Viewing Unconscionability Through a Market Lens

This Article calls for a move to a new phase in courts’ attitudes toward consumer contracts. Currently, courts applying the unconscionability doctrine to consumer contracts focus on the characteristics of the parties and the transaction. We suggest that rather than examining each consumer contract in isolation, courts should inquire whether there is competition, or potential competition, over contracts in the supplier’s market. As we show, competition over contracts is different from competition over products or services. In order to assess the degree of competition, or potential competition, over contracts, courts should look at the particular features of the supplier’s market identified in this Article, as well as examine the potential strategic interaction among competitors. We argue that when competition, or the threat of such competition, over consumer contracts is sufficiently strong, these contracts should be deemed efficient and fair, and courts should not strike down clauses incorporated into such contracts. Interestingly, and counterintuitively, this conclusion holds even when consumers are uninformed. We offer workable guidelines for courts as to how they could implement the market-based approach proposed in this Article and demonstrate how this approach could produce outcomes opposite to, but fairer and more efficient, than the ones courts conventionally adopt or legal scholars offer. We also identify oppressive techniques suppliers employ in their contracts with consumers that are currently ignored completely by courts and are expected to survive even vigorous competition over contracts. We suggest that courts should be particularly suspicious of such oppressive techniques and scrutinize them with special care

Partial cross ownership and tacit collusion

This paper shows how competing firms can facilitate tacit collusion by making passive investments in rivals. In general, the incentives of firms to collude depend in a complex way on the whole set of partial cross ownership (PCO) in the industry. We show that when firms are identical, only multilateral PCO may (but need not) facilitate tacit collusion. A firm?s controller can facilitate tacit collusion further by investing directly in rival firms and by diluting his stake in his own firm. In the presence of cost asymmetries, even unilateral PCO by efficient firms in a less efficient rival can facilitate tacit collusion

The Anticompetitive Effect of Passive Investment

There are many cases in which a firm passively invests in its competitor. For example, Microsoft passively invested in $150 million worth of the nonvoting stock of Apple, its historic rival in the operating systems market. Also, in November 1998, Northwest Airlines, the nation\u27s fourth-largest airline, purchased 14$324 million worth of Budget\u27s nonvoting stock. Surely if Microsoft were to merge with Apple, Northwest with Continental, TCI with Time Warner, Gillette with Wilkinson Sword, National Rent-a-Car with Avis, or Hertz with Budget, antitrust courts and agencies would acknowledge that such mergers may substantially lessen competition. But how should we treat the seemingly different situation where Microsoft is merely a passive investor in Apple, where Northwest merely holds a passive stake in Continental, where TCI merely holds a passive stake in Time Warner, where all Gillette does is passively invest in Wilkinson Sword, where GM (National\u27s controller) merely purchases Avis stock as a passive investor, or where Hertz\u27s controller (Ford) passively invests in Budget? Recent cases of passive investment in a competitor have gone unchallenged by antitrust agencies. Moreover, this Article shows that the leading antitrust decisions grant a de facto exemption from antitrust liability for passive investment, by interpreting expansively the solely for investment exception in section 7 of the Clayton Act, the antitrust merger provision

Viewing Unconscionability through a Market Lens

This Article calls for a move to the third phase in courts\u27 attitudes toward consumer contracts. In the first phase, consumer contracts were considered ordinary contracts by courts thus requiring no special treatment. In the second phase, courts and legislatures became suspicious of consumer contracts and developed several tools for handling them, focusing on the characteristics of the parties and the transaction. In this Article, we suggest that it is time to introduce a third phase: Rather than examining each consumer contract in isolation, courts need to acknowledge that consumer contracts are a market-phenomenon which calls for a market-based approach. Instead of focusing on the characteristics of the parties and the transaction, courts should inquire whether there is competition, or potential competition, over contracts in the supplier\u27s market. In order to do so, courts should look at the particular features of the supplier\u27s market, that we identify, and also on the potential strategic interaction among competitors. We argue that when competition over contracts, or the threat of such competition, is sufficiently strong, consumer contracts should be deemed efficient and fair, and courts should not strike down clauses incorporated in such contracts. Interestingly, and counter-intuitively, this conclusion holds even where consumers are uninformed. We offer workable guidelines for courts as to how they could implement the market-based approach proposed in this Article and show how this approach could produce outcomes opposite to, but more efficient and fair, than the ones conventionally adopted by courts or offered by legal scholars

The Hidden Roles of Boilerplate and Standard-Form Contracts: Strategic Imposition of Transaction Costs, Segmentation of Consumers, and Anticompetitive Effects

Standard-form contracts offered to consumers contain numerous terms and clauses, most of which are ancillary to the main terms of the transaction. We call these ancillary terms boilerplate provisions. Since most consumers do not read boilerplate provisions or, if they do, find them hard to understand, courts are suspicious of boilerplate provisions and sometimes find them unenforceable under the doctrine of unconscionability. At times, courts conclude that harsh terms have not been accepted by consumers in the first place and therefore are not included in the contract, and on other occasions courts interpret boilerplate provisions in favor of consumers, applying the rule of interpretation against the draftsman

Network Interconnection With Competitive Transit

We examine the interaction between two interconnected networks (e.g., two LECs) and a third network (e.g., an IXC) seeking access to their customer base. The IXC could either interconnect with both LECs or interconnect with only one LEC and transit calls to the other LEC via the first LEC's network. We show that there is a wide set of cases in which competitive transit could justify partial or even complete deregulation of access to a network’s customer base

Patch test results to the Spanish baseline patch test series according to age groups : A multicentric prospective study from 2019 to 2023

Patch test results may be influenced by age-related factors. However, there is still discordant evidence between age and patch test results. We aim to evaluate the patch test results reflecting skin sensitisation, their relevance and association with clinical features by age group. Methods: Prospective multicentric study of all patients patch tested with the Spanish baseline series in participating centres. Age groups were pre-defined as children (0- to 11-years), adolescents (12- to 18-years), young adults (19- to 30-years), middle-aged adults (31- to 65-years) and older adults (≥66-years). Occurrence of sensitisation, relevance and clinical features were compared by age group. Factors associated with skin sensitisation were investigated with multivariate logistic regression. A total of 13 368 patients were patch-tested. Differences in positive patch test results and relevance by age were detected with the highest proportion in middle-aged adults. Age-related trend differences were found for nickel, potassium dichromate, caines, colophony, Myroxylon pereirae resin, 2-hydroxyethyl methacrylate and limonene hydroperoxide. The multivariate logistic analysis (adjusted for sex, atopic dermatitis, body location and occupational dermatitis) showed an association between the age group of 31-65 (OR: 1.41, 95% CI: 1.26-1.58) and above 66-years (OR: 1.15, 95% CI: 1.01-1.32) with a higher proportion of positive results, compared with young adults. Positive patch test results vary according to age, with the highest occurrence in middle-aged adults. Most haptens did not present age-related differences, reinforcing the use of baseline series regardless of age