A Consumer Divided Cannot Stand

Published date01 June 2023
Date01 June 2023
The Antitrust Bulletin
2023, Vol. 68(2) 307 –317
© The Author(s) 2023
Article reuse guidelines:
DOI: 10.1177/0003603X231163000
A Consumer Divided Cannot Stand
Shubha Ghosh*
Should product disparagement give rise to an antitrust claim of monopolization or attempted
monopolization? Majority of the courts have said no while some scholars are skeptical of these
decisions. This article examines how conflicting visions of the consumer inform this debate. The
conventional wisdom is that antitrust claims should adopt the principle of consumer welfare
maximization with the assumption of the rational consumer, protected by product disparagement
laws independent of antitrust. But if the consumer is not rational, the application of the consumer
welfare standard needs to be re-examined. Specifically, product disparagement and antitrust claims
are not independent or separable. This article examines the implications of the consumer division and
examines both the consumer welfare assumption of conventional antitrust and its neo-Brandeisian
consumer welfare, rationality, neo-Brandeisianism, product disparagement, monopolization
I. Introduction
What follows are thoughts about neo-Brandeisianism in current antitrust and what it says about the
scope of antitrust enforcement. I want to suggest that a difficult issue for the normative foundations of
antitrust is the recognition of a split consumer. Carrier and Tushnet characterize this ambiguity as hav-
ing to do with the legality or illegality of false advertising.1 To simplify their argument, antitrust law
through its faint damnation seems to say false advertising is okay, while unfair competition law con-
demns false advertising through the Lanham Act (and the FTC Act, which gets less attention in the
article).2 But this ambiguity has to do with conflicting assumptions about consumers. Sometimes the
consumer is a fully informed, rational shopper. Other times, the consumer is a readily deluded bump-
kin. Is the consumer a sage or a fool? Or are consumers hopelessly divided and in need of selective
intervention? These questions bedevil our understanding of the welfarist standard in antitrust law.
*Crandall Melvin Professor of Law, Syracuse University College of Law, Syracuse, NY, USA
Corresponding Author:
Shubha Ghosh, Crandall Melvin Professor of Law, Syracuse University College of Law, Syracuse, NY 13244, USA.
Email: sghosh01@syr.edu
1163000ABXXXX10.1177/0003603X231163000The Antitrust BulletinGhosh
1. See generally Michael A. Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising, 106 Iowa L. R ev.
1841 (2021).
2. See Shubha Ghosh, The Antitrust Logic of Biologics, 2018 U. ILL. L. Rev. onLIne 46 (2018).

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