Antitrust and Unfair Competition Law
Competition: Fall 2021, Vol. 31, No. 2
- A Litigator's Perspective On the Evolving Role of Economics In Antitrust Litigation
- An Economic Perspective On the Usefulness of the Consumer Welfare Standard As a Guiding Framework For Antitrust Policy
- Chair's Column
- Editor's Notes
- Fairness Requires the Elimination of Forced Arbitration
- Jeld-wen: Opening the Door To Private Merger Challenges?
- On Being a Transwoman Lawyer...
- Patents and Antitrust In the Pharmaceuticals Industry
- Ten Years Post-therasense: Closing the Gap Between Walker Process Fraud and Inequitable Conduct
- The Consumer-welfare Standard Should Cease To Be the North Star of Antitrust
- The Evolution of Antitrust Arbitration
- "COMPETITION POLICY IN ITS BROADEST SENSE": CAN ANTITRUST ENFORCEMENT BE A TOOL TO COMBAT SYSTEMIC RACISM?
"COMPETITION POLICY IN ITS BROADEST SENSE": CAN ANTITRUST ENFORCEMENT BE A TOOL TO COMBAT SYSTEMIC RACISM?
By Rosa M. Morales1
The debate among academics, lawyers, politicians, and others about the proper role of antitrust policy in addressing wealth inequalityâand by extension, racial inequalityâin the United States has intensified. Some critics blame conservative judicial interpretations and applications of antitrust law for increasing concentrations of corporate power, which they argue has contributed to growing wealth inequality, and in turn, racial economic inequality. As such, they posit, modern antitrust enforcementâor lack thereofâhas aided and perpetuated systemic racism.
In the past year, a growing chorus has called for antitrust laws to be deployed as a tool to combat systemic racism. Proponents argue that an anti-racist approach to enforcement is consistent with the original purposes of the U.S. antitrust laws, which they claim was to rein in corporate concentrations of power and ensure equal access to markets.2 Indeed, finding ways to prevent antitrust enforcement from perpetuating structural inequality will bring U.S. competition policy closer to its stated policy goals of restoring balance and fairness in the marketplace, and promote racial equity.3
Among the chief proponents of anti-racist antitrust enforcement is Federal Trade Commission ("FTC") Commissioner Rebecca Kelly Slaughter, who in September 2020 ignited a conversation about whether and how antitrust enforcement can and should be anti-racist.4 Slaughter’s statements echo the Biden/Harris Administration’s prescription for a "whole-of-government" approach for eradicating systemic racism, including through competition policy and enforcement.5 Her comments also come at the cusp of what may