We the Market: Constituting Economic and Political Communities (LAW-RS-WEMARK-22)

LAW-RS-WEMARK-22

Description

First and second year researchers as well as LLM researchers can gain 3 credits by attending one of the researcher-taught seminars in each academic year; they can also register for and attend further researcher-taught seminars without gaining credits.

Competition law bears a striking resemblance in many aspects to constitutional law. The point was even made by the Supreme Court of the United States in Appalachian Coals, Inc v United States, where the Sherman Act was found to have ‘a generality and adaptability comparable to that found to be desirable in constitutional provisions’. This seminar offers a comparative exercise between both legal regimes and traces back how competition law emerged as a ‘market constitution’. The seminar takes as a starting point the two main modes of individual decision-making available in a liberal society, namely (1) political decision-making by voters which takes place in the political sphere and (2) economic decision-making by consumers which takes place in the marketplace. In liberal and democratic market economies, citizens are both consumers and voters. Acting in either of these capacities, citizens express preferences. What is offered to them in return is supposed to be responsive to these preferences. When the offer becomes rigid and indifferent to the input of voters and consumers, both legal regimes identify a problem. And that problem is often defined in terms of power. The first part of the seminar offers a characterization of the two modes of individual decision-making and explores the parallels and differences between them. A key parallel is that constitutional norms regulate public power while competition laws regulate private power. Finding the optimal amount of centralisation and de-centralisation(or concentration and diffusion)of power exercise is a core topic of both regimes. However, in constitutional law, there is a preference for a specific power architecture which allows for checks and balances. Competition law on the other hand does not introduce a rigid market structure that is deemed a priori to constitute the optimal power allocation. The second part of the seminar explores the implications of these two spheres or processes of decision-making co-existing. Are there tensions between the preferences expressed by voters and the preferences expressed by those same voters when they act as consumers? Is there a hierarchical relationship: does the constitution of the polity (‘We the People’) trump the constitution of the market (‘We the Market’) or vice-versa? To what extent can or should issues which belong (or have traditionally belonged) to one sphere play a role in the other sphere? Or, in other words, what can competition law do regarding issues of a political or social nature, such as freedom of speech or workers' welfare? Throughout the seminar, we will use case studies. The seminar will be of interest not only to researchers working on competition law and economic regulation, but also to researchers whose work does not fall directly within these areas. Participants are invited to reflect and exchange ideas on questions such as whether and how the consumer-voter parallelism could be leveraged for their own research projects and what the appropriate role of competition law is vis-à-vis other policy areas.

First, Second & Third Term: registration from 19 to 26 September.