Consumerism Versus Producerism_ a Study in Comparative LawConsumerism Versus Producerism_ A Study in Comparative Law

 

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Consumerism Versus Producerism: A Study in Comparative Law   James Q. Q. Whitman Yale Law School

Follow this and additional works at: hp://digitalcommons.law hp://digitalcommons.law.yale. .yale.edu/fss_papers edu/fss_papers Part of the Comparative and Foreign Law Commons Recommended Citation  Whitman, James Q., "Consumerism "Consumerism Versus Pr Producerism: oducerism: A St Study udy in Com Comparative parative La Law" w" (2007). Faculty Scholarship Series. Paper 644. hp://digitalcommons.law.yale.edu/fss_papers/644

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TH

AL

LAW

'OURAL

JAMES Q. WHIT MAN

Consumerism Versus Producerism: A Study in Comparative L aw ABSTRACT.

The spread ofAmerican-style "consumerism" is a burning global issue today.

The most visible symbols of American consumerism, large enterprises like Wal-Mart and

thee world. Political conflict in Europe (and McDonald's, attract vitriolic attacks in many parts of th turns largely on the of whether legal systems everywhere must inevitably elsewhere) e question the th e global importance of th thee consumerism debates, though, follow th thee American model. th Despite comparative lawyers have found little to say. In an effort to develop an analytic comparative law th e problem of global consumerism, this Article proposes to revive an analytic approach to the andd distinction that wa s common in the 1930s: th e distinction between "consumerism" an "producerism." A producerist legal order tends to revolve around rights an d 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 thee market-in order, by contrast, tends to focus on rights an d interests on th e demand side of th 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 th e nature of rights. T he distinction between consumerism an d 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, an d in fo r understanding basic an d persistent differences between continental Europe and the particular for United States. Ford Foundation Professor of Comparative and Foreign Law, Yale Law School. Earlier versions of this paper were presented at workshops at Columbia, Cornell, Duke, and AUTHOR.

NYU law schools. I am grateful to participants in all four forums for their comments. I also

Ia n Ayres, Giacinto della Cananea, gratefully acknowledge detailed an d useful comments by Ian Rochelle Dreyfuss, Eleanor Fox, David Gerber, Christian Joerges, Anette Kur, Susanne Lepsius, Mike Levine, Joseph Raz, Alan Schwartz, Frank Upham, and John Witt.

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ARTICLE

CONTENTS

INTRODUCTION I.

BEYOND THE CIVIL LAW/COMMON

COMPARATIVE II.

CONSUMERISM A BRIEF

III.

34 2 LAW

DICHOTOMY:

LAW AS SOCIAL SCIENCE

350

VERSUS PRODUCERISM:

HI STORY OF A DISTINCTION

354

REFINING TH E DISTINCTION

36 4

IV. ATLANTIC CONFLICTS: ANTITRUST AN D RETAIL PRICING

V.

REGULATING RETAIL: HOURS, MERCHANDISE,

VI. CONSUMERISM,

VII.

CONSUMERISM

PRODUCERISM,

FOOTAGE

AN D THE CULTURE OF RIGHTS

383 394

AN D PRODUCERISM ACROSS

TH E L ANDSCAPE OF TH E LAW

CONCLUSION

SQUARE

371

397

401

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believe we are ar e on the threshold of a fundamental change in o u r popular economic thought, that in the future we ar aree going to think less about the th e I

producer and more about the consumer.

