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Mark J. Roe, From Antitrust to Corporation Governance? The Corporation and the Law: 1959-1994, in The American Corporation Today (Carl Kaysen ed., 1996).

Abstract: In this essay, I analyzed changes in the law's impact on the corporation during the past thirty-five years, what the underlying bases for these changes might have been, and how these changes affected corporate law. When the first Corporation and Modern Society symposium was held in 1959, today's issues, such as competitiveness, were hardly apparent, and the issue of colossal corporate power was paramount. Antitrust law in particular was seen to be a means to restrain the large corporation. Underlying the 1959 urge to tame the large corporation was the widespread existence (or at least perception) of industrial oligopoly. It was oligopoly (or perhaps really the superior efficiency of a few American manufacturing leaders) that gave the large firm slack and induced the widespread perception of its power. What erased that image of power in the ensuing decades is clear: the reconstruction of Europe and Japan forced the American manufacturing oligopolists to compete in the international arena; an accelerating pace of technological change made old structures obsolete and brought forth new domestic competitors. While many of the old industrial firms were, or became, fit to compete in the new international arena and to ride the waves of new technological change, some weren't. Even the fit ones have to sweat to survive and cannot relax as they did four decades ago, making competitiveness considerations overshadow those of corporate power. Globalization changed the 1959 attitudes and shifted the legal focus on the corporation. Antitrust attacks to break up the giants seemed politically sensible when the three oligopolists split the U.S., and sometimes the world, market. They made no sense when the three came to be embedded in a world-wide market of ten firms. Antitrust rules relaxed. The notion of using law to control corporate power faded, and the legal questions began to focus on whether law plays some role in hindering, or enhancing corporate competitiveness.