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A natural consequence of employer restraints of trade that decrease wages is lower prices. Under antitrust law, courts evaluate most such restraints of trade under the rule of reason. This Note argues that the rule of reason’s focus on consumer welfare and the natural price decrease that follows from employer restraints of trade cause underenforcement of antitrust law against anticompetitive employer conduct. Such a result is anomalous, because the consumer welfare standard that permeates antitrust law should protect employees as much as customers that purchase goods.

To solve the under-enforcement problem, this Note proposes that courts analyzing a restraint of trade that plausibly affects two different markets should focus on the welfare of the employees or customers that the restraint directly affects. If the net anticompetitive effects in that market are de minimis, then the court should consider the competitive effects in other markets. This worker-first approach would ensure that defendant-employers could not use price cuts to justify anticompetitive conduct that harms workers.

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Vanderbilt Law Review

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