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Corporate Law as a Tool for Regulating Big Tech's Power
The article explores how incorporation law, which creates a legal entity known as a corporation, has enabled technology companies to accumulate and sustain significant power, drawing parallels to historical entities like the East India Company. The author, Susan Watson, argues that the corporate form itself acts as a multiplier for power, allowing companies to control digital territories, dictate rules for participation, and accumulate resources across generations. Unlike traditional regulatory approaches that address monopolies, privacy issues, or platform gatekeeping after power has been established, the article suggests that incorporation law could be used proactively to impose conditions on how corporations operate. For instance, it proposes structural separation, where dominant platforms cannot both operate essential infrastructure and compete on it, and public-governance duties requiring non-discriminatory access, transparent rule-making, and data protection for dependent businesses. The historical context of the East India Company and America's Gilded Age is used to illustrate how corporate law has enabled the accumulation of power, and how states have historically responded to such power. The author emphasizes that corporations are state-constituted institutions, meaning they can be reshaped through legal frameworks to serve broader societal interests rather than just the 'gilded few.' The article concludes that while competition, privacy, and AI regulation remain important, incorporating regulatory conditions into the very foundation of corporate law could provide a more effective and sustainable approach to managing Big Tech's influence.
