Intro to Antitrust and Race Symposium

AuthorHal Singer,Ted Tatos
Published date01 September 2021
Date01 September 2021
Subject MatterIntroduction
Introduction Antitrust and Race Symposium
Intro to Antitrust and Race
Hal Singer* and Ted Tatos**
U.S. history is marked by societal inequities, particularly those divided along racial lines. Historians
have chronicled the struggles that minorities have faced in the search for the elusive, and all-too-often
ephemeral, American dream. The nation’s road to a more equitable union has been filled with detours,
as regressive policies have sought to reverse decades of progress, much of it already attained at what
may seem to those most marginalized at a glacial pace.
Antitrust law and competition policy have been largely silent bystanders in the movement toward
racial equity. The Sherman Antitrust Act of 1890 was meant to disperse economic power, which at the
time was concentrated in the hands of massive conglomerates or “trusts.” Under this broad mandate,
attacking power imbalances that disproportionately harm Black Americans would be a perfectly
legitimate use of antitrust and one consistent with statutory intent. Indeed, the former acting chair
of the Federal Trade Commission, Rebecca Slaughter, has made “anti-racism” her lodestar.
To be sure, antitrust law was never intended to be a panacea for society’s ills. Nor can it be. The
prescription for racial equity requires a far broader set of instruments. But do antitrust law and
competition policy have any role to play in achieving racial equity? More concerning, have they
played a role, perhaps inadvertently, to inhibit progress on this issue? Certainly, the Supreme Court’s
decision in NCAA v. Board of Regents of the University of Oklahoma reverberated for decades,
allowing the NCAA to defend a horizontal wage-fixing cartel to metastasize, much to the detriment
of Black athletes whose labor has powered the economic engine of collegiate sports.
The recent decision in Alston v. NCAA, the Supreme Court’s first NCAA ruling in over thirty years,
has finally disposed of the NCAA’s supporting pillar in Board of Regents as dicta, a mere “passing
comment” neither binding nor dispositive. At the very least, antitrust law’s role encompasses redres-
sing detrimental effects that prior rulings have had on racial progress. But more broadly, in his
concurring opinion, Justice Kavanaugh recognized the disparate impact of the NCAA’s restraint on
Black and lower income students, implying a broader role for antitrust in recognizing the impact of
competition on minorities and marginalized communities. So, the question remains, as our nation
continues to struggle with the poison of systemic racism, where do antitrust law and competition policy
fit in this battle? This is the issue our symposium addresses.
* Georgetown’s McDonough School of Business, Washington, DC
** EconONE Research
Corresponding Author:
Hal Singer and Ted Tatos
The Antitrust Bulletin
2021, Vol. 66(3) 327
ªThe Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/0003603X211032773

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