Racist Antitrust, Antiracist Antitrust

• Author: John Mark Newman
• Published date: 01 September 2021
• DOI: 10.1177/0003603X211031675
• Date: 01 September 2021
• Subject Matter: Introduction

Antitrust and Race Symposium

Racist Antitrust,

Antiracist Antitrust

John Mark Newman*

Abstract

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.

Keywords

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.

1

If the tumultuous 2010s yielded

one consistent theme, it is frustration with ineq uality coalescing into collective actio n.

2

Multiple

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

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DOI: 10.1177/0003603X211031675

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