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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.

Numerous observers, from all sides of the political spectrum, have proposed alternatives to economic efficiency as objectives for antitrust enforcement and decisions. A list includes fairness, inequality, labor share of income, jobs, effect on competition (apart from consumer welfare), consumer choice, promoting democracy, concentration of political power, globalization, domestic control over resources, media veracity, environmental protection, managerial competence, and mitigating consumer error. Three factors raise general doubts about the merits of doing so. One is that antitrust is sufficiently complex and that adding additional factors to balance may make it even less comprehensible to the general public (and even experts). A second is that other policies are available to pursue these alternatives that are both better designed to do so and are not subject to the vagary of whether a particular firm or sector might be involved in an antitrust violation. The third is that antitrust ought not be distracted from its economic efficiency mission, since there is no other economy wide tool for promoting economic efficiency. Those considerations and others are used to assess the potential effectiveness of incorporating each of these alternatives into antitrust enforcement and adjudication. Many of these alternatives may be a side benefit of antitrust enforcement, but not a factor that antitrust enforcers and courts can be expected to sensibly trade off against economic efficiency.

AbstractThe populist use of competition policies is on the rise again, associated with the growth of big‐tech companies in the era of digital platforms. This article sees antitrust populism as a re‐emerging force in the United States and Europe via greater politicisation of competition law enforcement. It addresses the basic tenets of antitrust populism in order to expose the fundamental problems that populist use of competition law entails. I argue for a rethink of antitrust policy on the intellectual foundations laid down by what Mark Pennington describes as 'robust political economy'. We need greater regulatory humility and antitrust enforcement which takes both innovation and welfare seriously.

Intro -- Contents -- Prologue: Algorithmic Antitrust-A Primer -- 1 Introduction -- 2 What Are Algorithms? -- 3 Are Algorithms Inherently Secret? -- 4 ``Algorithmic Antitrust´´: Competition Policy for Algorithm-Driven Decisions -- 5 Is The Digital Hand Malicious? -- 6 Algorithmic Antitrust: A Primer -- 7 Presentation of the Book -- References -- Algorithmic Antitrust: A Critical Overview -- 1 Context -- 2 Some First Principles -- 2.1 What Is an Algorithm? -- 2.2 The Economics -- 2.3 Multisided Markets -- 2.4 Big Data -- 3 Dominance -- 4 Algorithmic Pricing and Collusion -- 4.1 Algorithmic Pricing -- 4.2 Machine-Based Collusion -- 4.3 Why Machine-Based Algorithmic Collusion Is Not a Problem -- 5 Mergers -- 5.1 Killer Acquisitions -- 5.2 Conglomerate Mergers -- 5.3 Merger Reforms -- 6 Concluding Observations -- References -- Algorithmic Antitrust and Consumer Choice -- 1 Introduction -- 2 Competition Law in Digital Markets -- 2.1 Algorithm Input -- 2.2 Consumer Benefits -- 2.3 Antitrust Issues -- 2.3.1 Leverage and Nudging Strategies -- 2.3.1.1 AI and Data -- 2.3.1.2 Nudge and AI -- 2.3.2 Consumer Choice -- 2.3.3 Price Algorithms -- 2.3.4 Tacit Collusion and Personalized Pricing -- 3 The Google Shopping Case: Leverage, AI, and Nudge -- 4 Conclusion -- References -- Algorithms, Big Data, and Merger Control -- 1 Introduction -- 2 Horizonal Unilateral Effects -- 2.1 Mergers Between Algorithm/Analytics Software Providers -- 2.2 Platform Mergers/Acquisitions -- 2.2.1 Analysing a Merger´s Impact on the ``Paying´´ Side of a Market -- 2.2.2 Analysing a Merger´s Impact on the ``Free´´ Side of the Market -- 2.2.2.1 Privacy as a Parameter of Competition? -- 2.2.2.2 Degrading the Quality of the Algorithm -- 2.2.2.3 Use of Data to Exploit Customers -- 3 Non-Horizontal Foreclosure -- 3.1 Interoperability -- 3.2 Accumulation of Data.

The antitrust world before 1890 looks barren when compared with today's global antitrust industry. The most common antitrust laws in pre-modern societies condemned practices that had the perceived tendency to raise prices: forestalling, hoarding and price fixing. Enforcement was focused on retail markets and trade in essential foodstuffs, like grain. Laws intended to ensure fair prices are common throughout history. Rules prohibiting unfair or excessive prices raise the more general question of price controls in pre-industrial societies. The historical evidence is ambiguous. Laws prohibiting monopolistic or abusive conduct are less clearly evident than anti-cartel laws in pre-industrial societies, although a few references exist. Before the 20th century, courts and authorities lacked the tools of modern economic analysis, like mathematics-based theories of harm. This absence of modern economics meant that there was no clear distinction among "economic," "social," "moral" and "political" policy objectives. Laws concerning product quality, consumer fraud and misrepresentations are commonly found in pre-modern societies. Although consumer protection rules were based on notions of fair dealing and justice, the rules were consistent with modern economic notions of transaction cost efficiencies, asymmetric market information and imperfect market information.

Industrial consolidation, digital platforms, and changing political views have spurred debate about the interplay between public and private power in the United States and have created a bipartisan appetite for potential antitrust reform that would mark the most profound shift in US competition policy in the past half-century. While neo-Brandeisians call for a reawakening of antitrust in the form of a return to structuralism and a concomitant rejection of economic analysis founded on competitive effects, proponents of the status quo look on this state of affairs with alarm. Scrutinizing the latest evidence, Alan J. Devlin finds a middle ground. US antitrust laws warrant revision, he argues, but with far more nuance than current debates suggest. He offers a new vision of antitrust reform, achieved by refining our enforcement policies and jettisoning an unwarranted obsession with minimizing errors of economic analysis.

What is it we talk about when we talk about antitrust? Frequently, a call for antitrust action at the frontier of the field is met by the response that the issue in question is "not an antitrust problem." Things we were told pre-2020 were not "antitrust problems," it ran the gamut from "patent holdup" and forcing a buyer to take an unwanted product to fake news and privacy breaches. Surprisingly, however, "antitrust problem" is not a well-defined term. As this has been pointed out, U.S. antitrust law as it exists today does not punish all ends that injure consumer welfare—for example, it is explicitly legal to possess a monopoly, and to use it to restrict output and charge monopoly prices. Nor does antitrust punish all means that injure consumer welfare—fraud and deception can injure consumer welfare, but without more they are not actionable under the antitrust laws. Post-2020, we find ourselves in an era in which policymakers are asking, not without some pushback, whether economic inequality, racial disparities, and decades of falling or stagnant wages can and should be addressed as problems by antitrust law. To define "antitrust problem," we must consider what antitrust is ultimately supposed to protect: the benefits for Americans of a national economic system based on market competition. Displacing such a system, and thereby depriving consumers of the benefits of such a system, is at the heart of what antitrust was designed to accomplish—even if contemporary antitrust doctrine paints in much narrower brushstrokes.