(no subject) (fwd)

[rlande@UBmail.ubalt.edu]

  For those who asked about it - here is an 8 page version of the article
  that I co-authored which presents our proposed antitrust law.  The model
  statute appears near the end.   Unfortunately, the footnotes did not copy.
  But this should give you a rough idea of the proposal.  Comments are of
  course welcome.
  
  
           CONSUMER SOVEREIGNTY: A UNIFIED THEORY OF ANTITRUST AND
  	                 CONSUMER PROTECTION LAW
  
  	              Neil W. Averitt and Robert H. Lande
  		   
  			This is a condensation of an article 
  			by  the same name that appears in 
  			65 Antitrust Law Journal 713 (1997)  	
  
  
  	This article is about the relationship between antitrust and 
  consumer protection law.  Its purpose is to define each area of law, to 
  delineate the boundary between them, to show how they interact with each 
  other, and to show how they ultimately support one another as the two 
  component parts of an overarching unity.  	
  	That overarching unity is consumer sovereignty.  Antitrust and
  consumer protection law share a 
  common purpose in that both are intended to facilitate the exercise of 
  consumer sovereignty or effective consumer choice.  Consumer sovereignty 
  exists when two fundamental conditions are present:  one must have a 
  range of consumer options made possible through competition, and 
  consumers must be able to choose effectively among these options.
  	The boundary between antitrust and consumer protection is best 
  defined by reference to these two elements of consumer sovereignty.  The 
  antitrust laws are intended to ensure that the marketplace remains 
  competitive so that a meaningful range of options is made available to 
  consumers, unimpaired by practices such as price fixing or 
  anticompetitive mergers.  The consumer protection laws are then intended 
  to ensure that consumers can choose effectively from among those options, 
  with their critical faculties unimpaired by such violations as deception 
  or the withholding of material information.  Protection at both levels is 
  needed in order to ensure that a market economy can continue to operate 
  effectively.
  	Legal protection of this sort is required, on a practical matter, 
  only when the free market is not working properly.  "Market failures" can 
  arise, however, which may create or permit competition or consumer 
  protection problems.  This article will demonstrate that antitrust 
  violations (which impair the menu of options) stem from market failures 
  in the general marketplace external to consumers, whereas consumer 
  protection violations (which impair the individual's ability to choose) 
  flow from internal market failures that take place, in a sense, "inside 
  the consumer's head."
  	While this approach appears on its face to be of almost Doric 
  simplicity, it provides a coherent theoretical platform from which 
  antitrust and consumer protection law may be better understood and 
  applied.  
  	The development of a unified theory of consumer sovereignty not 
  only is of conceptual interest, but also has significant practical 
  consequences.  First, it can explain why the Federal Trade Commission was 
  created to have responsibility for both antitrust and consumer protection 
  issues and why it should retain this dual jurisdiction.  An awareness of 
  this relationship between the two halves of the FTC's statutory charter 
  also may be useful in identifying specific categories of cases that it, 
  rather than the Department of Justice, is best suited to handle.  Second, 
  a unified theory of antitrust and consumer protection law will assist the 
  FTC in determining when particular conduct or transactions should be 
  pursued on antitrust, as opposed to consumer protection, grounds.  Third, 
  the consumer sovereignty model we propose can help to determine when 
  borderline business practices contravene the underlying purposes of the 
  consumer protection or antitrust statutes to such a degree that they 
  warrant prosecution.  Fourth, the broad importance of marketplace options 
  in consumer sovereignty model suggests that antitrust should devote more 
  attention than it now does to the role of nonprice competition.  In 
  certain sectors of the economy--for example, high-tech or media-related 
  industries--diversity of options may be far more important to consumers 
  than price competition.  Finally, by defining the elements of consumer 
  sovereignty in an intuitively understandable way, this framework should 
  be useful to those countries that are establishing or reorganizing trade 
  regulation programs for the first time.
  	The full article is divided into five principal sections, not all 
  of which are summarized in this piece.  Part I introduces and defines the 
  concept of consumer sovereignty, and shows that it requires both the 
  availability of consumer options and the ability to choose among them.  
  Part II reviews the antitrust and consumer protection case law and shows 
  that it is consistent with (and explicable by) this option-oriented model 
  of consumer sovereignty.  Part II identifies and discusses the market 
  failures that may tend to prevent the exercise of consumer sovereignty by 
  impairing either the menu of options or consumers' capacity to select 
  among them.  Part IV then considers more complex applications of our 
  proposed theory in which the two types of protection interact in 
  simultaneous or sequential ways.  Finally, Part V explores the practical 
  implications and consequences of the proposed theoretical framework.
  
