Professor Mirit Eyal-Cohen gave a workshop at Case Western Reserve School of Law in Cleveland on September 29, 2011. The subject of the workshop was Professor Eyal-Cohen's article, "Are All Things Small? Introducing A Progressive Scale of Competitive Viability." Abstract:
American politicians love to rally around small businesses and grant them favorable treatment in the law. In the popular imagination, “small business” is synonymous with innovation, entrepreneurship and job creation. Yet just what is a small business, in the eyes of the law? Is a “small business” deemed small by its revenue, its number of employees, or other attributes? The fact is, there is no one standard definition. Current statues are inconsistent, and many definitions are remarkably broad. This has allowed even large and established firms that dominate their markets to take advantage of provisions intended to protect small businesses and improve their competitiveness.
This paper will examine the size standards found in government contracts law and the Internal Revenue Code, and will trace the development of these standards through their legislative history. The paper will conclude with a proposal for a unified progressive scale to replace current definitions of “small” business. This new model is based fundamentally on an entity’s prospective ability to compete.