-Franklin Delano Roosevelt,

1932'

American consumerism threatens he globe. -Hugo Chavez, 2oo62 INTRODUCTION

Is there such a thing as "consumerist" law? Does th thee spread of "consumerist" la law w pose some kind of danger to th thee health of human societies? There are politicians and intellectuals all over th thee world w h o sa sayy so. Many of them blame America in particular for exporting a poisonous brew of consumeroriented law, empty materialism, an d heedless waste of resources. Leaders of th thee hard left wing, like Hugo Chavez of Venezuela, are particularly vocal:

Chavez has ha s declared that American consumerism, marching hand in hand with American militaristic imperialism, threatens th thee globe.' But the hard left is no t alone on this issue. There are ar e also mainstream figures, especially in Europe, w h o express anguish about th thee corrosive spread of American consumerism in a globalizing world. Even th thee conservative European press sometimes rumbles about th thee American consumerist threat: fo forr example, Le Figaro, a French newspaper that generally promotes a relatively benign view of th thee United States, ran an article in 2002 declaring that "American enterprises have

commercial r th disseminated traps thee young generation.... Cultural rootlessness isveritable what American firms likefoMcDonald's and Nike ar aree selling to 4 European youth." American consumerism ha hass many critics at home toonotably tw o prominent Harvard philosophers, Michael Sandel' a n d the th e late

1.

LAWRENCE B. GLICKMAN, A LIVING WAGE: AMERICAN WORKERS AN D CONSUMER SOCIETY 15 6 (1997).

2.

Associated Press, Consumerism Threatens Globe: Chavez, HINDU (Chennai),

THE MAKING OF

18,

3. 4-

5.

Jan. 28, 2006, at available at http ://www.thehindu. ://www.thehindu.conV2oo6/ol/28/s conV2oo6/ol/28/stories/2 tories/2oo6o128o2 oo6o128o2 9 4 1400.htm.

Id. aiment

Ces Ce s eunes qu i Sonia Pierre-Olivier Julien, Nike mais pa s l'Am~rique [These Young Devillers People wh whoo&Like Nike, bu t Not America], FiGARo Fr.), Aug. 1, 2002, Economie, at VIII.

Sandel ha s campaigned vigorously against the culture of consumerism that he associates with chain stores like Wal-Mart. Consumerist law, for fo r Sandel, is the th e enemy of republican self-government: when th e law reduces us all to consumers, Sandel argues, it robs us of ou r connection to self-governing producer institutions like small businesses and unions, leaving us dependent on the large enterprises that supply us with the th e consumer goods we crave.

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John Rawls, w h o decried th e spread of an American style of "civil society hiss death.6 awash in a meaningless consumerism" shortly before hi Not everybody is a critic of American consumerism, however. F or example, another Harvard professor, historian Lizabeth Cohen, gives consumerism credit for fo r opening up political possibilities fo r American women and racial minorities: "Citizen consumers," writes Cohen in her 2 0 0 3 book A Consumer's aree people w h o ar aree ready to make vigorous demands fo r rights. 7 Republic, ar Ralph Nader has, of course, made a major American political career saying aree legal scholars, like the eminent something similar. And then there ar conservative Robert Bork, w h o insist on the supreme importance of consumer welfare in sensible economic legislation. "The only legitimate goal of American Thee Antitrust Paradox, "is the hi s book Th antitrust law," as Bork famously put it in his maximization of consumer welfare.",8 Bork undoubtedly speaks for the large majority of bien pensant legal scholars in America today. Indeed, if w e open a thee confident assumption that standard American antitrust textbook, w e find th thee American approach will fail to prosper. 9 O n the countries that fail to adopt th ar e proponents of th thee American way of European side of th thee Atlantic too, there are doing things: "[T]he political discovery of the consumer," as on e of them thee best economic news of recent thee Wall Street Journal, "is th recently wrote in th history."" forr it or against it, most of these observers agree that the Whether they are fo thee creeping spread of hass something to d o with th drama of globalization ha thee world -and most of them write on American "consumerism" to the rest of th Le t us call it the "Wal-Mart Question," since so the topic with some passion. Let many critics worldwide regard Wal-Mart as th thee vector of American consumerist influence.

MICHAEL

J.

SANDEL,

DEMOCRACY'S

DISCONTENT:

AMERICA

IN

SEARCH

OF

PUBLIC

A

PHILOSOPHY 221-49 (1996). 6.

