Restoring consumer sovereignty: How markets manipulate us and what the law can do about it

Abstract

For decades, there has been broad consensus within antitrust, intellectual property, and consumer law scholarship that consumers make decisions in their own best interests by consciously weighting the market’s relative prices, quantities, and qualities against each other. That consensus is unraveling in light of novel findings from cognitive and social psychology that explain how individuals’ concepts of what they prefer drive the global economy. At the same time, producers nowadays no longer merely satisfy consumers’ needs but also communicate their values, identities, and aspirations through the sale and marketing of products. As part of the growing interest in observations such as these, a wealth of psychological studies challenge the fundamental teaching of economics that the interplay of demand and supply of goods in a free market economy provides us with material wealth. This book provides a normative defense of that assumption and a theoretical framework for understanding its contradictions. It argues that the erosion of consumer sovereignty through the ability of product manufacturers and sellers to systematically take advantage of individuals’ psychological weaknesses demands a twenty-first-century reconceptualization of the consumer and a modern account of how the law should regulate the digital economy. Such an account is justified to ensure a diverse marketplace in which consumers can influence how our societies are structured and arranged. By examining the role that market manipulation plays, it offers ingredients for a realistic descriptive and normative market regulatory theory that is aware of its political economy, its behavioral suppositions, and its distributional consequences.