Problematising Supermarket-Supplier Relations: Dual Discourses of Competition and Fairness

The power asymmetryies that exists between major supermarket chains and suppliers, in Australia and abroad, have has been analysed largely through an economic-legal lens, focussed predominantly on consumer prices. This article takes a wider stance, considering the economic and then the social discourses that arise in response to the supermarket-supplier relationship, before examining how such discourses shape regulatory responses. We find that the two are not, as they appear on first blush, disconnected or in conflict. Rather, as with many socio-economic interactions, they are connected and interdependent. Applying a problematisation analysis, we interrogate the underlying assumptions and question the ways in which the issues relating to the imbalance in bargaining power between major supermarkets and suppliers are framed in mainstream policy debates, and then consider the implications. On our analysis, the problem that this imbalance is seen to pose has dimensions of both competition and fairness, creating challenges that require a range of responses. It is thus a problem that can be tackled by appealing to the traditional platforms of both the left and right of politics. A dual discourse also facilitates effective political risk management. While a neoliberal approach allows government to be seen as promoting competition to maximise efficiencies and consumer welfare, tough measures on socially unacceptable behaviour enables government to align with important social-cultural values.

Caron Beaton-Wells and Jo Paul, 'Problematising Supermarket-Supplier Relations: Dual Discourses of Competition and Fairness' (2017) Griffiths Law Review (forthcoming)

Identifying Anticompetitive Agreements in the United States and the European Union: Developing a Coherent Antitrust Analytical Framework

Commentary in both the US and the EU has repeatedly debated whether, and when, it is more efficient to use “rules” or “standards” to determine the legality of conduct subject to the antitrust laws and how such rules or standards should be formulated. This paper concentrates principally on the question of how this debate impacts on the analytical framework for identifying infringing agreements in the US and EU. It sets out the view that the question of how agreements are to be assessed under both the US and the EU jurisprudence is unduly opaque. Confusion as to, in particular, the role and scope of per se rules, the role and scope of ancillary restraint doctrines, and how competing anti- and procompetitive effects of mixed agreements are to be balanced against each other have led to excessive complexity in the system. The paper considers what factors might shape development of a coherent and optimal framework for antitrust analysis in a jurisdiction. Once these factors have been set out, it examines how US and EU competition law have approached the issues identified in relation to the appraisal of agreements and what features of each system have moulded the developments there. It concludes that both systems require some development to create more intelligible frameworks based on common concepts rather than historical categories of antitrust analysis and, further, that competition agencies could play an important part as catalysts in this progress.

[2017] Antitrust Bulletin, Forthcoming TLI Think! Paper 57/2017 GWU Law School Public Law Research Paper No. 2017-12 GWU Legal Studies Research Paper No. 2017-12 King's College London Law School Research Paper No. 2017-17

Regulatory Avoidance and Suicide: An Empirical Analysis

This article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists — the very defendants who would seem best able to prevent suicide. Using a 50-state panel regression for 1981 to 2013, we find that states that would hold psychiatrists (but not other doctors) liable for malpractice resulting in a suicide experienced a 12.8% increase in suicides. The effect is even stronger, 16.8%, when we include controls. We do not believe this is because suicide prevention doesn’t work. Rather, we theorize that it is because some psychiatrists facing potential liability choose not to work with patients at high risk for suicide. The article makes important contributions to the law of proximate cause and to the more general phenomenon of regulatory avoidance. Traditionally, one could not be liable for malpractice that causes another’s suicide — the suicide was considered a superseding and intervening cause. About half of states retain the old common law rule. Others have created exceptions for psychiatrists only, or for all doctors, and some have abandoned the old rule entirely. Our findings suggest that expanding liability for psychiatrists may have an adverse affect. Accordingly, this article suggests that the best policy might be to retain or revive the traditional no-liability-for-suicide rule for mental health specialists. The implications are enormous: over 40,000 people in the United States die each year from suicide. Keywords: torts, suicide JEL Classification: K13, K32, I18

Indiana Law Journal (forthcoming 2017)

