Antitrust as Antiracism: Antitrust as a Partial Cure for Systemic Racism (and Other Systemic “Isms”)

• Published date: 01 September 2021
• Author: Mark R. Suter,Eric L. Cramer,Reginald L. Streater,Joshua P. Davis
• Date: 01 September 2021
• DOI: 10.1177/0003603X211023620
• Subject Matter: Introduction

Antitrust and Race Symposium

Antitrust as Antiracism:

Antitrust as a Partial Cure for

Systemic Racism (and Other

Systemic “Isms”)

Joshua P. Davis*, Eric L. Cramer**, Reginald L. Streater**,

and Mark R. Suter**

Abstract

We usually think of antitrust law as addressing violations of free market norms, not equality norms.

The two, however, may be related. Systemic racism (and other systemic “isms”) is about power and its

abuse. So is antitrust law. Moreover, antitrust may be able to fill gaps left by antidiscrimination law. In

particular, antitrust law can address: entire markets, not just individual firms or discrete actions; power

imbalances from differences in capital, not just disparities in compensation; financial allocations

between owners and workers, not just between workers; and legal violations that shrink total worker

pay and do not just distort its allocation. Antitrust law also relies on centrist free market principles.

Those may be less controversial than tackling issues of race directly. To be sure, in part for that reason,

antitrust laws are limited. They can at best remedy a small portion of the potential wrongs caused by

systemic racism. But antitrust may nevertheless contribute valuably to systemic racial equality. It also

may provide a model for how antidiscrimination law might be reframed to make it more effective in

that regard.

Keywords

antitrust, antiracism, antidiscrimination, systemic racism, monopsony, monopoly

1. Introduction

We usually think of antitrust law as addressing violations of free market norms, not equality norms.

The two, however, may be related. Systemic racism (and other systemic “isms”) are about power and

its abuse. So is antitrust law. Moreover, antitrust may be able to fill gaps left by antidiscrimination law.

In particular:

* Center for Law and Ethics, University of San Francisco School of Law, San Francisco, CA, USA

** Berger Montague PC, Philadelphia, PA, USA

Corresponding Author:

Joshua P. Davis, Center for Law and Ethics, University of San Francisco School of Law, 2130 Fulton St., San Francisco, CA 94117,

USA.

Email: davisj@usfca.edu

The Antitrust Bulletin

2021, Vol. 66(3) 359–383

ªThe Author(s) 2021

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0003603X211023620

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1. Individual Entities or Actions Versus Economic Systems: Employment discrimination law

tends to focus on when the policies of discrete employers—and especially their discrete

acts—result in differential treatment of similarly situated workers. It is most useful, for exam-

ple, when a specific employer—or, better yet, a specific manager—hires or promotes white

people instead of equally or better qualified African Americans. But discrimination law tends

to founder when, instead, an entire system is designed in a way that places people of color at a

disadvantage. Antitrust law, in contrast, assesses entire systems. It can and does take into

account how an entire market is structured and whether a firm has exploited the structure of

a market—or distorted it—to its advantage. It also can evaluate the conduct of multiple firms.

2. Income Versus Capital: Discrimination law emphasizes income. It offers redress when a

protected group receives less compensation than it should. Antitrust law also attends to capital.

It can offer relief when those with capital—disproportionately white men—distort markets to

harm workers in general—in many industries, disproportionately people of color.

3. Apples to Apples Versus Apples to Oranges: Discrimination law is designed for apple to apple

comparisons—for example, whether similarly situated workers are treated differently. Antitrust

law to some extent can make apples to oranges comparisons—for example, assessing whether

workers (labor) are being exploited by owners (capital).

4. Dividing the Pie Versus Enlarging the Pie: Discrimination law can pit workers against each

other for limited resources. Antitrust law can increase the resources of workers generally.

5. Centrist Economic Principles: Antitrust law relies on centrist free market principles. Those

may be less controversial than tackling issues of race directly. To be sure, in part for that

reason, antitrust laws are limited. They can at best remedy a small portion of the potential

wrongs caused by systemic racism. But they can still contribute valuably to racial equality.

This essay will explore antitrust law’s potential and limitations as a tool for dismantling systemic

racism (and, by implication, dismantling other systemic “isms”). It will focus in particular on

workers and discuss both cases in which antitrust law has fulfilled or may fulfill some of its potential

as well as cases in which courts may have missed an opportunity to address systemic racism. We will

see that, for the reasons noted above, antitrust law can offer a powerful corrective when, for example,

disproportionately white ownership and management of one or more firms distor t an entire market to

take advantage of a pool of workers containing a disproportionally high percentage of African

Americans or other traditionally disadvantaged groups. Part II explores the relationship between

systemic racism and economics. Part III compares how antidiscrimination and antitrust doctrine

address claims by workers. Part IV provides examples of the use of antitrust litigation on behalf of

workers to combat systemic racism. Part V concludes and, in doing so, briefly notes some issues

antitrust law raises about how antidiscrimination law might be reframed to address systemic racism

more effectively.

II. Systemic Racism and Economics

This section does not attempt to choose between competing definitions of systemic racism. Nor does it

attempt to analyze the scope and effect of systemic racism. Rather it identifies some of its likely

features, especially the economic ones. The aim is to show that using plausible understandings of

systemic racism and its scope, antitrust law has potential as a way to counter it.

A. Systemic Versus Individual

A crucial—if obvious—point about systemic racism is that it is systemic. Racism is not merely the

product of individual bias or ill will. Indeed, while this essay focuses on systemic racism in the civil

360 The Antitrust Bulletin 66(3)