Restoring Consumer Sovereignty

How Markets Manipulate Us and What the Law Can Do About It

Adrian Kuenzler

Demonstrates that improved legal policy can assist consumers and increase market efficiency
Develops a novel set of responses to problems of consumer sovereignty by drawing from primary source behavioral and experimental economic work
Explores the growing amount of advertising and marketing of goods and services in a time and age where product manufacturers and sellers often know more about consumers than consumers know about themselves
Matches a large amount of trademark law scholarship to the notion of what constitutes trademark dilution with similar accounts analyzing the idea of protecting the 'prestige' of everyday goods across the entire span of intellectual property and antitrust laws
Uses examples from the digital economy to illustrate the way in which consumers exhibit preferences for collaborative consumption
Contains a comprehensive analysis of recent U.S. case law and makes reference to European legal doctrine repeatedly

Restoring Consumer Sovereignty

How Markets Manipulate Us and What the Law Can Do About It

Adrian Kuenzler

Description

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.

Restoring Consumer Sovereignty

How Markets Manipulate Us and What the Law Can Do About It

Adrian Kuenzler

Preface and Acknowledgments

Introduction
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
Conclusion

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
Conclusion

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
Conclusion

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

Bibliography

Table of Cases

Index

Restoring Consumer Sovereignty

How Markets Manipulate Us and What the Law Can Do About It

Adrian Kuenzler

Author Information

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.

Restoring Consumer Sovereignty

How Markets Manipulate Us and What the Law Can Do About It

Adrian Kuenzler

Reviews and Awards

"Behavioral law and economics has long been limited by the unwillingness of scholars to take on the full implications of the constructedness of markets and preferences. In this impressive book, Professor Kuenzler does just that. His effort signals the beginning of a new and vital conversation for legal theory." Douglas A. Kysar, Joseph M. Field '55 Professor of Law, Yale University Law School

"Adrian Kuenzler has written a subtle, idea-packed book uniting key strains of modern antitrust and intellectual property thinking. He challenges the conventional wisdom in antitrust law by drawing on the lessons of trademark law and the modern shift to protecting brands as valuable assets, above and beyond the physical characteristics of the products and services sold under those brands. In a society of experiences, consumers whose preferences are not fixed and stable need competition to enable those experiences, and the ability to deliberate about what product features to truly value. Kuenzler's analysis brings economic, psychological, and legal thought together to suggest a better path forward for competition and consumer sovereignty." Rebecca Tushnet, Professor of Law, Harvard University Law School

"Adrian Kuenzler's remarkable book uses insights from behavioral law and economics to offer a new perspective on the role of antitrust and intellectual property law in our modern digital economy. He offers challenging insights into ways in which market regulatory policy can support and enhance consumer sovereignty." - Daniel L. Rubinfeld, Robert L. Bridges Professor of Law and Professor of Economics Emeritus, UC Berkeley, and Professor of Law, NYU

Restoring Consumer Sovereignty

How Markets Manipulate Us and What the Law Can Do About It

Adrian Kuenzler

From Our Blog

Reciprocal loyalty in consumer transactions

Conventional wisdom holds that the interplay of demand and supply of goods in a free market economy, as if through an invisible hand, provides us with material wealth. This vantage point is based on Adam Smith's reference to an economy where most of mankind lived in small communities, where self-interest was restrained by a desire to be esteemed by others, and personal relationships bound overweening opportunism.

Posted on August 27, 2018

Read the blog post

Cognitive biases and the implications of Big Data

Big Data analytics have become pervasive in today's economy. While they produce countless novelties for businesses and consumers, they have led to increasing concerns about privacy, behavioral manipulations, and even job losses. But the handling of vast quantities of data is anything but new.

Posted on October 10, 2017

Read the blog post