This Article has two main aims: to provide a critical consideration of this contemporary antitrust “revival” from an explicitly political–economic perspective and to point toward some theoretical resources that might facilitate such an assessment.Part II looks backward at the evolution and application of competition law in the banking sector over the relatively longue durée. In this Part, I invoke the concept of “exception” to understand how antitrust policy has developed, and my chief interlocutors are the perhaps unlikely figures of Giorgio Agamben and Karl Marx. Part III looks forward and considers the central question around which the recent resurgence of interest in antitrust ultimately revolves: can (and should) antitrust law help in tackling the TBTF problem? The tentative conclusion is that unless we are prepared to fundamentally rethink the purpose of competition law—and in relation to this, the nature of capitalist competition itself— then the answer must be no. This is not because (as some commentators have argued) TBTF is not an antitrust issue. Rather, it is because antitrust theory and practice are today thoroughly economized, whereas the competition between large banks appears to be largely non-economic. In making this argument, I appeal not to Agamben and Marx, but to Paul Baran and Paul Sweezy, and most directly of all to the theorist whose name this symposium bears, Adolf Berle.
Brett Christophers, Banking and Competition in Exceptional Times, 36 SEATTLE U. L. REV. 563 (2013).
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