Wielding the Antitrust Tool: Antitrust Enforcement as a Means of Addressing Social Inequality
Abstract of Panel Theme:
At its roots, antitrust laws were enacted to benefit consumers, providing a mechanism to ensure consumer rights in the face of ever-growing corporate power. Yet, these core principles have been eclipsed by overreliance on law and economic principles to curb antitrust laws fullest potential. The solitary goal of “efficiency” has allowed courts to retreat from treating certain categories of anticompetitive conduct as per se violations. Similarly, the judiciary has altered procedural requirements to pursue private enforcement of antitrust cases in the name of “efficiency”.
In the face of this two-front assault on antitrust’s potential to balance consumer and corporate rights, this panel plans to discuss ideas about how to remobilize antirust.
The scholars for this panel are all progressive antitrust scholars:
- Spencer Waller Wallace, “Antitrust and Democracy”
Interim Associate Dean For Academic Affairs
Professor and Director
Institute for Consumer Antitrust Studies
Loyola University Chicago School of Law
Professor Waller will focus on a taxonomy of how to understand the democratic nature of an antitrust regime in any particular jurisdiction by looking at such factors as:
1) Voter awareness and engagement
2) Awareness and engagement of the legislative branch
3) Interference by the executive branch in pending matters
4) Transparency of executive or administrative enforcers
5) Issues of subsidiarity as our EU friends understand that term to mean whether issues affecting citizens are handled at the level of government closest to the people affected
6) Availability of meaningful private rights of action and,
7) Due Process for both complainants and respondents and meaningful judicial review
- John (“Jack”) B. Kirkland, “Does Antitrust Reduce Inequality?”
Professor of Law
Seattle University School of Law
Executive Comm., AALS Antitrust Section
Senior Fellow, American Antitrust Institute
Advisor, Inst. of Consumer Antitrust Studies
The paramount purpose of antitrust law is to prevent firms from using anticompetitive conduct to increase their market power – their power to raise prices – and thereby transfer wealth from consumers to themselves. At its core, therefore, antitrust exists to stop firms from stifling competition in order to alter the distribution of resources in the economy. Despite this fundamental goal, some scholars have argued that antitrust is not a useful tool in the effort to reduce economic disparities because anticompetitive behavior does not increase inequality. They note, for example, that corporate stock is now widely held by pension and retirement accounts. Thus, when corporations increase their profits through anticompetitive conduct, many workers benefit. My presentation will address these arguments, as well as other recent work on antitrust and inequality, and provide a balanced assessment. It is likely to conclude that more aggressive antitrust enforcement would indeed reduce the unequal distribution of resources in the economy. After all, the wealthy still own the vast majority of corporate stock.
- Lina Khan, “Market Power & Inequality: The Antitrust Counterrevolution and Its Discontents”
Yale Law School, Class of 2017
In this presentation, Ms. Khan will discuss how a revived antitrust movement could play an important role in reversing the dramatic rise in economic inequality. With public engagement and political will, the antitrust counterrevolution—which has produced monopolistic and oligopolistic markets and contributed to a captured political system— can be undone. Her argument is not that antitrust should embrace redistribution as an explicit goal, or that enforcers should harness antitrust in order to promote progressive redistribution. Rather, she will explain how the failure of antitrust to preserve competitive markets contributes to regressive wealth and income distribution and—similarly—restoring antitrust is likely to have progressive distributive effects.
- Christine Bartholomew (Panel Chair), “When the Patient Isn’t the One Who is Sick: How Procedural Changes in Antitrust Enforcement Stymy Healthcare Reform.”
Associate Professor of Law
SUNY Buffalo School of Law
Director of Law Journals
Procedural changes rarely generate social outrage. The intricacies of pleading standards and class certification requirements do not make for gripping headlines. Yet, changing the rules of how a case proceeds impacts the overall potential for private antitrust enforcements. Due to the actions of Congress and judges, class action mechanisms under Rule 23 are eroding. It is now more difficult to state a class claim, certify a class, and survive summary judgment than it has been since the birth of the modern class action in 1966. Whether a serious injury afflicts a substantial class is now secondary to procedural battles and merit-based determinations are rarely reached, as procedural hurdles that create barriers to resolving liability continue to rise. To illustrate, I plan to focus on how a decade of procedural changes limit the potential use of private antitrust enforcement to reduce the cost of healthcare.