Saturday, January 12, 2008

Whitman on producerism and consumerism

James Q. Whitman, Consumerism Versus Producerism: A Study in Comparative Law, 117 Yale L.J. 340 (2007). I saw Whitman present a version of this tailored to dilution, and it was very useful to read the larger article. Whitman points out that there are many versions of producer- or consumer-focused regulation; I too have tried to make the point that what he’d call consumer-protection regulation is about protecting specific consumers, sometimes at the cost of more nuanced information or lower prices that would help different consumers.

Here’s the abstract: The spread of American-style “consumerism” is a burning global issue today. The most visible symbols of American consumerism, large enterprises like Wal-Mart and McDonald’s, attract vitriolic attacks in many parts of the world. Political conflict in Europe (and elsewhere) turns largely on the question of whether legal systems everywhere must inevitably follow the American model. Despite the global importance of the consumerism debates, though, comparative lawyers have found little to say. In an effort to develop an analytic comparative law approach to the problem of global consumerism, this Article proposes to revive an analytic distinction that was common in the 1930s: the distinction between “consumerism” and “producerism.” A producerist legal order tends to revolve around rights and interests on the supply side of the market: it focuses on the interest of some class of producers or distributors (such as workers, small shopkeepers, or the competitors in a given industry). A consumerist legal order, by contrast, tends to focus on rights and interests on the demand side of the market—in particular, on the consumer economic interest, understood primarily as an interest in competitive prices. Producerist legal orders can take forms quite different from consumerist ones, both when it comes to economic regulation in the law of antitrust and retail and when it comes to fundamental conceptions of the nature of rights. The distinction between consumerism and producerism involves some real complexities, and it must be used with care. Nevertheless, this Article argues, it is of fundamental importance for classifying and analyzing legal systems, and in particular for understanding basic and persistent differences between continental Europe and the United States.

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