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67 UCLA L. Rev. 378 (2020-2021)
Antitrust as Allocator of Coordination Rights

handle is hein.journals/uclalr67 and id is 394 raw text is: Antitrust as Allocator of Coordination Rights
Sanjukta Paul
ABSTRACT
The reigning antitrust paradigm has turned the notion of competition into a talisman, even as
antitrust law in reality has functioned as a sorting mechanism to elevate one species of economic
coordination and undermine others. Thus, the ideal state idea of competition and its companion,
allocative efficiency, have been deployed to attack disfavored forms of economic coordination,
both within antitrust and beyond. These include horizontal coordination beyond firm boundaries,
democratic market coordination, and labor unions. Meanwhile, a very specific exception to the
competitive order has been written into the law for one type of coordination, and one type only:
that embodied by the traditionally organized, top-down business firm.
This Article traces the appearance of this legal preference and reveals its logical content. It also
explains why antitrust's firm exemption is a specific policy choice that cannot be derived from
corporate law, contracts, or property. Indeed, because antitrust has effectively established a state
monopoly on the allocation of coordination rights, we ought to view coordination rights as a public
resource, to be allocated and regulated in the public interest rather than for the pursuit of only
private ends. Intrafirm coordination is conventionally viewed as entirely private, buoyed up by the
contractarian theory of the firm. But the contractarian view of the firm cannot explain antitrust's
firm exemption and is inconsistent with the conventional justifications for it. This Article also briefly
sketches policy choices that flow from the recognition that coordination rights are a public resource,
focusing upon expanding the right to engage in horizontal coordination beyond firm boundaries.
AUTHOR
Assistant Professor of Law, Wayne State University. For their valuable comments on earlier drafts
of this Article or in related discussions, I am grateful to Vincent Buccola, Brian Callaci, Cynthia
Estlund, Amy Kapczynski, Karl Klare, Christopher Leslie, Suresh Naidu, John Newman, Randy
Picker, Shayak Sarkar, Marshall Steinbaum, Nathan Tankus, Sandeep Vaheesan, Jon Weinberg,
Steven Winter, and Noah Zatz. I am also grateful to participants in the Antitrust Scholars
Roundtable at the University of California, Irvine, School of Law; faculty workshops at Ohio State
and Wayne State law schools; a symposium on antitrust policy held at the University of Chicago
Harris School of Public Policy; and a panel discussion at Yale Law School. I thank Nathan Tankus
for excellent research assistance, and for critical moral and intellectual support in the formation of
some of these ideas. Last but not least, I am very grateful for the excellent work of the editors of the
UCLA Law Review. All errors and omissions are mine.

67 UCLA L. REV. 378(2020)

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