At the Nexus of Antitrust & Consumer Protection

This Essay uses Section 5 of the Federal Trade Commission Act to examine the theoretical and practical relationship between antitrust and consumer protection law. It argues that, since roughly 1980, there has been a hegemonic “neoliberal” framework, one that has in recent years been challenged by an emerging “moral economy” framework. The neoliberal framework conceptualizes antitrust as preventing firms from conspiring to throttle output, with a focus primarily on consumers’ interests in low prices, and consumer protection as making consumers informed, rational, and able to switch between competitors with relatively low cost. The moral economy framework conceptualizes both areas of law as aiming to prevent powerful players from using their power to manipulate conditions in their favor and away from a more general (though contested) notion of the public interest.

Implications of each view for the application of Section 5 are explored, with attention to the case law surrounding each area of doctrine.