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91 Indiana Law Journal Supplement 15 (2016)


Government restrictions on competition, whether in the market for cars, hotel rooms, or taxicabs, have attracted a great deal of attention of late. As a basic matter, government is not exogenous to the market: a functioning state is, in reality, a precondition for modern markets. Because it establishes the rules necessary for markets to develop and potentially flourish, government unavoidably shapes the bounds and structures of the private economic sphere. And more specifically, public limitations on competition are not intrinsically hostile to the interests of ordinary Americans and can, in fact, advance vital social goals, such as full employment and public safety. Accounting for these considerations, governmental restraints should not be blindly condemned as harmful; rather, they should be examined on a case-by-case basis. Even aggressive newcomers with savvy public relations (such as Airbnb, Tesla, and Uber) and giddy talk of “disruption” should not lead us to denounce legal restrictions on these actors as a matter of reflex.

Critically, the present focus on public restraints should not mean that private efforts to create closed markets get a free pass. In contrast to democratic public authorities, large corporations face little accountability. Dominant firms can use predatory and other exclusionary methods to maintain their long-run supremacy and prosper through exploitation of the public. Given the awesome power of monopolistic and oligopolistic corporations, antitrust enforcers and other regulators must reassert public discipline over private empires.