Racist Antitrust, Antiracist Antitrust

Published date01 September 2021
Date01 September 2021
Subject MatterIntroduction
Antitrust and Race Symposium
Racist Antitrust,
Antiracist Antitrust
John Mark Newman*
If the tumultuous 2010s yielded one consistent theme, it is frustration with inequality coalesci ng
into collective action. In response, progressive enforcers and commentators have begun to
explore whether the antitrust laws—enacted in an attempt to counter concentrated power
during a previous Gilded Age—might play a role in addressing systemic racialized inequality. This
essay contributes to that ongoing conversation by historicizing a pair of antitrust cases: Knights of
the Ku Klux Klan and Superior Court Trial Lawyers Association. The first is an admirable example of
antiracist antitrust. The second is its opposite. Together, these two decisions represent divergent
paths. Which has the contemporary antitrust enterprise followed? The Supreme Court’s most
recent substantive decision in the area, Ohio v. American Express, suggests both room for hope and
reason for concern. The essay concludes by offering four recommendations for how antitrust can
retake the high road. Antitrust can and should help to address—rather than exacerbate—
structural inequality.
antitrust, antiracism, structural racism, inequality
The United States is slowly rediscovering politics. A decades-long experiment in laissez-faire policy-
making has failed to correct societal inequities—much the opposite.
If the tumultuous 2010s yielded
one consistent theme, it is frustration with ineq uality coalescing into collective actio n.
progressive political movements arose, each in its own way a response to the persistent effects of
systemic inequality. Each is a call to wake up to the reality of how power has been apportioned and
used—and, all too often, malapportioned and misused.
* University of Miami School of Law, Coral Gables, FL, USA
Corresponding Author:
John Mark Newman, University of Miami School of Law, Coral Gables, FL 33146, USA.
Email: johnnewman@law.miami.edu
1. Juliana Menasce Horowitz et al., Trends in U.S. Wealth and Income Inequality,PEW RES.CTR., Jan. 9, 2020, https://www.
pewresearch.org/social-trends/2020/01/09/trends-in-income-and-wealth-inequality/ (“Economic inequality, whether
measured through the gaps in income or wealth between richer and poorer households, continues to widen”).
2. See, e.g., Peter Dreier, The Decade in 11 Movements,A
M.PROSPECT, Jan. 8, 2020, https://prospect.org/civil-rights/the-decade-
in-11-movements/ (“The past decade saw more grassroots activism than at any time since the Great Depression....”).
The Antitrust Bulletin
2021, Vol. 66(3) 384–395
ªThe Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/0003603X211031675

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