Economic law, inequality, and hidden hierarchies on the EU internal market

The concentration of global wealth, power, knowledge, authority and prestige continues unabated. Antitrust enforcement has been at the heart of debates on combating increasing inequality. Yet, the transformation possibilities have been overstated, while its impact has been paralyzed by widespread assumptions about both antitrust and international trade analysis. Challenging "market power" or "capital accumulation", as per Thomas Piketty's analysis, may contribute to the reproduction of concentration of power. This article cautions about the viability of the current antitrust and international trade assumptions and doctrines to tackle the challenges of growth and injustice of today’s globalized society.
It argues that the hierarchical structure of production in goods, services, knowledge, and prestige in global society should be the starting point of legal and economic analysis. Lawyers should articulate targeted resistance to particular hierarchies using antitrust and trade law as updated tools. As an example of this analysis, this article describes a privilege to harm, enjoyed by companies from the structural center of Europe against firms on the periphery. This privilege is termed: dumping by the center. This analysis provides one explanation for the increasing wealth and power in the center of the European Union, despite the Union's promise of development for all. While developing this doctrine, several assumptions of antitrust and trade law are challenged, including the coherence of the consumer welfare standard, the benefits of low prices and the assumption that non-predatory dumping on the internal market is not possible. The article also challenges the sensibility that economic thinking is the main culprit in the concentration of power and economic impoverishment of some parts or sections of the world. Rather, what needs to be challenged is the existing understanding of injury, in economic thinking just as much as in thinking about equity or fairness. The article concludes that a combat against the concentration of wealth, power and prestige requires a step outside the existing antitrust and trade paradigm and needs to address the disparity in the global allocation of privileges to harm.

Fall 2016