Lessons for Competition Law from the Economic Crisis: The Prospect for Antitrust Responses to the Too-Big-to-Fail Phenomenon
![handle is hein.journals/fjcf16 and id is 265 raw text is: LESSONS FOR COMPETITION LAW
FROM THE ECONOMIC CRISIS:
THE PROSPECT FOR ANTITRUST RESPONSES TO
THE TOO-BIG-TO-FAIL PHENOMENON
Jesse W. Markham, Jr.
[If] the free-market sector of the economy is allowed to develop
under antitrust rules that are blind to all but economic concerns, the
likely result will be an economy so dominated by afew corporate giants
that it will be impossible for the state not to play a more intrusive role in
economic affairs... .
-Robert Pitofsky'
ABSTRACT
This article examines whether, and the extent to which, antitrust law
could contribute to a broader regulatory effort to control the too-big-
to-fail problem. The article begins by exploring the nature of the
problem. Against this backdrop, it considers antitrust policy and
rules to evaluate whether antitrust might play a meaningful role. The
article concludes that antitrust law, if vigorously enforced with an
emphasis on avoiding too-big-to-fail problems, can be a useful
public policy tool to address the problem. However, it can come
nowhere near solving it or preventing recurrences of recent systemic
failures.
Marshall P. Madison Professor of Law, The University of San Francisco School of
Law. A version of this article was presented by the author at the Murphy Conference
on Corporate Law at Fordham University Law School, March 12, 2010. The author
wishes to express his gratitude to many who contributed to the research and writing of
this article in a variety of capacities. Professor Steven Schatz graciously reviewed an
early stage of the article. Robin Bennett provided invaluable background research. The
University of San Francisco School of Law provided generous support for this project
and the law faculty, in numbers too great to thank here individually, offered insightful
suggestions at a presentation based on a formative draft.
1. Robert Pitofsky, The Political Content of Antitrust, 127 U. PA. L. REv. 1051,
1051 (1979).
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Lessons for Competition Law from the Economic Crisis: The Prospect for Antitrust Responses to the Too-Big-to-Fail Phenomenon
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