By Samuel N. Weinstein.
In modern antitrust law, courts are required to ask only one question: did the challenged action harm consumers? This Article asks a different question: which consumers? Over the last few decades, the Supreme Court has increasingly required antitrust plaintiffs to prove not only that they were harmed, but also that their harm outweighed any other consumers’ gains. The doctrine forces courts to pit groups of consumers against each other. In Amex, it was merchants against credit card holders. In Brooke Group, it was consumers buying a product during predation against consumers buying it during recoupment. In cases involving aftermarkets for durable goods, it was sophisticated consumers against less sophisticated consumers. And when it comes to antitrust remedies, it was direct purchasers against indirect purchasers. These tradeoffs follow a pattern: the consumers who lose often are poorer and less powerful than the consumers who win. Consumer tradeoffs like those in Amex and Brooke Group also raise significant barriers to recovery for plaintiffs, even in cases where there is demonstrated consumer harm. And these tradeoffs undermine the democratic appeal of the consumer welfare standard—that everyone’s rights matter equally. This Article shows how courts got into the business of making consumer tradeoffs, how it is harming consumers today, and how to get us out of it.