Law Commons^™

Consumer Perceptions Of The Right To Repair, Aaron Perzanowski

Indiana Law Journal

Part I of this Article details the strategies upon which device makers rely to frustrate repair. Part II considers legislative interventions intended to push back on existing barriers to repair, with a particular focus on the set of bills introduced in state legislatures across the United States. Part III describes the results of a survey of more than 800 U.S. consumers, focusing on their expectations of and experiences with the repair of electronic devices. The legal and policy implications of those results are discussed in Part IV.

Deceptively Simple: The Arkansas Deceptive Trade Practices Act, Margaret E. Rushing

Arkansas Law Review

In the 2017 legislative session, the Arkansas General Assembly significantly changed the Arkansas Deceptive Trade Practices Act (“ADTPA”). These changes now prohibit private class actions under the ADTPA and require plaintiffs to prove additional elements of reliance and actual financial loss when bringing a claim. The changes appear to limit the ability of a consumer to bring a private action under the ADPTA. With these changes, Arkansas joins a minority of jurisdictions with deceptive trade practices acts that increase a plaintiff’s burden and restrict private class actions.

Crafting Next Generation Eco-Label Policy, Jason J. Czarnezki, Katrina F. Kuh

Elisabeth Haub School of Law Faculty Publications

Eco-labels present a promising policy tool in the effort to achieve sustainable consumption. Many questions remain, however, about the extent to which eco-labels can contribute to sustainability efforts and how to maximize their effectiveness. This Article deploys research from evolutionary psychology, behavioral law and economics, and norm theory to offer specific insights for the design and implementation of eco-labels to enhance their influence on sustainable consumer choice. Notably, this research suggests possibilities for eco-labels to shape or expand consumer preferences for green goods, and thereby enhance eco-label influence on consumer behavior by extending it beyond eco-minded consumers. We suggest that …

Incentive Regulation, New Business Models, And The Transformation Of The Electric Power Industry, Inara Scott

Michigan Journal of Environmental & Administrative Law

The electric utility sector is in the midst of paradigmatic change. Market forces include decreased load growth, technological advances in distributed energy resources, pressures for decarbonization, and demands for increased efficiency and new utility services. Meanwhile, as the utility monopoly is undermined and profits slow, financial analysts signal increasing risk to potential utility investors. Suggestions for transforming the existing regulatory structure abound. At the broadest level, such proposals reflect an established divide between energy policy, which traditionally focuses on economics and markets, and environmental law, which is based in the protection of natural resources and ecosystems. To marry the two …

Antitrust And Wealth Inequality, Daniel Crane

Articles

In recent years, progressive public intellectuals and prominent scholars have asserted that monopoly power lies at the root of wealth inequality and that increases in antitrust enforcement are necessary to stem its rising tide. This claim is misguided. Exercises of market power have complex, crosscutting effects that undermine the generality of the monopoly regressivity claim. Contrary to what the regressivity critics assume, wealthy shareholders and senior corporate executives do not capture the preponderance of monopoly rents. Such profits are broadly shared within and dissipated outside the firm. Further, many of the subjects of antitrust law are middle-class professionals, sole proprietors, …

Derivative Works 2.0: Reconsidering Transformative Use In The Age Of Crowdsourced Creation, Jacqueline D. Lipton, John Tehranian

Articles

Apple invites us to “Rip. Mix. Burn.” while Sony exhorts us to “make.believe.” Digital service providers enable us to create new forms of derivative work — work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement …

A Comprehensive Economic And Legal Analysis Of Tying Arrangements, Guy Sagi

Seattle University Law Review

The law of tying arrangements as it stands does not correspond with modern economic analysis. Therefore, and because tying arrangements are so widely common, the law is expected to change and extensive academic writing is currently attempting to guide its way. In tying arrangements, monopolistic firms coerce consumers to buy additional products or services beyond what they intended to purchase. This pressure can be applied because a consumer in a monopolistic market does not have the alternative to buy the product or service from a competing firm. In the absence of such choice, the monopolistic firm can allegedly force the …

Rationality's Reach, Adam B. Badawi

Michigan Law Review

Economic analysis and the rational actor model have dominated contracts scholarship for at least a generation. In the past fifteen years or so, however, a group of behaviorists has challenged the ability of the rational choice model to account for consumer behavior. These behaviorists are not trying to dismantle the entire enterprise. They generally accept the fundamentals of economic analysis but argue that the rational actor model can be improved by incorporating evidence of decisionmaking flaws that people exhibit. Oren Bar-Gill has been one of the foremost and influential proponents of a behaviorist take on contracts, and his recent book, …

Comparative Effectiveness Research As Choice Architecture: The Behavioral Law And Economics Solution To The Health Care Cost Crisis, Russell Korobkin

Michigan Law Review

With the Patient Protection and Affordable Care Act (“ACA”) set to dramatically increase access to medical care, the problem of rising costs will move center stage in health law and policy discussions. “Consumer directed health care” proposals, which provide patients with financial incentives to equate marginal costs and benefits of care at the point of treatment, demand more decisionmaking ability from consumers than is plausible due to bounded rationality. Proposals that seek to change the incentives of health care providers threaten to create conflicts of interest between doctors and patients. New approaches are desperately needed. This Article proposes a government-facilitated …

Consumer Choice As The Best Way To Describe The Goals Of Competition Law, Robert H. Lande

All Faculty Scholarship

This article is both a short introduction to the Consumer Choice explanation for Competition Law or Antitrust Law, and also a short advocacy piece suggesting that Consumer Choice is the best way to articulate the goals of European Competition Law and United States Antitrust Law.

