Conflict of Laws? Tensions Between Antitrust and Labor Law
Not long ago, economists denied the existence of monopsony in labor markets. Today, scholars are talking about using antitrust law to counter employer wage-setting power. While concerns about inequality, stagnant wages, and excessive firm power are certainly to be welcomed, this sudden about-face in theory, evidence, and policy runs the risk of overlooking some important concerns. The purpose of this Essay is to address these concerns and, more critically, to discuss some tensions between antitrust and labor law, a more traditional method for regulating labor markets. Part I addresses a question raised in the very recent literature, about why antitrust has not been a traditional tool of labor market regulation. Part II addresses some drawbacks in the social objectives of antitrust regulation, namely, the so-called consumer welfare standard or, as proposed for the labor market, the “worker welfare” standard, and suggests an alternative standard. Finally, Part III asks whether antitrust is an appropriate response to labor market monopsony. That Part shows that there are some significant tensions between antitrust and labor law and, given those tensions, explains why more traditional methods of wage regulation, collective bargaining, and even minimum wage legislation offer some distinct advantages.