Causation Actually

The article debunks the consensus that in concerted action, concurrent causes and alternative liability situations, the actual causation requirement is missing. While courts and scholars insist that in these cases tort law holds liable parties who clearly did not cause the victim’s harm, this article offers a novel approach. Using a simple model and applying it to leading decisions, it shows that a party who did not and could not even potentially injure the victim could nevertheless be a but-for reason for the harm. The article also challenges claims that causation theories like concerted action, substantial factor and alternative liability are fair to the victim or that they are designed to deter actors from engaging in “antisocial” activities. In deviation from the prior literature, this article reveals that these causation theories reduce the parties’ incentives to take care and result in more, rather than fewer, accidents. This article further shows that, despite lip service to the contrary, tort law promotes harmful activities that judges declare immoral, antisocial and illegal. The article argues, however, that in many cases this result can be justified on efficiency grounds. The article concludes that the but-for test should have a larger role in causation analysis, and it provides a number of policy recommendations to courts and lawmakers. Keywords: actual causation, concerted action, concurrent causes, alternative liability, but-for, substantial factor, NESS, efficiency, welfare, fairness, deterrence

51 Georgia Law Rev. 1 (2016) (Lead Article)


This Article argues that mass torts involving multiple tortfeasors can be welfare enhancing. It begins by investigating the role of “dilution of liability” — a phenomenon that has been condemned for its role in facilitating accidents. According to the literature, in alternative care situations where the damage to the victim is constant, dilution of liability leads to inefficient precaution levels and consequently to more (bad) accidents. The Article deviates from this literature and shows that dilution of liability can be welfare enhancing. This is so even in the quintessential case where dilution of liability has been denounced. The Article further shows that an activity that is socially undesirable and should give rise to liability can become desirable as the number of tortfeasors increases. Put differently, it shows that in some situations an activity that would and should be condemned if conducted by one tortfeasor may become socially desirable if done by many. The Article analyzes the conditions under which such desirable “tortfests” occur, and it has important implications to the salience literature. After investigating the impact of tortfests on actors’ precaution and activity levels, the Article examines mechanisms that would incentivize actors, in certain situations, to join a group wrongdoing or combine with others to initiate one. The result, it is argued, could increase societal welfare. Keywords: tortfest, mass torts, dilution of liability, salience, alternative care, collusion, punitive damages, activity levels, precaution levels, economic analysis JEL Classification: A12, D20, D61, D72, K13

80 U. Chi. L. Rev. 953 (2013)

Apportioning Liability Behind a Veil of Uncertainty

This article challenges the reason that led most states to abandon the “no contribution” rule. Under the rule if a victim obtains a judgment against two tortfeasors but chooses (even arbitrarily or out of spite) to recover only from one, the “chosen one” must pay the entire judgment while the other is exempt although both are liable. This is the case even if the paying tortfeasor is only 1% at fault while the non-paying tortfeasor is 99% at fault. The rule has been lamented by tort reform crusaders as immoral and unfair. One tortfeasor, the argument goes, should not bear the entire burden while the more culpable tortfeasor is exempted from liability. In deviation from the prior literature, the article employs economic theory to show that the “no contribution” rule that has been crowned as efficient is fair and just. It adopts a contractarian approach to analyze different apportionment regimes including joint and several liability (with and without contribution), several liability and market share liability. Relying on modern decision theory the article shows that individuals behind a veil of ignorance, unaware as to whether they would be victims or injurers may in fact choose the much criticized "no contribution" rule. In doing so the article sheds new light on a fierce and ongoing debate and concludes with a new framework for analyzing apportionment policies. Keywords: Apportionment, Contribution, Joint and Several Liability, Market Share Liability, Rawls, Veil of Ignorance, Harsanyi, Fairness, Justice, Economic Analysis JEL Classification: K13, D61, D63, D31, A12, A13

62 Hastings L. J. 1729 (2011)

Predatory Bundling and the Exclusionary Standard

Recent decisions - all relying on a stylized example first provided by the Ortho court - hold that a multi-product seller that uses a bundled discount in a way that excludes an equally or more efficient competitor engages in predatory bundling. According to these decisions, a bundle can be considered predatory even when the price of the bundle exceeds its cost. The article offers evidence demonstrating that the Ortho's stylized example and its monopoly leveraging theory are erroneous. The article further shows that even when a bundle's price excludes more efficient competitors and even when a component in the bundle is priced below cost, and thus sold at a loss, it may still have welfare enhancing effects. The result is that bundles that fail the discount allocation test and even bundles that fail the Brooke Group test may still be desirable. The article provides a number of examples from the airline and telecommunication industries to illustrate that both exclusionary and below cost bundles can be not only welfare enhancing, but also very common. Keywords: Predatory Bundling, Bundled Discount, Package Discount, Predatory Pricing, Exclusionary Behavior, Antitrust, Industrial Organization JEL Classification: K21, L12, L41, L42

