Toward a Per Se Rule against Price Gouging

CPI Antitrust Chronicle (September 2020)

10 Pages Posted:

See all articles by Ramsi Woodcock

Ramsi Woodcock

University of Kentucky College of Law

Date Written: September 23, 2020

Abstract

Price gouging is the use of high prices to ration access to a good in unexpectedly short supply. Because sellers can always recoup their costs by choosing not to ration with price and instead allowing the good to sell out, price gouging harms consumers: it transfers wealth from consumers to firms unnecessarily. This harm to consumers could violate the antitrust laws in two ways. First, it could serve as the basis for a per se rule against algorithmic price gouging—surge pricing—because the superhuman speeds with which surge pricing algorithms respond to shortages effectively shorten the period during which the effects of competition in the pre-shortage period continue to discipline prices during the shortage, and that should satisfy antitrust’s anticompetitive conduct requirement. Second, price gouging’s harmfulness to consumers could serve as the basis for an antitrust prohibition on all price gouging were antitrust at last to take its consumer welfare standard seriously and prohibit consumer-harmful pricing even when not accompanied by anticompetitive conduct.

Keywords: antitrust, price gouging, per se rule, consumer welfare, price fixing, excessive pricing

JEL Classification: D40, D46, D60, L40

Suggested Citation

Woodcock, Ramsi, Toward a Per Se Rule against Price Gouging (September 23, 2020). CPI Antitrust Chronicle (September 2020), Available at SSRN: https://ssrn.com/abstract=

Ramsi Woodcock (Contact Author)

University of Kentucky College of Law ( email )

620 S. Limestone Street
Lexington, KY 40506-0048
United States

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