College of Law Faculty Scholarship

Title

Better Competition Advocacy

Source Publication (e.g., journal title)

St. John's Law Review

Document Type

Article

Publication Date

7-1-2008

Abstract

Competition authorities from around the world may disagree over substantive and procedural issues, but one undisputed topic is competition advocacy. Competition advocacy, as that term is commonly used, targets potentially anti-competitive governmental regulations or protections. But the prevailing competition advocacy glosses over four fundamental questions: First, what is competition? Second, what are the goals of a competition policy? Third, how does one achieve (if one can) the objectives of such desired competition? Fourth, how does one know if the economy is progressing toward these goals? While many have criticized government restraints on competition and praised competition advocacy, few have examined competition advocacy from this broader viewpoint. This examination is critical. Despite the consensus on a loosely defined competition advocacy, there is no consensus domestically or internationally among the growing number of competition authorities on these four fundamental questions. Moreover, the assumptions underlying competition advocacy may be infirm. Competition may not be a self-initiating, self-correcting sphere independent of the government. Instead, competition may be an open, complex process whereby firms interact with government and informal institutions. The government thus plays a key role in providing or promoting the necessary institutions for these markets to remain or become competitive. Rather than a moral dualism (exogenous government forces = bad & self-initiating free market forces = good), governmental and private forces instead may interact to provide the necessary infrastructure for that economy to flourish. Inquiring about the objectives of competition policy, the means to attain that end, the role of government institutions to assist toward that end, and our progression should be the critical exercises, and lead to more informed advocacy. Absent this examination, competition advocacy at best may be incomplete, and at worst self-defeating with its simplistic view of the competitive process and the evils of government.

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