JURIST Digital Scholar Everest Fang proposes the necessary conditions within American society to call for more accountability in big business and to break up monopolies...
The United States has a long history of anti-monopoly sentiment. In the late 19th and early 20th centuries, fighting big business was a major issue in politics, with leaders across the political spectrum promising to take on large corporations. Fed up with child labor, dangerous working conditions, low wages, political corruption, and ruthless business practices, progressive reformers during this time demanded protection for the people and accountability for corporations. The progressive movement demanded regulation of corporate “trusts,” giving birth to America’s antitrust laws. Their cause was supported by journalists like Ida Tarbell, Upton Sinclair and other “muckrakers” who exposed the corrupt practices of large companies. Tarbell focused on the merciless behavior of oil tycoon John D. Rockefeller, while Sinclair exposed the brutal working conditions in the meatpacking industry. Investigative reporting helped agitate the masses, turning popular opinion against corporate power, and thereby propelling the government to take on big business. During this time, the corruption of monopolies was firmly entrenched in American culture, a key force driving the effort to check corporate power.
Since the Progressive Era, anti-monopoly sentiment has faded. Even with renewed calls for reinvigorating antitrust enforcement, busting large corporations no longer captures the imagination of the public like it once did. There has undeniably been an uptick in conversations about competition law and its need for reform. Indeed, bipartisan support for challenging big tech has emerged in Congress, and investigations of both Google and Facebook are underway. The anti-monopoly narrative, however, has not quite taken hold. A good way to figure out how much people care about an issue is to find out how much they are reading about it. A legal news site like JURIST (on which about 50% of readers are in the United States) provides an ideal environment for assessing public attention to certain legal issues, at least among those who are interested in legal news. The news after all is what fueled the original antitrust movement. Indeed, Ida Tarbell’s reporting on the ruthless behavior of John D. Rockefeller and the Standard Oil Trust is often cited as leading to the passage of the Clayton Antitrust Act and the creation of the Federal Trade Commission. Hard-hitting journalism can bring about real change, especially when the public pays attention. So how much attention are they paying now?
As part of the JURIST Digital Scholars Program, I analyzed readership data to assess the level of interest in articles about antitrust issues. To gauge reader interest in this particular topic, I used Google Analytics data on the number of unique views given to each page on JURIST’s website per year from 2014 to 2019 (an example of such data for the year 2014 can be found here). I was then able to compare the number of views given to articles about antitrust with the number of views given to an average article. I found that engagement with stories about antitrust is below the average level of engagement with JURIST articles.
The lack of interest in antitrust stories among JURIST readers reflects the relative obscurity of anti-monopoly issues in the U.S., a trend that poses a problem for those who seek to transform today’s antitrust landscape. If the legal scholars and political leaders who call for reinvigorating antitrust enforcement want to make real change, they will need to enlist the American people. Public opinion propels political change. The writing of journalists like Ida Tarbell and Upton Sinclair sparked public outcry, putting pressure on politicians to implement new policies. The people and their outrage were essential to bringing about trust-busting in the Progressive Era. If we want new laws, we will need a new movement. We will need a public that cringes at corporate power, is outraged by corporate corruption, and votes for corporate regulation. The antitrust movement was and is about returning economic power to the people, and those people will need to fight to get it back.
Public engagement is critical to antitrust reform for another reason: individuals can bring their own lawsuits for antitrust violations. In recent years, groups of employees and consumers have sued companies for a variety of anti-competitive practices. Back in 2006, a group of nurses filed four class-action lawsuits against multiple hospitals for conspiring to keep nurse wages low despite a national nurse shortage. These suits were successful and resulted in $14.1 million being paid out to the plaintiffs. In 2013, on top of the DOJ lawsuit, a group of airline passengers and travel agents sued to stop the merger of American Airlines and US Airways, claiming the action would result in significant fare increases. This case was not successful but nonetheless represents the power people have to challenge anti-competitive practices. Moreover, just two years ago, iPhone users sued Apple for antitrust violations, claiming that the App Store artificially inflates the price of apps while leaving no alternative places to shop. Apple sought to block the suit but just last year, the Supreme Court allowed the action to proceed. Judge Kavanaugh wrote the majority opinion, quoting the Sherman Antitrust Act and the Clayton Act, “The statutory text which states that ‘any person’ injured by an antitrust violation may sue to recover damages.” The text is clear. Anyone injured by an antitrust violation can sue. The ruling leaves open the possibility for countless lawsuits by those who have, say, been charged excessive fares for airline tickets, or been extorted for life-saving medications.
For a long time, the people of the United States fought bitterly against corporations who attempted to wield dominance over them. Yet, recently (and perhaps as a result of deliberate corporate effort), it seems many are not suspicious of big business anymore. They are loyal to big-name brands. They vote for politicians funded by corporations. The anti-monopoly rage of a century ago has faded. Granted, progressive politics in the U.S. is gaining steam, as is criticism of corporate corruption, but monopoly power has yet to become a headline issue. It seems, however, that this time of multiple crises compounded by powerful incompetence is ripe for restoring outrage. More and more people are realizing that the current system does not work, and sitting at the head of the table are massive companies. Hopefully, more will see that the people responsible for our mess are not just politicians, but also executives. They are the ones with real power today. They hoard the money, pay for the politicians, and uphold the system. They deserve the blame and the rage. The more people realize that the source of societal dysfunction is unchecked corporate power, the more likely we are to bring about social change. History has shown that if we want to make real progress in how we hold big business accountable, we must employ the power of public opinion.
This is the fourth article in a four-part series. Be sure to check out the first and second and third articles.
Everest Fang is a 2020 JURIST Digital Scholar. He graduated this May from Yale University with a BA in Economics and Mathematics. He was admitted to Harvard Law School through its Junior Deferral Program and plans to begin his studies there in fall 2022. In August, Everest began working at Deloitte’s Government/Public Services Consulting Office in Washington, DC.
Suggested citation: Everest Fang, Antitrust and the People, JURIST – Student Commentary, April 8, 2021, https://www.jurist.org/commentary/2021/04/fang-antitrust-people/.
This article was prepared for publication by Heidi J. T. Exner, JURIST Staff Editor. Please direct any questions or comments to her at email@example.com
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.