Racist Antitrust, Antiracist Antitrust

Abstract

If the tumultuous 2010s yielded one consistent theme, it is frustration with inequality coalescing 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.