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.

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”) is 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: entire markets, not just individual firms or discrete actions; power imbalances from differences in capital, not just disparities in compensation; financial allocations between owners and workers, not just between workers; and 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.

This article seeks to analyze the trends and patterns of mergers and acquisitions (M&As) during the Trade-Related Intellectual Property Rights regime and addresses the antitrust issues related to innovation and competition in the framework of competition policy. Empirical evidence supports the view that enhancing size in terms of corporate control of equity, product market share, and innovation market share could be the motivations for the M&A phenomenon in the sector such as software and pharmaceuticals. These sectors were able to extract relatively more profit margin as compared to the manufacturing sector. This article further observes anticompetitive practices in terms of pricing and abuse of dominance in these two industries. The study argues for introducing regulatory mechanisms in the competition policy which could address the antitrust implications of M&As that are engaged in by knowledge-based firms and start-ups. This is because such acquisitions can reduce the incentives to innovate or change the innovative and competitive dynamics in the relevant market.

The announcement of New Industrial Policy in July 1991 marked a paradigm shift in the overall macroeconomic policies followed in India from greater control and regulations to the free rein of market forces. Subsequently, there has been a paradigm shift in the competition regulation in India, with the establishment of the Competition Commission of India. The underlying motive behind the regulatory changes has been to increase competition in all spheres of economic activities. Given this background, the present study intends to assess whether the changes in policy regimes could bring out the desired output in terms of heightened competition in various spheres of the manufacturing sector, specifically across various subsectors in the manufacturing sector. These are important not only from a consumer point of view but also to identify the areas of concern for vigilant policy implementation. Using multiple indicators of concentration, we find that despite the increase in competition across various subsectors, concentration levels remain high for many subsectors. We observed high levels of concentration in seven of the twenty-nine subsectors studied and in another three high-moderate concentration levels noticed.

This study applies an econometric approach to estimate the impact of competition reform adoption and tightening on international trade, using Africa’s envisaged Tripartite Free Trade Area (TFTA) as a case study. An index measuring the extent to which competition regimes have been tightened and enforced between 2001 and 2016 in the TFTA countries is constructed. A gravity model of international trade, based on generalized method of moments, is then estimated to establish how exports are influenced by this competition index measure after controlling for other traditional gravity model variables. The results show that increasing competition reforms by 1% is associated with an increase in bilateral exports into the TFTA by 0.16%. However, if competition reforms in the importing country increase by 1%, then an approximate decline in bilateral exports of 0.46% would result. This underlines the role of competition enforcement in enhancing national competitiveness.

The Antitrust Revolution of the early 1980s arose from various intellectual currents, including specifically the growing acceptance of modern game theory. Its greatest impact, however, lay in the development of revised standards for merger policy. From ones which employed largely a set of per se standards, they rapidly evolved into those more compatible with the Rule of Reason. Large horizontal mergers were routinely approved, and concentration levels in major industries sored. Although efficiency levels were sometimes enhanced, there is little evidence that consumers generally benefited in the form of lower prices. As a result, the new merger policy may have contributed to the observed growing inequality in U.S. distributions of income and wealth.

The seven volumes of The Antitrust Revolution published between 1989 and 2019 include dozens of excellent articles that describe topical antitrust cases and the circumstances that motivated them. Taken together, the volumes provide invaluable insights into the course of antitrust enforcement over more than three decades and the factors that influenced the direction of change. This essay follows the course described in the pages of The Antitrust Revolution for two major components of antitrust enforcement: mergers and vertical restraints. The cases demonstrate that economic analysis profoundly impacted merger decisions, although the trajectory has been anything but linear. The revolution was more dramatic for the treatment of vertical price and nonprice restraints of trade. Courts relied on economic principles to upset decades of legal precedent for these arrangements.

When it comes to digital platform markets, the competition authorities of Japan, the EU, and the United States share a similar approach toward the regulation of mergers. Additionally, they share a common approach with respect to exclusive dealings but apply slightly different rules concerning a refusal to deal in the regulation of monopolization. However, the regulation of Unfair Trade Practices (UTPs) in Japan is unique in that it is possible to regulate a vertical nonprice restraint imposed by a company with a market share between 20% and 50%. The author explores the regulation in the digital platform markets by the UTPs under the Japanese Antimonopoly Act and examines the possibility of the regulations by the UTPs as an alternative method. This article argues that it is desirable, especially in the case of private suits, that the assessment of market definition and the burden of proof be simplified.

In the late 1990s, the European Commission embarked on a mission to bring EU competition policy more into line with contemporary economic theory. Over a period of ten years, it systematically revised key legal concepts of all three pillars of EU competition law. Most importantly, it adopted the consumer welfare aim, revised its understanding of competitive harm and countervailing effects accordingly, and committed itself to carrying out more in-depth assessments of the investigated conduct’s effects instead of relying on form-based presumptions of illegality. Initially, many tenets of the more economic approach were in conflict with the case law of the European Court of Justice, which had a broader understanding of the aims of EU competition law. However, after a few initial set-backs for the Commission, several recent judgments in cases such as MEO, Intel, Post Danmark I, and Cartes Bancaires suggest that the Court’s understanding of EU competition law is evolving and that it is willing to embrace at least a few of the Commission’s revised principles. In particular, it is adopting a more effects-based approach to assessing business conduct and is cautiously curbing its former concept of harm in exclusionary situations. At the same time, however, it continues to adhere to many of its former freedom- and fairness-based principles, so that a number of uncertainties and inconsistencies remain.