This article briefly:

1. defines the consumer choice approach to antitrust or competition law and shows how it differs from other approaches;
2. shows that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice;
3. shows that the United States antitrust case law embodies a concern for optimal levels of consumer …

Tying Arrangements And Antitrust Harm, Erik Hovenkamp, Herbert J. Hovenkamp

All Faculty Scholarship

A tying arrangement is a seller’s requirement that a customer may purchase its “tying” product only by taking its “tied” product. In a variable proportion tie the purchaser can vary the amount of the tied product. For example, a customer might purchase a single printer, but either a contract or technological design requires the purchase of varying numbers of printer cartridges from the same manufacturer.

Such arrangements are widely considered to be price discrimination devices, but their economic effects have been controversial. Tying has been attacked on the theory that price discrimination of this sort reduces consumer welfare. We show …

Proposed Legislation: A (Second) Modest Proposal To Protect Virginia Consumers Against Defective Products, Peter Nash Swisher

University of Richmond Law Review

The purpose of this article is to suggest a viable, necessary, and eminently reasonable legislative alternative that the Virginia General Assembly should enact for legitimate and pressing public policy reasons in order to properly protect Virginia consumers from defective and unreasonably dangerous consumer products.Adopting this alternative would bring the Commonwealth of Virginia into the mainstream of twenty-first century American, and transnational, products liability law.

E-Contract Doctrine 2.0: Standard Form Contracting In The Age Of Online User Participation , Shmuel I. Becher, Tal Z. Zarsky

Michigan Telecommunications & Technology Law Review

The growing popularity of e-commerce transactions revives the perennial question of consumer contract law: should non-salient provisions of consumer standard form contracts be enforced? With the focus presently on an ex-ante analysis, scholars debate whether consumers can and should read standardized terms at the time of contracting. In today's information age, such a focus might be misguided. The online realm furnishes various tools, so-called "Web 2.0" applications, which encourage the flow of information from experienced to prospective consumers. This Article, therefore, reframes the analysis of online consumer contracts while taking into account this new flow of information. In doing so, …

The Debt Dilemma, Katherine Porter

Michigan Law Review

Part I describes the nature of credit card spending and explores the usefulness of Mann's comparative approach to studying credit cards. Part II evaluates Mann's findings on the overall relationships between individual credit card transactions and aggregate levels of spending, borrowing, and bankruptcy. It also briefly analyzes the relationship between his findings and policy recommendations. Part III explores data on families who refrain from credit card use and struggle with serious financial distress. Part IV revisits Mann's policy recommendations in light of this new data. I conclude that implementing credit card reform would offer families only partial, albeit valuable, protection …

Brand New Deal: The Branding Effect Of Corporate Deal Structures, Victor Fleischer

Michigan Law Review

Consider the unusual legal structures of the following four deals: When Google went public in 2004, it used an Internet auction to sell its stock to shareholders. When Ben & Jerry's went public in 1984, it sold its stock only to Vermont residents. Steve Jobs's contract with Apple entitles him to an annual cash salary of exactly one dollar. Stanley Works, a Connecticut toolmaker, considered reincorporating in Bermuda to reduce its tax liability. Under public pressure, it changed its mind and remains legally incorporated in Connecticut. What do these deals have in common? In each case, the legal infrastructure of …

One-Sided Contracts In Competitive Consumer Markets, Lucian A. Bebchuk, Richard A. Posner

Michigan Law Review

The usual assumption in economic analysis of law is that in a competitive market without informational asymmetries, the terms of contracts between sellers and buyers will be optimal-that is, that any deviation from these terms would impose expected costs on one party that exceed benefits to the other. But could there be cases in which "one-sided" contracts containing terms that impose a greater expected cost on one side than benefit on the other-would be found in competitive markets even in the absence of fraud, prohibitive information costs, or other market imperfections? That is the possibility we explore in this Article.

