Economic consequences for lawyers

2020 ◽  
Vol 9 (3) ◽  
pp. 368-398
Author(s):  
Fabrizio Esposito ◽  
Giovanni Tuzet
Keyword(s):  
Law And Economics ◽  
Explanatory Power ◽  
Consumer Welfare ◽  
Analytical Tool ◽  
Economic Consequences ◽  
Legal Argumentation ◽  
Welfare Maximization ◽  
The Right ◽  
Total Welfare ◽  
The Eu

Abstract This article moves from the premise that a bilateral relationship between law and economics requires the contribution of the theory of legal argumentation. The article shows that, to be legally relevant, economic consequences have to be incorporated into interpretive arguments. In this regard, the jurisprudential preface strategy proposed by Craswell goes in the right direction, but begs the question of why the legally relevant consequences have to be assessed in terms of total welfare maximization instead of, in the EU context at least, consumer welfare maximization. After having identified five points of divergence between total and consumer welfare approaches, the article draws from legal inferentialism to propose an analytical tool – the explanatory scorekeeping model – for assessing the explanatory power of these two approaches. The model is then applied to the reasoning in United Brands Company v. Commission.

The Unsound Theory Behind the Consumer (and Total) Welfare Goal in Antitrust

2018 ◽  
Vol 63 (4) ◽  
pp. 455-493 ◽  
Author(s):  
Mark Glick
Keyword(s):  
Law And Economics ◽  
Consumer Surplus ◽  
Consumer Welfare ◽  
Business Strategies ◽  
Individual Level ◽  
Compensation Principle ◽  
Original Argument ◽  
The Individual ◽  
The Impact ◽  
Total Welfare

This is the first installment of a two-part commentary on the New Brandeis School (the “New Brandeisians”) in Antitrust. In this first part, I examine why the New Brandeisians are correct to reject the consumer welfare standard. Instead of arguing, as the New Brandeisians do, that the consumer welfare standard leads to unacceptable outcomes, I argue that the consumer or total welfare standard was theoretically flawed and unrigorous from the start. My basic argument is that antitrust law addresses the impact of business strategies in markets where there are winners and losers. For example, in the classical exclusionary monopolist case, the monopolist’s conduct is enjoined to increase competition in the affected market or markets. As a result of the intervention, consumers benefit, but the monopolist is worse off. One hundred years of analysis by the welfare economists themselves shows that in such situations “welfare” or “consumer welfare” cannot be used as a reliable guide to assess the results of antitrust policy. Pareto Optimality does not apply in these situations because there are losers. Absent an ability to divine “cardinal utility” from observations of market behavior, other approaches such as consumer surplus, and compensating and equivalent variation cannot be coherently extended from the individual level to markets. The Kaldor-Hicks compensation principle that is in standard use in law and economics was created to address problems of interpersonal comparisons of utility and the existence of winners and losers. However, the Kaldor-Hicks compensation principle is also inconsistent. Additional problems with the concept of welfare raised by philosophers, psychologists, and experimental economists are also considered. In light of this literature, the New Brandeisians are correct to reject Judge Bork’s original argument for adoption of the consumer welfare standard, but for deeper reasons than they have expressed thus far.

scholarly journals An economic approach to parallel imports effects and competition policy

2020 ◽  
Vol 6 (3) ◽  
pp. 315-338
Author(s):  
Yannis Katsoulacos ◽  
Kalliopi Benetatou
Keyword(s):  
Market Integration ◽  
Consumer Welfare ◽  
Parallel Imports ◽  
Rule Of Reason ◽  
Policy Objectives ◽  
The Subject ◽  
Per Se ◽  
The Right ◽  
The Eu ◽  
Opposite Extreme

Parallel imports have been treated very differently in different countries. In the EU, competition law’s very strong (per se) prohibition of restrictions to parallel imports (PI) can be justified by traditional “public interest” concerns related to the EU’s objective to promote free trade and market integration. At the opposite extreme, we have had Russia’s Per Se prohibitions of PI, which can be potentially justified by the country’s industrial policy objectives of protecting its domestic industries. While there is no evidence of a shift in policy by the European Commission (EC) and the EU, there is evidence of a shift in policy in Russia away from the per se prohibition of PI and a recognition that “in some cases” PI should be considered legal. We consider this shift in Russian policy as a shift in the right direction, while we consider unjustified the continuation of EC policy of per se prohibition of restrictions to PI. Our analysis points towards a middle ground in which any question of whether restrictions of PI must be prohibited or not should be the subject of rule-of-reason investigations of the specific economic facts of each case and what these imply for welfare (and, specifically, consumer welfare).

