Hastings Law Journal


This Article proposes a new means of regulating buyers' exercise of market power under the federal antitrust laws. The federal courts urgently need to adopt such an approach, because buyers have increased their market power in many domestic businesses. Wal-Mart's power to influence competition in retail markets is only one example of the increased market power of buyers in the United States economy. The courts' current approach to buyers' competitive conduct is confusing and inconsistent. As a result, business executives are uncertain as to the boundaries of legality for various types of buyer conduct.

This Article describes a comprehensive means by which the courts can analyze each of the primary means by which buyers exercise their market power. The approach utilizes a sliding scale adapted to the likely competitive effects of particular types of buyer conduct. By using such a sliding scale, the courts can limit their inquiry to the minimum level required to establish the likely effect of the relevant conduct on consumers. The approach will clarify the relevant standards of competitive behavior, deter conduct harmful to consumers, and encourage buyers to engage in conduct that benefits consumers.

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