A Normative Analysis Of New Financially Engineered Derivatives, Peter H. Huang

Publications

This Article analyzes whether the introduction of new derivative assets makes a society better or worse off. Because trading such non-redundant derivatives produces new distributions of income across time and over possible future contingencies, individuals can utilize such financial instruments to hedge risks not possible before the introduction of these assets. Thus, it may seem that new derivatives unambiguously benefit society. In fact, introducing sufficiently many new derivatives completes asset markets. Asset markets are complete if trading on them can attain every possible payoff pattern of wealth across time and over possible future contingencies. The first fundamental theorem of welfare …

Commentary: Implications Of Professor Scherer's Research For The Future Of Antitrust, Robert H. Lande

All Faculty Scholarship

One way to test the accuracy of Professor Scherer's research is to compare it to the best previous work in the area. Prior to his current article the best analysis of the state of economic thinking and knowledge during antitrust's formative period was presented twelve years ago by—Professor Scherer. This was a skeletal precurser to the well-documented version that he now presents, but his overall conclusions are identical. During the twelve years since his conclusions were presented in the Yale Law Journal no one has demonstrated that his research is in any way faulty or misleading, even though many have …

The First-Party Insurance Externality: An Economic Justification For Enterprise Liability, Jon D. Hanson, Kyle D. Logue

Articles

This Article explores the insurance and deterrence implications of important and long overlooked facts. Consumers are insured through first-party mechanisms against most of the risks of product accidents. However, first-party insurers rarely and imperfectly adjust premiums according to an individual consumer's decisions concerning exactly what products she will purchase, how many of those products she will purchase, and how carefully she will consume them. Such consumer decisions we refer to as "consumption choices. " This failure by first-party insurers to adjust premiums according to consumption choices gives rise to a first-party insurance externality. Based on this insight, this Article offers …

Do The Doj Vertical Restraints Guidelines Provide Guidance?, Alan A. Fisher Ph.D., Frederick I. Johnson, Robert H. Lande

All Faculty Scholarship

Vertical restraints come in a glittering menu of exceptional variety, including resale price maintenance (RPM), tying, exclusive dealing, requirements contracts, "best efforts" clauses, full-line forcing, airtight and nonairtight exclusive territories, customer restrictions, areas of primary responsibility, profit-passover provisions, restrictions on locations of outlets, and dual distribution. Firms sometimes combine vertical restraints into packages. The great variety of individual and combined vertical restraints complicates the discovery of market effects. Indeed, identifying what restraint(s) a given firm is using at any particular time can be difficult.

Consumer Beware Chicago, Eleanor M. Fox

Michigan Law Review

Professor Hovenkamp's article, Antitrust Policy After Chicago, reveals an important truth. Chicago School economics does not provide a superior roadmap to efficiency. I would take the critique one step further and assert: The main gap between Chicago and its critics is not even the design of the roadmap to efficiency. The main gap is social and political philosophy.

Rhetoric And Skepticism In Antitrust Argument, Herbert Hovenkamp

Michigan Law Review

In his essay on Workable Antitrust Policy Judge Easterbrook professes an extraordinary skepticism about economic models in general, and particularly about the ability of courts to use economic models to distinguish the competitive from the anticompetitive. But a profession of skepticism is itself a very powerful rhetorical device; it creates a perception of tough-mindedness, of refusal to yield real-world observations to analytic models or other abstractions, of extreme reluctance to accept any proposition that has not been clearly proven. Further, it is always very easy to be a skeptic, because every position ever taken except perhaps for a few tautologies …

Workable Antitrust Policy, Frank H. Easterbrook

Michigan Law Review

One of the schools of thought in the economics of antitrust was called "workable competition." The adherents to this school believed that markets were prone to cartelization and that concentration was death on competition, but that occasionally competition might prove "workable." These scholars were suspicious of almost every industrial practice they saw. One of the manifestations of their work came to be known as the "structure-conduct-performance paradigm." The thesis was that you could tell whether competition was feasible from the structure of the market. If the top four firms had fifty percent or so of the sales, we should abandon …

Fishing And Selling, Victor P. Goldberg

Faculty Scholarship

Consumers are a lot like fish, out there waiting to be hooked. Like most images, this one is a caricature of reality. The choice and search effort of consumers is suppressed in order to explore the implications of selling activity by manufacturers and retailers. In particular, the fishing analogy suggests that there is a tendency toward excessive selling activity if sellers do not take into account the effects of their activity on the costs of their rivals. However, sellers, like fishermen, have an incentive to arrange their affairs to mitigate the dissipation of rents. This argument is developed in Section …

Agenda: Natural Gas Symposium: Contract Solutions For The Future Of Regulatory Environment, University Of Colorado Boulder. Natural Resources Law Center, University Of Houston. Law Center

Natural Gas Symposium: Contract Solutions for the Future of Regulatory Environment (March 24-25)

Contents:

The natural gas industry in transition / Ruth A. Maurer -- Legislative prospects for wellhead pricing of natural gas / Richard G. Morgan -- Off-system sales : will they ever return? : the interstate side / Robert C. McHugh -- Off-system sales : will they ever return? / Paul F. O'Konski -- Contractual and other considerations affecting producers, pipelines and distributors during current period of market demand constraints / Michael J. Manning -- Section 311 and 312 of the Natural Gas Policy Act of 1978 and Hinshaw pipelines / Lauren Eaton -- Drafting and interpreting sensitive gas purchase contract …

Off-System Sales – Will They Ever Return? (The Interstate Side), Robert C. Mchugh

Natural Gas Symposium: Contract Solutions for the Future of Regulatory Environment (March 24-25)

27 pages (includes illustrations).

Contains 2 pages of references.

Contains 1 attachment.