Law w of Peoples and the European John Rawls & Philippe V an Parijs, Three Letters on The La Union, 7 REVUE DE PHILOSOPHIE tCONOMIQUE [REVIEw OF ECONOMIC PHILOSOPHY] 7 (2003) (Fr.), available at http://www.uclouvain.be/cps/ucl/doc/etes/documents/RawlsVanParijsl .Rev.phil.Econ.pdf.

7.

LIZABETH

COHEN, A CONSUMERS'

REPUBLIC: THE POLITICS OF MASS CONSUMPTION

IN

POSTWARAMERiCA 18-Si (2 0 0 3 ).

8.

ROBERT H. BORK, THE ANTITRUST PARADOx:

9.

LAWRENCE A. SULLIVAN

A POLICY AT WARWITH ITSELF 51(1978).

& WARREN S. GRIMES, THE

LA W OF ANTITRUST: AN INTEGRATED

HANDBOOK 2-3 (2d ed. 2006) ("In a world in which the most competitively fit enterprise

survives an d thrives, a nation with vigorously enforced competition laws may have a comparative advantage over other nations. That nation's enterprises, honed by competition in the home market, may be better equipped to compete in global markets.").

io. io .

Ann Mettler, Editorial, Meet the European Consumer, WALL ST. J. EUR., Jan. 29 , 2007, at i.

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So ho w should legal scholars approach these often ferocious debates over th e Wal-Mart Question? Surely w e ought to have something to say. T o be sure, it is hard to take figures like Hugo Chavez seriously; some of what o ne hears about consumerism amounts to little more than ranting. Nevertheless, it seems obvious that there is an issue here that deserves careful analysis. In particular, shouldn't specialists in comparative la law w be weighing in in?? After all, at the heart of the debates over consumerism lie claims about comparative law: that some legal systems are more "consumerist" than others; that American law in particular is a variety of "consumerist" law; that the spread (o r as comparativists might put it, th thee "transplant"") of consumerist law la w represents a force for fo r deep cultural an d social change an d that a "consumerist" legal order will tend to transplant itself to societies throughout th thee globe.

Ye Yett the sad truth is that comparative lawyers have contributed essentially nothing on the subject of global consumerism. Instead of wading into this debate, most comparativists continue to busy themselves with other topics most especially topics involving the well-worn contrast between th thee common la law w an d civil la law w traditions. M y hope, in this Article, is to do something to change this state of affairs. I will focus on tw o problems. T h e first is th e problem of defining "consumerist" law- a problem that turns out to be both vexing an d fertile. As I will argue, "consumerist" la law w is best thought of as opposed to "producerist" law, odd an d unfamiliar though th thee latter term m ay sound. If w e classify modern legal systems according to whether they look more consumerist or

more producerist, w e ca cann gain significant insight into the dynamic of leading controversies in th e world. My second focus is on th thee question of whether consumerist la law w is inevitably transplanting itself, bringing what th thee American 2 press calls th thee "consumerist ethos"' with it. On that score, I will voice some skepticism, contending that continental European law la w is in fact resisting American-style consumerism with some success. T h e Atlantic world is divided, I will argue, between a more strongly consumerist America a nd a more strongly producerist Europe. Before turning to these two problems, though, I will begin with a bit of methodology - w ith a brief reflection o n w h y comparativists have found so little to say about consumerism. Like a number of other thoughtful contemporary comparativists, I think th thee field needs to broaden its orientation. Traditionally minded comparative lawyers write in ways that reflect the th e

ni. Th e classic statement

is

ALAN

WATSON,

LEGAL

TRANSPLANTS:

AN

APPROACH

TO

COMPARATIVE LA W (1974). 12.

To m Hundley, Germany: No w Open Sundays? Country's Culture of Shopping Slowly Changing, CHI. TRiB., Jan. 28, 2007, at 13 .

