The Customer Is Not Always Right: Balancing Worker and Customer Welfare in Antitrust Law

This Note analyzes how courts' leniency affects a particular category of anticompetitive buyer conduct: agreements between employers that restrict competition in labor markets. If, as courts and commentators generally agree, the goal of antitrust law is to promote the welfare of consumers, how should courts balance the welfare of workers and customers under antitrust analysis? Arguably, worker welfare should be included in consumer welfare. If so, anticompetitive agreements between employers benefit one subset of consumers (customers), while hurting another subset (workers).

The persistent procustomer and antiworker effect of such complicates a court's choice to find conduct per se unreasonable or to apply the rule of reason under section 1 of the Sherman Act. Further, it calls into question how to balance procompetitive and anticompetitive effects of agreements subject to rule of reason analysis.