67 Wash & Lee L. Rev. 1231 (2010) (Lead Article)

Trademarks as a Media for False Advertising

This Article explores an unnoticed aspect of trademark law which in some instances may constitute a license to cheat. It shows that under certain circumstances a seller can use its own trademark to mislead its customers, free from legal sanction, in contexts where the same behavior would be sanctioned if the seller used other advertising media. The Article then explores how an alternate conception of the economic function of trademarks can be used to understand the informational value of trademarks and their advertising function. After identifying circumstances appropriate for legal intervention, the Article concludes with a proposal for a new interpretation of the false advertising provision in the Lanham Act to eliminate this disparity. Keywords: Fraud, False Advertising, Trademark Fraud, Fanciful Marks, Error Costs, Regulation of Information, Economic Analysis, Brands

31 Cardozo. L. Rev. 327 (2009) (Lead Article)

Emergencies, Body Parts and Price Gouging

The study of emergency has received much attention from political theorists. Relying on the realms of philosophy, theology and morality, these scholars have focused on whether acts of the sovereign in times of emergency should lie "inside" the law (i.e., be subject to scrutiny) or "outside" the law (i.e., enjoy some form of immunity). This article, on the other hand, utilizes economic theory to analyze emergencies. It argues that some emergencies are subject to the same laws of demand and supply and often do not mandate any intervention; while others may deserve a unique treatment (often within the law) that can be premised on simple rational behavior models. Specifically, this paper discusses two types of emergencies: private and public. The discussion of private emergencies focuses on decisions in which courts were asked to compel one to undergo a medical procedure to give an organ that would save the life of another. The article employs economic theory to reconcile the seemingly contradictory decisions. The article also investigates strategic behaviors, remedial reactions and under what conditions, if any, courts (or regulators) should intervene in organ transactions. The discussion of public emergencies focuses on price gouging. It reviews a number of anti-price gouging laws, the conditions that trigger them as well as the justifications for and against these laws. Using a number of examples, the article demonstrates how the so called "exorbitant prices" help decrease shortages, enable inflow and storage of essential commodities, allocate scarce resources, reduce strategic behavior and queues and stabilize demand. It argues that the assumption underlying anti-price gouging laws - that markets fail in times of emergency - is often erroneous. Keywords: Emergency, Body Parts, Transplants, Organs, Price Gouging, Unconscionable contracts, Economic Analysis

In Sovereignty, Emergency, Legality, Cambridge University Press, 2009).

Getting the Word Out: The Informational Function of Trademarks

This article challenges the statement that “the only legally relevant function of a trademark is to impart information as to the source of the product.” Information about the source of the product undoubtedly helps the consumer choose the product she wants from a set of possible products. This article argues, however, that the informational function of trademarks is broader: in addition to providing information about the source, a trademark often provides information that reduces consumers’ uncertainty about the product’s qualities and impacts purchasing decisions. Specifically, this article shows that a trademark not only helps the consumer choose the product she wants, but it can also help her decide how many units she should purchase of that product. This article then draws on several examples to illustrate that the reduction in consumers’ uncertainty enhances welfare but that under certain conditions it may be used by unscrupulous sellers to defraud customers. Drawing on these insights, this article turns to explain different types of regulations, the optimal investment in trademarks, and offers an alternative explanation as to why trademark law allows sellers to use “deceptively misdescriptive” marks. Keywords: trademarks, marks, brands, search costs, information, false advertising, interbrand, intrabrand, signaling, branding, regulation, market mechanisms, fraud, strategies, law and economics JEL Classification: D11, D81, D82, D83, D84, K00, K13, K39, L15, M37

41 Ariz. St. L.J. 991 (2009)