  AN OPTION-ORIENTED CONCEPT OF CONSUMER SOVEREIGNTY
  	Simply put, consumer sovereignty is the state of affairs that 
  prevails or should prevail in a modern free-market economy.  It is the 
  set of societal arrangements that cause that economy to act primarily in 
  response to the aggregate signals of consumer demand, rather than in 
  response to government directives or the preferences of individual 
  businesses.  It is the state of affairs in which the consumers are truly 
  "sovereign," in the sense of having the power to define their own wants 
  and the ability to satisfy those wants at prices not greatly in excess of 
  the costs borne by the providers of the relevant goods and services.  The 
  concept of consumer sovereignty goes so far as to embody at least some 
  implicit notions about the proper relationship between the individual and 
  the state.  It is part of the Western world's answer to the prescriptions 
  of Marxism.
  	The essence of consumer sovereignty is the exercise of choice.  
  It is by choosing some goods or some options over others that consumers 
  satisfy their own wants and send their signals to the economy.  It is 
  therefore critical that the exercise of consumer choice be protected.
  	We have already seen that effective consumer choice requires two 
  things:  options in the marketplace, and the ability to choose freely 
  among them.  In order to turn this conceptual paradigm into operational 
  policy, however, at least some rough degree of quantification is 
  required.  Just how many options must be present in the market?  Just how 
  free from external influences must consumers be?  In an imperfect world, 
  of course, the answers to these questions must be standards of 
  sufficiency rather than standards of perfection.
  	Thus, we do not simply require the maximum number of options.  
  Antitrust law does not prevent all conduct or transactions that have the 
  effect of reducing the number of options available to consumers.  Nor 
  does the law affirmatively require the creation of options.  Rather, it 
  prevents business conduct that artificially limits the natural range of 
  options in the marketplace.  Indeed, the law permits even some artificial 
  reductions, such as some mergers, if the benefits of the action appear to 
  outweigh the costs.  Through these means, the antitrust laws aim to 
  preserve a sufficient, although not a perfect, array of choices for 
  consumers.
  	Consumer protection laws are similar in the sense that they seek 
  to protect the ability of consumers to make informed choices among 
  competing options, but do not necessarily strive to ensure that consumers 
  have absolutely perfect information or that they act with absolutely 
  perfect rationality.  Probably no consumer is a perfect reasoning 
  machine, essentially free from all the extraneous influences of early 
  upbringing, cultural values, or half-remembered advertising campaigns 
  from years ago.  What we ask of consumer protection law is, therefore, 
  something relatively modest.  We ask that consumers be enabled to make 
  rational choices to the extent that they wish to concentrate on doing so. 
   Consumer protection law ensures that buyers are protected from coercion, 
  deception, and other influences that are difficult to evade or to guard 
  against, but it does not protect buyers from the milder, knowable 
  influences of things like "image" advertising, which they could set aside 
  if they desire.
  	As protected by these two principles, the exercise of consumer 
  sovereignty should be beneficial to society in a number of concrete ways. 
   It will support and lead to an efficient economic market.  That, in 
  turn, will tend to produce an environment offering the lowest prices, the 
  best product quality and variety, the highest degree of consumer surplus, 
  and all the other benefits of a competitive economy.
   market, and the consumer protection case law can explained in terms of 
  protecting consumers' ability to choose among the available options.  The 
  model that we are presenting thus becomes a means of unifying, 
  explaining, organizing, and interpreting a long line of legal precedents.
  
