Document Type
Article
Publication
Virginia Law Review
Year
2000
Citation Information
Daria Roithmayr, Barriers to Entry: A Market Lock-In Model of Discrimination, 86 VA. L. REV. 727 (2000), available at https://scholar.law.colorado.edu/faculty-articles/1815.
Abstract
The Justice Department yesterday filed an antitrust suit against members of the majority race, alleging that the group has harmed the public, consumers, and rivals by excluding Black and Latino/a competitors from the law school admissions market.' The Department alleges that a monopoly by whites has restricted competition and stifled innovation in legal education and the broader profession.
The government's central claim focuses on historical misconduct, rather than any contemporary wrongdoing. The complaint alleges that whites at the turn of the century monopolized the benefits of law school admissions for nearly one hundred years, by keeping nonwhites out of law schools.
Specifically, the Department charges that the cartel's early monopoly power became self-perpetuating because the cartel imposed law school admission criteria that favored whites. According to the complaint, "[b]ecause whites were able to bar entry for minorities early on in modern legal education, they were able to impose their own standards for competition, and to chart a path for legal education very different from the path that might have been taken had people of color been permitted to compete."
Like the Department's allegations in its case against Microsoft, the government argues that this competitive standard has now become locked into the law school admissions market via self-reinforcing mechanisms called "increasing returns." Specifically, a law school must adopt the standard set of criteria to gain access to the network of legal institutions and organizations that make up the legal profession. That institutional network, in turn, reinforces the law school's use of the standard, because the standard becomes more entrenched when the legal profession continues to use it.
In a telephone interview, the Assistant Attorney General for the Antitrust Division remarked that this so-called "network standard" creates significant barriers to entry for minorities. "Law schools aren't likely to completely revise their admissions standards or overhaul their institutions to make them more open to minorities-they might lose access to the professional network, and then they risk things like their place in the rankings and/or their ability to place their graduates in prestigious firms. Because law schools aren't likely to switch, Black and Latino/a applicants will continue to be disproportionately excluded from law school admissions," she said.
"America's law school consumers, law firms, and the public in general have lost out," said the Attorney General at a news conference yesterday. "They have lost the benefit of vigorous competition among a wide range of law school applicants, who bring diverse cultural approaches and perspectives to the study and practice of law. The country has not enjoyed the innovation that competition brings." Spokespersons for whites said they would fight the suit. They maintain that anyone who has applied for law school knows that law school admissions are among the most competitive in the country.
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