Paper Trail: Recent Papers on Antitrust and Structural Racism

• Pages: 1-8

theantitrustsource

■

www.antitrustsource.com

■

February 2024

1

■

Matthew E. Moloshok

is a partner at Hellring

Lindeman Goldstein &

Siegal LLP.

Paper Trail: Recent Papers on Antitrust and Structural Racism

Editor’s Note: Two recent papers study how antitrust doctrine—past and present—contributes to

structural economic racism, and how it could be changed to generate a fairer competitive landscape

through “antiracist” policies. Is an “antiracist antitrust” feasible?

Reviewed by Ma t t h e w e. Moloshok

Bennet Capers & Gregory Day, Race-ing Antitrust,121 Mich. L. Rev. 523 (2023); Hiba Hafiz, Antitrust and

Race,100 Wash. U. L. Rev. 1471 (2023)

Antitrust scholars pay attention to social movements. Occupy Wall Street prompted articles

addressing how and whether antitrust law should be used to address income and wealth inequality.

Black Lives Matter prompted opinion pieces calling for “antiracist” antitrust policies and enforce-

ment; Federal Trade Commission (FTC) Commissioner Rebecca Kelly Slaughter notably sent a

series of tweets calling for exploration of how the FTC could use “the tools we have” to help build

an equitable and antiracist economy, followed by an address on the subject.1

What would “antiracist” antitrust entail? Two recent articles offer expansive proposals: Bennet

Capers and Gregory Day’s Race-ing Antitrust

2 and Hiba Hafiz’s Antitrust and Race.3 Both papers

argue that racism is a distinct harm to markets and market participants, which more general “total

welfare” approaches do not adequately address. In particular, they assert that using “color blind”

antitrust standards leads courts and agencies to exacerbate harms that disproportionally impact

non-white workers, consumers, investors, and communities.

Based on these principles, Professors Capers and Day provocatively propose deploying “criti-

cal race theory” to shape both antitrust standards and remedies, while Professor Hafiz, recognizing

the “precarity” of race-conscious remedies, offers a somewhat more mainstream but nonetheless

sweeping list of reforms. This Paper Trail can barely scratch the surface on the authors’ extensive

thoughts.

* * *

In Race-ing Antitrust, Capers and Day advocate an all-out application of critical race theory

(CRT) to re-imagine antitrust doctrines and enforcement.4 They posit that racial discrimination in

itself is a form of market failure because it prevents free market competition for jobs, capital, and

business opportunities. Social discrimination and legislative enactments put non-whites in a sep-

arate caste; concerted action of labor unions, homeowners’ associations, and bankers, among

1 Rebecca Kelly Slaughter (@RKSlaughterFTC),

tWI t t e r (

now known as “X

”) (

Sept. 9, 2020, 2:28 PM), https://twitter.com/rkslaugh-

terftc/status/1303762111433265153; Rebecca Kelly Slaughter, Antitrust at a Precipice: Remarks at the GCR Interactive: Women in

Antitrust (Nov. 17, 2020), https://www.ftc.gov/system/files/documents/public_statements/1583714/slaughter_remarks_at_gcr_interac-

tive_women_in_antitrust.pdf.

2 121

MIC H . l. re v .

523 (2023) (hereinafter “Capers & Day”).

3 100

W asH . u. l. re v .

1471 (2023) (hereinafter “Hafiz”).

4 Capers & Day, 121

MIC H . l. re v .

at 529-30.