  COUNTRIES ESTABLISHING OR REORGANIZING TRADE REGULATION PROGRAMS CAN DO 
  SO IN A MORE BENEFICIAL MANNER
  
  	Many nations are currently deciding whether to establish trade 
  regulation programs and, if so, which legal areas should be the subject 
  of concern and how the different parts of these programs should relate to 
  one another.  The framework suggested here should help with this task, 
  and may also help the governments involved explain the program in a 
  relatively coherent way to their citizens.
  	A country could frame its trade regulation laws in terms of 
  preserving the options that competition would bring and preserving 
  meaningful consumer choice among these options.  A country writing its 
  trade laws on a clean slate might wish to express them specifically in 
  these terms.  A statute embodying this option-oriented approach could be 
  worded as follows: 
  
  		It is the national policy to foster an economy in which 
  consumers can make free choices among goods and services in a competitive 
  marketplace.  Conduct that unreasonably impairs this goal is hereby 
  declared illegal.  It is specifically illegal to engage in:  (1) A, B, C, 
  and any other conduct that unreasonably limits the range of competitive 
  options that would otherwise have been present in the market; and (2) X, 
  Y, Z, and any other conduct that unreasonably impairs consumers' ability 
  to choose among these options. 
  A legislature enacting this statute would complete it by filling in the 
  blanks for ABC, and XYZ, with those specific items that the country was 
  confident, in light of its own national experience, that it wished to 
  ban.  If the United States were using this approach, for example, it 
  would include specific bans on such things as monopolization, mergers 
  that may substantially lessen competition, and deception.
  	A statute along these lines would have several attractive 
  features.  The specific prohibitions will give the business community as 
  much notice as the nature of the subject matter permits.  At the same 
  time, the general residual clauses that are written in terms of options 
  and choice among options will preserve the flexibility necessary to deal 
  with changing conditions.  In this respect our model statute is similar 
  to a combination of the Sherman Act and the FTC Act in American law.  The 
  proposed model seems to be an improvement over the present combination in 
  two important respects, however.  First, by putting the specific and the 
  general clauses in a single statute it encourages the enforcers and the 
  judiciary to employ general principles to guide the development and 
  application of the specific prohibitions.  The statute itself, in other 
  words, will set out internal, general principles of construction that 
  will provide a context within which it is most likely that the specific 
  provisions will be interpreted in the proper manner.  Second, even the 
  general clauses are framed in a relatively objective way.  Conduct is 
  banned, not on grounds of "unfairness" (the approach used in the FTC 
  Act), which can cause considerable judicial uncertainty, but because of 
  its unreasonable effects on the exercise of consumer choice.  The 
  underlying concept of consumer choice will tend to focus the inquiry.  
  Even though the concept of "unreasonable" effects does still leave room 
  for interpretation, this uncertainty will tend to be limited to questions 
  of degree -- identifying the threshold level of net effect that becomes 
  actionable -- rather than leaving the door open to broader uncertainty 
  about what kinds of harm are improper.
  	Perhaps the greatest advantage of an option-oriented statute is 
  that it will help governments explain to their citizens -- particularly 
  those businesses and individuals who are relatively inexperienced at 
  dealing with a market economy -- why a system of competitive capitalism 
  is in their best interests.
  
  CONCLUSIONS
  	Trade regulation law is ultimately about choice, and choice is 
  ultimately about options--getting them, keeping them, and selecting among 
  them.  The disciplines of antitrust and consumer protection law are best 
  defined in terms of their roles in this process.  An antitrust violation 
  may be understood as an activity that unreasonably distorts or restricts 
  the options that otherwise would be available to consumers.  A consumer 
  protection violation may be understood as activity that unreasonably 
  interferes with consumer choice among the options provided in the 
  marketplace.  These two fields of law, acting together, give consumers 
  the tools they need effectively to exercise consumer sovereignty.
  	A number of benefits should flow from this unified conception of 
  the trade regulation laws.  It should make lawyers practicing in these 
  disciplines more alert to the possibility that a case focusing on one 
  element of consumer sovereignty will also raise issues involving the 
  other element.  It may also remind practitioners that a violation under 
  one half of the consumer sovereignty model might sometimes best be 
  remedied by a solution that deals with factors normally considered in 
  actions under the other half.  It also suggests that economists 
  practicing primarily in one field should gain insights from the other.  
  Both types of market failures seem to be of equal importance, so both 
  would seem equally deserving of professional study.
  	The final purpose of this article has been to help focus the 
  attention of both fields on options, a shift in focus from the current 
  administrative and judicial emphasis on price.  Although price 
  competition often is of utmost importance to consumer welfare, so too is 
  the variety, quality, and innovation of products.  These attributes have 
  sometimes been treated as afterthoughts when they actually should be at 
  the forefront of debate and analysis in this important area of the law.