Antitrust and Race

Abstract

Antitrust law regulates the consolidation and abuse of economic power. One of its core tasks is to ensure that market success is not rigged in favor of undeserving winners against excluded competitors at consumers’ and workers’ expense. But for their entire enforcement and doctrinal history, antitrust regulators and courts have built a legal infrastructure that assesses the exercise of economic power and its adverse effects as if that power and its effects were “color blind.” In fact, corporate concentration, firm dominance, and anticompetitive conduct not only contribute to structural racism, but the very tools regulators use to combat those harms can reinforce racial inequality and disparately impact people of color.

This Article is a framing project, providing a comprehensive overview of antitrust law’s relationship to racial inequality. Its goal is to identify the core problem areas and mechanisms by which antitrust has contributed to racial subordination in order to invite both a reckoning and suggestions for antiracist reforms. It first explains how firms’ dominance and anticompetitive conduct have rigged market access in ways that create and perpetuate racial inequality. It then situates a novel data set of antitrust cases addressing race since the passage of the Sherman Act within the broader antitrust canon to detail how antitrust enforcers’ and courts’ “color-blind” approach to competition concerns have not only ignored the realities of racial inequality but also reinforced them. Finally, it proposes a suite of reforms as first steps to integrating analysis of race into antitrust enforcement, from market definition and merger review analyses to assessments of the anticompetitive effects and procompetitive benefits of firm conduct.