scholarly journals The conflict between market competition and worker solidarity: moving from consumer to a citizen welfare standard in competition law

Legal Studies ◽  
2020 ◽  
pp. 1-18
Author(s):  
Firat Cengiz
Keyword(s):  
Law And Economics ◽  
Market Competition ◽  
Competition Law ◽  
Consumer Welfare ◽  
Public Attention ◽  
Gig Economy ◽  
The Us ◽  
Competition Rules ◽  
Competitive Behaviour ◽  
The Eu

Abstract This paper critically investigates the law and economics of competition law enforcement in conflicts between workers and employers in the EU and the US. The conflict between worker solidarity and market competition attracts significant public attention due to the legal conundrum facing precariously employed gig workers. This paper reveals that in light of the strict consumer welfare standard underlying competition rules, competition law has become an overall disciplining mechanism impeding collective worker action beyond the limited case of the gig economy. Using a holistic theoretical framework comprising of neoclassical and Marxist exploitation theories, the paper shows that sound economic analysis justifies resolving the competition–solidarity conflict in favour of solidarity. After showing that the consumer welfare standard overlooks the idiosyncratic qualities of labour as a ‘fictitious’ commodity, the paper offers an original and inclusive ‘citizen welfare’ standard that takes into consideration how anti-competitive behaviour affects workers as well as consumers. As a result, the paper also contributes to the post-2008 debate on whether and how competition law could contribute to equality by shedding light on competition law's treatment of workers and their welfare.

Prawo obywateli Unii Europejskiej do czynnego i biernego udziału w wyborach parlamentarnych w kraju członkowskim miejsca pobytu

2016 ◽  
Vol 14 (4 (1)) ◽  
pp. 23-37
Author(s):  
Marek Danikowski
Keyword(s):  
Member State ◽  
European Parliament ◽  
European Democracy ◽  
The Right ◽  
Insufficient Knowledge ◽  
The Eu

The right of EU citizens residing in another Member State, to vote and stand in elections to the European Parliament is a major achievement of the European democracy. In the light of EU citizens’ still insufficient knowledge concerning the opportunities and benefits brought in by this right, it is worth making this institution more familiar to themin a straightforward way, at the same time balancing criticism towards the idea of the EU.

Introductory Note

2018 ◽  
Author(s):  
Guido Raimondi
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
European Convention ◽  
European Court ◽  
European Public ◽  
Introductory Note ◽  
Un Security Council ◽  
The Right ◽  
The Eu

This article comments on four important judgments given by the European Court of Human Rights in 2016. Al-Dulimi v. Switzerland addresses the issue of how, in the context of sanctions regimes created by the UN Security Council, European states should reconcile their obligations under the UN Charter with their obligations under the European Convention on Human Rights to respect the fundamentals of European public order. Baka v. Hungary concerns the separation of powers and judicial independence, in particular the need for procedural safeguards to protect judges against unjustified removal from office and to protect their legitimate exercise of freedom of expression. Magyar Helsinki Bizottság v. Hungary is a judgment on the interpretation of the Convention, featuring a review of the “living instrument” approach. Avotiņš v. Latvia addresses the principle of mutual trust within the EU legal order and the right to a fair trial under Article 6 of the Convention.

scholarly journals The European Committee of the Regions as a watchdog of the principle of subsidiarity

2020 ◽  
Vol 27 (3) ◽  
pp. 284-301
Author(s):  
Salvatore Fabio Nicolosi ◽  
Lisette Mustert
Keyword(s):  
European Commission ◽  
Legislative Process ◽  
European Committee ◽  
Legislative Proposal ◽  
The Right ◽  
Committee Of The Regions ◽  
Regional Funds ◽  
Shed Light ◽  
The Eu

In a resolution adopted on 1 February 2018, the European Committee of the Regions noted that a legislative proposal of the European Commission concerning a Regulation that changes the rules governing the EU regional funds for 2014-2020 did not comply with the principle of subsidiarity. Accordingly, the Committee considered challenging the legislative proposal before the Court of Justice if the proposal was formally agreed upon. Although at a later stage the European Commission decided to take into account the Committee’s argument and amended the proposal accordingly, such a context offers the chance to investigate more in detail the role of the Committee of the Regions in the legislative process of the EU and, more in particular, its role as a watchdog of the principle of subsidiarity. This paper aims to shed light on a rather neglected aspect of the EU constitutional practice, such as the potential of the Committee of the Regions to contribute to the legislative process, and answer the question of whether this Committee is the right body to guarantee compliance with the principle of subsidiarity.

scholarly journals A Law and Economics Perspective on the EU Directive on Representative Actions