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concerns and interests of th e legal profession, while neglecting the th e sorts of issues that preoccupy social scientists and political leaders. Thus, they focus on topics like th thee different jurisprudential approaches an d procedures of the common la law w an d civil la law w traditions, while finding little to say about th thee role of th thee la law w in different socioeconomic systems. The result is that comparative law la w scholarship often seems out of tune with th thee dominant issues of the th e modern world. Accordingly, o u r first step in attacking th thee consumerism problem should be to shake free from our comfortable habit of addressing ourselves to th thee community of lawyers. Instead, w e should write for a wider audience of readers concerned about contemporary differences in social an d economic orientation. In particular, when it comes to th thee great Wal-Mart Question, we should develop an analytic contrast between "consumerism" and "producerism." The idea that there is a conflict between consumerist and producerist orientations m ay sound strange to lawyers, but it ha hass been around fo forr a long time. Early twentieth-century political theorists like Walter Weyl believed that there w as a conflict between politics oriented toward producer interests and politics oriented toward consumer interests. 3 Contemporary social and political

commentators say sa y th e same thing; for fo r example, Benjamin Barber writes in hi hiss new ne w book Con$umed that market society ha hass witnessed th thee "dominion of 4 consumers over producers." T h e basic idea behind what these authors sa sayy is simple enough. They argue that there has been a deep shift in th e politics of industrial societies over the last two centuries. As Barber puts it, "productivist capitalism" ha hass slowly given 5 w ay to "consumerist capitalism."" What does this mean? It means that in the early phases of the development of industrial society, politics focused on the th e rights of actors on th thee market-on the rights of producers thee supply side of th (as well as distributors). Thus, traditional socialist politics emphasized the rights of on e class of producers, the workers. But traditional industrial politics w as not limited to socialism, and th thee traditional orientation toward producer rights was wa s not limited to workers: there were also less socialistic varieties of traditional politics, focusing on the rights of other classes of producers an d distributors -for example, the rights of competitors in a given industry to be protected against "unfair competition," or th thee rights of small retailers to be protected against big discount stores. Traditional industrial politics h ad many variants, on both th thee left and th thee right. B ut whether left-wing or right-wing, it

13.

Se e infra Part II.

14.

BENJAMIN

R. BARBER,

CON$UMED:

How MARKETS

ADULTS, AND SWALLOW CITIZENS WHOLE 15.

17 7

CORRUPT

CHILDREN,

INFANTILIZE

(2007).

Id. at 9.

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w as very broadly a politics of th thee supply side. It w as a politics of rights an d forr producers and distributors -what w e can protections fo ca n call, fo forr the th e sake of brevity, a politics of producer interests. By contrast, th thee twentieth century ha hass witnessed "the political discovery of the consumer, ,, 6 especially in America. In the th e 1932 words of Franklin Roosevelt, w e no w "think less about th thee producer and more about the 7 consumer."' This means that in contemporary America, politics focuses more o n consumer rights than it used to -on rights an d interests on the demand side of th thee market. Thus, instead of emphasizing producer protections like workers' of competitors to be safe from "unfair competition," rights, the right modern orAmerican policymakers tend to emphasize th e right of consumers to b uy goods an d services at competitive prices, or th e right of consumers to

warranties of quality a nd safety. Modern American policy thinking ha hass thus shifted its it s tenor from producerism to consumerism -from supply-sideoriented politics to demand-side-oriented politics, from producer rights an d protections to consumer rights and protections. Defenders of th thee rise of consumerism see many advantages in this historic shift from th thee politics of the supply side to th thee politics of th thee demand side. In particular, many of them believe that th e consumerist orientation helps put an en d to a style of politics addicted to inefficient producer protections. By contrast, cultural critics like Barber a n d Sandel find th thee shift to consumerism morally an d politically troubling. As this Article argues, this contrast between producerism a nd consumerism is of considerable value fo r understanding th thee comparative la law w of the economy today. T h e best w ay to analyze many of th thee dominant legal conflicts in today's world is indeed through th thee lens of conflict between la law w oriented toward producer interests an d la law w oriented toward consumer interests, between law oriented toward rights on the supply side a nd la law w oriented toward rights on the demand side. Certainly classifying legal orders in that w ay ca cann be more revealing than talking about the comm comm on la law w and civil la law w families.

