Consumer Protection Law Commons^™

Standard Terms Contracting In The Global Electronic Age: European Alternatives, James Maxeiner

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This article examines American, European Union and German standard terms laws from an American perspective. It considers not only current law, but significant aspects of the development of these bodies of law. It sets out general issues involved in standard terms laws and summarizes American law. It notes the origin of American concepts in Europe and examines standard terms in the struggle over revision of the Uniform Commercial Code. It looks at the law of the European Union and its origin in the consumer movement. It considers in detail the law of one Member State as an example, that of …

Products Liability Harmonization: A Uniform Standard, Rebecca Korzec

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Among industrialized nations, the United States is unique in addressing tort law at the state rather than the national level. For example, Australia and Canada, which share a common-law heritage with the United States, have federal tort systems. The United States approach may be appropriate in some tort settings, such as in the premises liability or motor vehicle accident context (not involving a claim of products liability), where the state rule’s impact remains within that state’s geographical boundaries. Unlike the simple 'fender-bender', which occurs within the borders of one state, the typical product is manufactured and marketed nationally or internationally. …

Why Are We So Reluctant To "Execute" Microsoft?, Robert H. Lande

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On June 28, 2001, the D.C. Court of Appeals held that Microsoft has violated the antitrust laws repeatedly, relentlessly, and over a multi-year period. The court ruled eight separate times that Microsoft engaged in conduct that illegally maintained its monopoly in PC operating systems. Despite these strongly worded conclusions concerning Microsoft’s liability, the court was extremely cautious when it considered whether to break up the company. It held that divestiture was a “radical” remedy that should be imposed with “great caution.”

The Perfect Caper?: Private Damages And The Microsoft Case, Robert H. Lande, James Langenfeld

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As readers of crime novels know, there are many definitions of the perfect caper. Under most, the perpetrator gets to keep its ill-gotten gains and goes unpunished. Even if the perpetrator is arrested and brought to trial, he or she still typically escapes punishment completely due to a variety of unusual circumstances. This is essentially what Professors John E. Lopatka and William H. Page are arguing about Microsoft's actions. They assert that even though Microsoft has violated the antitrust laws, it will not be made to pay for its anticompetitive conduct, at least not by private plaintiffs.

Consumer Choice As The Ultimate Goal Of Antitrust, Robert H. Lande

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The mission of the antitrust laws need to be clarified, and this article asserts that the best way to do this is to interpret and enforce these laws in terms of consumer choice. This reformulation is necessary due to uncertainty and instability that exists in the field. This article will 1. define the consumer choice approach to antitrust or competition law and show how it differs from other approaches; 2. show that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice; 3. show that the antitrust case law embodies a concern for optimal …

Resurrecting Incipiency: From Von's Grocery To Consumer Choice, Robert H. Lande

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The merger incipiency doctrine is virtually ignored in the courts today. This article argues that it should be resurrected, and it also explores the ways that effectuating Congressional intent in the area would reinvigorate merger policy.

The article documents how the legislative history of the antimerger statutes shows that Congress intended mergers to be evaluated under an incipiency approach, and explores the possible meanings of this idea. It then shows that this is a strong basis for reviving significantly stricter or more prophylactic merger enforcement.

The article shows how there are aspects of the doctrine that could be revived without …

Legalizing Merger To Monopoly And Higher Prices: The Canadian Competition Tribunal Gets It Wrong, Alan A. Fisher Ph.D., Robert H. Lande, Stephen F. Ross

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This article analyzes the Canadian Superior Propane decision, apparently the first merger decision in world history to consider explicitly what to do when a merger was predicted to lead to both higher consumer prices and to net efficiencies. The article advocates analyzing the merger under a "price to consumers" or "consumer welfare" standard, rather than a total efficiency standard, and advocates that the enforcers and the courts block such mergers.

