Democracy or Dagher? What Liberals Would Want

Abstract

Although corporate capitalism and democracy can never be made compatible, it is corporate capitalism, not democracy, that the present Supreme Court strains to accommodate. Dagher illustrates how the Court strained through a logic of corporate capitalism to accommodate two competing petroleum firms so they could legally conspire through their cartel to eliminate nationwide and some global competition, in part by forming two joint ventures through which the firms fixed prices of their respective products and managed their production and marketing. Through decisions like Dagher, the Court threatens a liberally conceived—but largely illusory—democratic marketplace of competitive prices, as the Court will likely continue its assault against the antitrust laws and its per se rule and destroy legal principles that favor an authentically democratic economic system and provide defenses against corporate capitalism in democracy's struggles with corporate incompatibilities.