2021 ◽  
Author(s):  
L. Visscher ◽  
M. Faure
Keyword(s):  
Law And Economics ◽  
Class Action ◽  
Third Party ◽  
Collective Actions ◽  
Member States ◽  
Eu Directive ◽  
Opt Out ◽  
Contingency Fees ◽  
Party Funding ◽  
The Eu

AbstractThis article provides an analysis of the Directive on representative actions for the protection of the collective interests of consumers of 25 November 2020. The Directive enables qualified entities to bring representative actions on behalf of the consumer. The article uses a Law and Economics approach to stress the advantages of collective actions as a tool to remedy rational apathy and free-rider behaviour. The article therefore in principle welcomes the fact that this Directive will lead to all Member States having some form of collective redress. However, it is rather difficult to fit this Directive into the economic criteria for centralization as there is no obvious danger of cross-border externalities or a race-to-the-bottom. The article is critical of the fact that the Directive only provides for a representative action and does not mention the alternative of a group action (sometimes referred to as a class action). This is especially problematic if there are very few qualified entities that could bring the representative action. Furthermore, the fact that Member States may choose an opt-in procedure instead of an opt-out procedure is critically evaluated. The most problematic aspect of the Directive is the funding of the representative action. Punitive damages and contingency fees are rejected, and the possibility of third-party funding is restricted. It is therefore to be feared that this Directive, notwithstanding the good intentions, may not lead to much application in practice, since the question of how the representative action is to be financed is not resolved in any satisfactory manner.

Die europäische Agrarpolitik vor dem Hintergrund der Osterweiterung

2003 ◽  
Vol 52 (1) ◽  
Author(s):  
Reimar von Alvensleben ◽  
Bernhard Brümmer ◽  
Ulrich Koester ◽  
Klaus Frohberg
Keyword(s):  
Agricultural Policy ◽  
Consumer Welfare ◽  
World Market ◽  
Market Mechanism ◽  
Niche Markets ◽  
Member States ◽  
Regional Food ◽  
Direct Payments ◽  
The Impact ◽  
The Eu

AbstractReimar von Alvensleben asks in his article whether the “Agrarwende” in Germany could be a model for Europe. He argues that the new agricultural policy (the so-called “Agrarwende”), which has been proclaimed and implemented after the German BSE crisis 2000/2001, adds new problems to the already existing problems of the Common Agricultural Policy (CAP). The strategy of improving international competitiveness of German agriculture by promoting the niche markets for organic food, animal-friendly produced food and regional food is unrealistic and thus neglecting the problem of improving the competitiveness of 85−90% of German agriculture. The criterion of ecological efficiency (How to achieve ecological goals at lowest costs?) is totally neglected in agricultural environmental policy. The strategy of implementing environmental and animal welfare standards by the market mechanism will not lead to reasonable results because of perception distortions of the consumers. As a consequence of distorted perception of food risks by politicians, cost of risk prevention are too high and/or safety and health standards in other less spectaculous areas are too low. For these reasons he concludes that the “Agrarwende” in Germany cannot be regarded as a model for Europe, especially not for Eastern Europe.Bernhard Brümmer and Ulrich Koester write in their paper that the Eastern Enlargement of the EU will have significant implications for governance of the CAP. The evolution of the CAP has led to a permanent increase in the intensity of regulation, although the rate of external protection has declined. Past experience - mainly revealed by the European Court of Auditors - has evidenced many irregularities and even fraud as a by-product of the CAP. Governance problems are due to badly designed policies, which demand control of even individual farms and give the member countries, administrative regions (which are supposed to implement the policies on the local scale) and the individual farms themselves incentives to breach the rules. In their view governance problems will certainly increase in the enlarged EU. The new member countries have a weaker administrative capacity and are subject to more corruption than the present EU countries. Adequate policy reaction should lead to fundamental changes of the CAP.Klaus Frohberg argues that in its Mid Term Review the EU-commission proposes a change in the most important instruments of the CAP. Direct payments and intervention prices belong to this group. In his paper the impact of these changes is discussed. Direct payments shall become decoupled from production and be summarised into a single payment to farmers. In addition, the right of these transfers shall be made tradable independent of a simultaneous exchange of land. With regard to the intervention prices they shall be reduced as to approach world market levels. Assuming that the Member States will confirm the proposals the CAP is expected to improve considerably. Allocation and transfer efficiency will increase, consumer welfare will go slightly up, taxpayers will be little if at all affected and the EU can defend its position in the negotiations of the ongoing WTO round. These advantages accrue to the current as well as to the new Member States. In spite of the improvements the CAP still needs to be enhanced in some areas such as the market organisation of sugar and milk.

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