A Consumer Divided Cannot Stand

• DOI: http://doi.org/10.1177/0003603X231163000
• Published date: 01 June 2023
• Date: 01 June 2023

https://doi.org/10.1177/0003603X231163000

The Antitrust Bulletin

2023, Vol. 68(2) 307 –317

© The Author(s) 2023

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DOI: 10.1177/0003603X231163000

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Article

A Consumer Divided Cannot Stand

Shubha Ghosh*

Abstract

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

critiques.

Keywords

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

research-article2023

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).