Antitrust As Antiracism: Antitrust as a Partial Cure for Systemic Racism (and Other Systemic 'ISMS')

33 Pages Posted: 1 Apr 2021 Last revised: 6 Oct 2021

See all articles by Joshua P. Davis

Joshua P. Davis

UC Law, San Francisco

Eric L. Cramer

Berger Montague PC

Reginald L. Streater

Berger Montague PC

Mark R. Suter

Berger & Montague, P .C.

Date Written: March 30, 2021

Abstract

We usually think of antitrust law as addressing violations of free market norms, not equality norms. The two, however, may be related. Systemic racism (and other systemic “isms”) are about power and its abuse. So is antitrust law. Moreover, antitrust may be able to fill gaps left by antidiscrimination law. In particular, antitrust law can address:

(1) entire markets, not just individual firms or discrete actions;
(2) power imbalances from differences in capital, not just disparities in compensation;
(3) financial allocations between owners and workers, not just between workers;
(4) legal violations that shrink total worker pay, and do not just distort its allocation.

Antitrust law also relies on centrist free market principles. Those may be less controversial than tackling issues of race directly. To be sure, in part for that reason, antitrust laws are limited. They can at best remedy a small portion of the potential wrongs caused by systemic racism. But antitrust may nevertheless contribute valuably to systemic racial equality. It also may provide a model for how antidiscrimination law might be reframed to make it more effective in that regard.

Keywords: antitrust, racism, antidiscrimination, antiracism, monopsony, market power, class actions, monopsonist

JEL Classification: K12

Suggested Citation

Davis, Josh Paul and Cramer, Eric L. and Streater, Reginald L. and Suter, Mark R., Antitrust As Antiracism: Antitrust as a Partial Cure for Systemic Racism (and Other Systemic 'ISMS') (March 30, 2021). Univ. of San Francisco Law Research Paper No. 2021-01 (forthcoming in the Antitrust Bulletin), Available at SSRN: https://ssrn.com/abstract=3816202 or http://dx.doi.org/10.2139/ssrn.3816202

Josh Paul Davis (Contact Author)

UC Law, San Francisco ( email )

200 McAllister Street
San Francisco, CA 94102
United States

HOME PAGE: http://uclawsf.edu

Eric L. Cramer

Berger Montague PC ( email )

1818 Market Street
Suite 3600
Philadelphia, PA 19103
United States
215.875.3009 (Phone)

Reginald L. Streater

Berger Montague PC

Mark R. Suter

Berger & Montague, P .C.

1622 Locust Street
Philadelphia, PA 19103
United States

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