Tuesday, July 12, 2011
Posted by D. Daniel Sokol
ABSTRACT: In the United States competition law is known as “antitrust law,” a name that has stuck since the emergence of the field and serves as a reminder of its origins in fears of big businesses - the trusts. Anti-Trust laws emerged mostly in response to public aversion towards big businesses. In 1882, Standard Oil’s General Solicitor devised a new use for an old legal instrument, “trust,” creating a business organization in which stockholders of various corporations transferred their stocks to trustees. Quickly the word “trust” acquired a new meaning: a concentration of capital in the hands of few - a big business. Antitrust arose, shortly thereafter, as a legal war against bigness. Despite the origins of the discipline and narratives to the contrary, business size in itself has never been an antitrust violation. The Great Recession revived old discussions of business size, albeit in a lesser degree in the antitrust community. This Essay studies the role of bigness in American competition law, seeking to eliminate past fears from any present analysis and narrative.