Restoring Consumer Sovereignty: How Markets Manipulate Us and What the Law Can Do About it

ISBN : 9780190698577

Adrian Kuenzler
352 ページ
156 x 235 mm

In today's highly concentrated marketplaces, social and cultural values-such as the lifestyle connotations that manufacturers and sellers confer upon their goods-often shape consumers' prior beliefs and attitudes and affect the weight given to new information by consumers who make purchasing decisions in the marketplace. Such consumer goods present the largely unexplored problem of contemporary market regulatory theory according to which an increased amount of product differentiation has rendered everyday purchasing decisions such as the choice between an iPhone or a Samsung Galaxy Note as much a matter of personal identity rather than merely one of tangible product attributes. The basic challenge for market regulators and courts in such an environment is to make markets work effectively by providing a more efficient exchange of information about consumer preferences relating to tangible product features, functions, and quality. This book demonstrates that improved legal policy can assist consumers and increase market efficiency. It acknowledges that once particular beliefs held by consumers have become culturally or socially entrenched, they are very difficult to change. What is more, changing such beliefs is no longer simply a matter of educating people through the provision of additional information. Developing a novel framework through a detailed analysis of case law relating to consumer goods markets, this book delivers an accessible introduction to the law and economics of consumer decision-making, and a forceful critique of contemporary market regulatory policy.


Preface and Acknowledgments
A. A Brief History of Advertising
B. The Dilution Prevention Problem
C. The Restoration of Consumer Sovereignty
D. The Foundations of Distributed Capitalism
Clarification of Terms and Scope

Part One: The Dilution Prevention Problem
1 Abiding Issues
A. Perplexities of Economic Discourse
B. Three Recurrent Themes
C. Demarcation
2 Argumentation of the Courts and Contemporary Legal Scholarship
A. The Free Riding Hypothesis
B. Antitrust as Dilution Law
C. Intellectual Property as Dilution Law

Part Two: The Restoration of Consumer Sovereignty
3 Making Behavioralism Work
A. The Revealed Preferences Principle Reexamined
B. The External Incentives Paradigm Reexamined
C. Lessons for the Promotion of Progress
4 Fashioning Consumer Cognitive Capability
A. Incorporating the Manipulation of Consumer Preferences into Market Regulatory Theory
B. The Consumer as Culturally Situated Actor: A Reinvigorated Role for Antitrust and Intellectual Property Law
C. The Construction of Consumption

Part Three: The Foundations of Distributed Capitalism
5 Open Approaches to Promoting Innovation and Economic Growth
A. Open Source and Commons-Based Peer Production
B. Intellectual Property Law's 'Negative Space'
C. Spillover Effects and Modern Infrastructure Economics
D. The Rise of Collaborative Consumption
6 From Market Access to Cumulative Innovation
A. The Market Access Doctrine in Antitrust and Intellectual Property Law
B. Dissatisfaction with the Market Access Test
C. The Puzzling Persistence of the Market Access Paradigm
D. An Independent Function for Market Access

Summary of Results
A. Bifurcated Markets
B. Inclusive Property and Creative Consumption
C. The Supremacy of Consumer Sovereignty
Table of Cases


Adrian Kuenzler is an Assistant Professor in the Faculty of Law, Zurich University, and an Affiliate Fellow at the Information Society Project, Yale University Law School. He holds a Masters and a Ph.D. degree from Zurich University as well as an LL.M. and J.S.D. degree from Yale Law School. Kuenzler's primary research interests are in the fields of antitrust, intellectual property, and consumer law, as well as in behavioral law and economics.