Law and the Economy in Neoliberalism: the Politics of Competition Regulation in Brazil.

How do regulatory reforms happen, and what are their roles in the economy and society? What are the connections between institutional reforms of economic governance and neoliberalism? The purpose of this research is to answer these questions through a case study of the politics of competition regulation reform in Brazil, as crystallized in the reform of the Brazilian competition authority – CADE, the Administrative Council for Economic Defence – in 1994, and the regulatory practice inaugurated since then. Antitrust laws were imported in several countries of the global South as an integral part of the neoliberal agenda of state transformation and economic liberalization of the 1990s. In the narratives of legal doctrine, economics and even in the social sciences, competition policy reform is often depicted as an evolutionary development and a successful technological solution propelled by experts and adopted by governments to avoid the undesirable consequences of a new economic model in construction and to protect consumers. Competition regulation is frequently presented as counter-evidence to the very existence of neoliberalism as a political and economic phenomenon, and to its utility as an analytical concept. In this dissertation, through conceptual tools derived from the sociology of law, economic sociology and a critical political economy, I argue that this regulatory model is both rooted in and functional for the neoliberal project of transforming economies and societies. Based on a trajectory study of and interviews with lawyers and economists involved in the reform and production of competition regulation, on documentary analysis, and on a quantitative and qualitative inquiry of decisions enacted by CADE between 1994 and 2010, I argue that the linkage between competition regulation and neoliberalism in Brazil can be visualized from three perspectives. First, from that of the roles of the concrete agents who performed reform and monopolized the practice of competition regulation: mostly corporate lawyers and neo-institutional economists whose educational backgrounds, professional trajectories, and political views are consistent with neoliberal theoretical and political tenets, and who shaped reform and instituted a mode of production of competition regulation accordingly. Second, from that of the profiles of economic concentrations and corporate conduct regulated through CADE’s decisions, and of how they are regulated, as well as in the disputes to determine competition policy’s jurisdiction over financial capital. In this sense, I describe how competition regulation has historically facilitated and legitimized several of the defining phenomena of a neoliberal economy: the concentration and expansion of foreign capital into a recently liberalized economy, the hegemony and concentration of financial capital, and a disciplinary attitude toward local and regional market agents, as opposed to global ones. Third, from the angle of how competition policy contributes to neoliberalism as a project that advocates for the destruction of social collectives – as exemplified in the protection of workers and employment – and for the parallel constitution of a regime of consumer citizenship. In this dimension, I assess how competition policy has defined consumers as the main and only subjects protected by regulation, while simultaneously and selectively excluding labor concerns and workers from its normative domain, even though they are directly affected by economic concentrations regulated by antitrust policy.