Dashing Consumer Hopes: Strict Products Liability And The Demise Of The Consumer Expectations Test, Rebecca Korzec

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The threshold issue in American products liability litigation is whether the product was defective at the time it left the manufacturer's control. Traditionally, courts and scholars define “defect” in three functional categories: manufacturing defects, design defects and marketing defects. American products liability doctrine employs two major tests to determine whether a "defect” exists: the seller-oriented risk-utility test and the buyer-oriented consumer expectations test. The Draft of the Restatement Third of Torts: Products Liability, like some American jurisdictions, rejects the “consumer expectations” test as an independent standard in defective warning and design cases. Ironically, this limitation of the use of the …

Consumer Choice: The Practical Reason For Both Antitrust And Consumer Protection Law, Neil W. Averitt, Robert H. Lande

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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 components of a single overarching unity. That overarching unity is consumer choice. 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. Such consumer choice exists when two fundamental conditions are present: (l) there must be a range …

Consumer Sovereignty: A Unified Theory Of Antitrust And Consumer Protection Law, Neil W. Averitt, Robert H. Lande

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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: effective consumer choice (also called consumer sovereignty).

Consumer choice only is effective when two fundamental conditions are present. There must be a range of consumer options made possible through competition, and consumers must be able to choose effectively among these options. The antitrust laws are intended to …

Anticonsumer Effects Of Union Mergers: An Antiitrust Solution, Robert H. Lande, Richard O. Zerbe Jr.

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Should unions and corporations be treated identically under the antitrust laws? This article explores this provocative question by examining whether union mergers should be subject to the antitrust laws. Currently unions and corporations are treated very differently. Large corporate mergers are blocked if their effect "may be substantially to lessen competition, or to tend to create a monopoly". They are permitted if they are likely to be benign, procompetitive, or proconsumer.

Collective bargaining, by contrast, enjoys a broad exemption from the antitrust laws. If they follow appropriate procedures, unions - even unions that, when taken together, cover all workers within …

The Reunification Of Contract: The Objective Theory Of Consumer Form Contracts, Michael I. Meyerson

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Despite the ubiquitousness of standard form contracts in the world of consumer transactions, there is no consensus as to how these contracts ought to be constructed. Some courts continue to treat form contracts as if they were classically negotiated contracts. Others attempt in a variety of ways to factor in the reality that consumers entering into these contracts are not able to negotiate the terms and almost always sign these documents, which are presented on a take-it-or-leave-it basis, without reading them. This article posits that the cause of this continued confusion over form contracts is due to a basic failure …

The Efficient Consumer Form Contract: Law And Economics Meet The Real World, Michael I. Meyerson

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"Law and economics" has been hailed by its supporters as the only intellectually valid means for analyzing legal issues. Its critics have dismissed law and economics as amoral and biased against the poor. Ironically, each side in this frequently acrimonious debate has much to offer those in the opposing camp. This Article reflects a modest attempt to bridge the chasm.

One need not believe that money is everything in order to believe that the effect a given legal rule has on total societal wealth is relevant in decisionmaking. But this admission does not consign one to a legal world where …

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

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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.

Developing Rational Standards For An Advertising Subsitution Policy, Charles Shafer

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American annual consumer expenditures of nearly two trillion dollars involve approximately sixty-four percent of the country's Gross National Product. A substantial portion of those consumer purchases result in some sort of dissatisfaction. The term 'consumer dissatisfaction’ represents a large continuum of feelings ranging from mild disappointment to all consuming rage. Consumer dissatisfaction is a serious societal problem for a variety of reasons. It indicates a misallocation of scarce resources. It can be a significant factor in producing the perception that the economic and political institutions are unfair, ineffective, or unresponsive. That perception can have wide ranging political ramifications. Finally, it …

Wealth Transfers As The Original And Primary Concern Of Antitrust: The Efficiency Interpretation Challenged, Robert H. Lande

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Chicago School antitrust policy rests upon the premise that the sole purpose of antitrust is to promote economic efficiency. This article shows that this foundation is flawed. The fundamental purpose of antitrust is to protect consumers. To protect purchasers from paying supracompetitive prices when they buy goods or services. This is the "wealth transfer," "theft", "consumer welfare" or "purchaser protection" explanation for antitrust.

The article shows that the efficiency view originated in a detailed analysis of the legislative history of the Sherman Act undertaken by Robert Bork. Bork purported to show that Congress only cared about enhancing economic efficiency.

To …