionally taken very different approaches to the regidation of harmful conduct. Previously, European nations relied almost entirely on the public enforcement of laws, whereas the United States relied on a mix of public and private actors. In the United States, private rights of action have played a central role deterring illegal conduct--and, in fact, provided greater deterrence than public enforcers in some areas of law. They have also allowed injured parties to obtain compensation. Despite their very different histories, the private enforcement systems in the United Slates and Europe are showing signs of convergence today. Since the 1970s, industry in the United States has waged a potent public relations campaign against private rights of action. This pro-business crusade has depicted corporations as victims of a litigation explosion and cast plaintiffs and their attorneys as unscrupulous mercenaries. This narrative has little, if any, empirical support. Nonetheless, based on this mythology, the Supreme Court and other federal courts have erected a number of procedural obstacles to effective private enforcement of law. While private enforcement is in retreat in the United States, the European Union seeks to strengthen private rights of action, with an emphasis on private enforcement of antitrust law. Recent EU initiatives established some of the foundations for private parties to protect their rights in court. European policymakers, however, have as yet declined to establish effective claims' aggregation and litigation funding mechanisms, citing the business victimhood mythology' spread by private industry in the United States. Encouragingly, a few EU Member States have rejected this paradigm and established some of the elements of strong private rights of action. In particular, Denmark, the Netherlands, Portugal, and the United Kingdom have passed laws that are likely to foster effective private litigation. A comparative analysis of enforcement institutions on both sides of the Atlantic reveals a complex picture. American and European consumers, workers, and other large groups will generally face major obstacles to vindicating their rights. In cases generating larger individual claims, American and European plaintiffs ' lawyers may still be able to use aggregate settlement procedures to hold corporate defendants to account. When understanding its contribution to the deterrence of harmful conduct, private enforcement has to be viewed together with public enforcement. Because much of the enhancement of private enforcement in the European Union arises in the context of antitrust, it is an area ripe for cross-continent examination. With antitrust, the overall enforcement landscapes in the United States and European Union will likely be drastically different in the medium term. Due to limited public enforcement, a decrease in private lawsuits will severely compromise overall antitrust enforcement in the United States. In Europe, strong public enforcement will offset generally weak private enforcement and result in far more effective protection of consumer rights. [ABSTRACT FROM AUTHOR]

The article offers information on the efforts of the U.S. Supreme Court in the articulation of effective anti-trust laws in the era of 1890-1930 for preserving the commercial viability and freedom of small businesses under the provisions of the Sherman Act in 1890. It informs that the Supremme Court was reflected concern for consumer welfare by prohibiting cartels and monopolies but also committed to protection of small businesses by focusing on benefits of scale economies.

In the twenty-first century, the electric power industry is becoming increasingly regional in geographic scope. Due to the creation of wholesale power markets and the development of renewable energy resources, greater quantities of power flow across state lines today than at any time in the history of the industry. With this growth in the interstate trade in power, expanding the transmission grid can yield significant regional benefits. New transmission lines can enhance system reliability, produce lower and more stable power prices, and improve the environment on a local and global scale. While the benefits of new transmission are broadly shared, the costs of new transmission--both economic and non-economic--tend to be concentrated in the localities through which the lines run. Despite the potentially large benefits from new transmission interconnections, aggregate transmission investment has stagnated in recent decades, in part, because of state jurisdiction over transmission siting. To facilitate the construction of socially beneficial grid expansions, Congress should preempt state and local authority over the siting and funding of new transmission lines. The Federal Energy Regulatory Commission should be granted exclusive authority over where to site and who pays for new transmission. A federal regulator would approve transmission projects based on a comprehensive examination of their benefits and costs, instead of the parochial assessment often performed today by states. Congress would be acting well within its constitutional authority and would, in fact, be following past legislative enactments in other network industries. Congress must act if the United States is to realize the vision of affordable, reliable, and clean electricity for all Americans. [ABSTRACT FROM AUTHOR]