Nevertheless, as I will insist, classifying legal orders into consumerist an d is not work a straightforward categories producerist the contrary, thise problem requires some careful in comparativetask. law, O to nwhich this Articlethe devoted. W e cannot talk intelligently about consumerism a nd producerism unless w e acknowledge a number of ambiguities and complexities. First of all, much depends on ambiguities in th thee conception of the th e consumer interest: as I shall argue, there is more than on e variety of

16.

Mettler,

17.

GLICKMAN,

supra

note io.

supra note

1, t

156.

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"consumerism." In particular, it is essential that w e distinguish between the consumer economic interest, an interest in low prices, shopping convenience, and th thee like, an d the consumer protection interest, an interest in legal thee enemies of guarantees of th thee safety and quality of goods an d services. What th consumerism really fear is law la w favoring the first of these interests, the economic interest: they reject law that aims to lower consumer prices no matter what the law w that allows cost to producers an d distributors. In particular, they reject la

forr enterprises like Wal-Mart to offer lo low w prices at the cost of protections fo

La protection stores. Law workers small-square-footage favoringproducer th thee consumer tow historic interest, and poses fewer dangers protections. As by contrast, ca n introduce a great deal of paternalistic consumer we shall see, a country can protection legislation while still leaving many historic producer protections in place. This means that there is no simple opposition between consumerism an d producerism. Only economic consumerism represents a true menace to the producerist outlook, and th as k is whether economic thee right question to ask consumerism is inevitably transplanting itself. th e same If w e must be careful in defining the consumer interest, moreover, the is no less true when it comes to th thee producer side. Indeed, I will lay much emphasis on th thee fact that there is no single producer interest. Producerist law but some producer interest. When we not favor does "the" producer interest, ar e not speak of producerism, w e are speaking of an y particular legal program, but of la law w that tends to focus o n rights, interests, and most especially conflicts on thee producerist worldview generally the supply side. Indeed, as we shall see, th supposes that the problems of th thee la law w are very much problems of conflict between different classes of producers. M y topic, let m e emphasize, is differences in worldviews. T he differences aree differences in the between consumerism and producerism that I will trace ar politics of th thee law, differences in the values embraced by different legal thee la law w perceives activities on the supply cultures. They have to d o with whether th side or on the demand side as most deserving of protection. This Article is thus thee la not a study of th thee actual economic impact of th law w -o f w ho gains or loses from an y particular piece of legislation. T he actual impact of a given piece of farr behind its ambitions, as every worldly person knows. lagg fa legislation m ay la This Article is intended only to describe the ambitions, not to assess the impact-to describe h o w different societies settle on different economic identities as th thee ones of the greatest value, not whether those societies succeed or fail in the pursuit of their economic policies. thee core problems raised by consumerism A nd as I shall insist throughout, th aree indeed problems about identity. They are problems that and producerism ar turn, as it were, on a kind of economic identity politics. T h e enemies of consumerism sometimes talk as though there were some class conflict between

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"the" consumers an d "the" producers. Yet Ye t of course consumers and producers ar aree no t tw o different classes of persons. All productive members of society in a

modern economy have both of these identities: w e ar aree all both "consumers" and "producers." When a worker works, he is a producer; when he shops, he is a consumer. Correspondingly, th thee choice between emphasizing consumer rights and emphasizing producer rights is no t a choice between favoring "the" economic class of consumers and favoring "the" economic class of producers. It is a choice about which of these two identities w e will regard as deserving protection by law. It is a value choice about whether w e think that th thee citizen's interests in his guise as "consumer" are more fundamental than hi hiss interests in his guise as "producer," or vice versa. I will take my examples from th thee United States, on the on e hand, and, on th e other, from the leading continental economies of Germany a nd France. Germany a nd France, I will argue, remain fa farr more oriented toward producer and distributor interests (for both of which I will use us e th thee shorthand "producer interests") than th thee United States, even in this high ag agee of consumerism. European policymakers often claim that Europe ha hass made "the political discovery of th e consumer," but this statement is only true if we qualify it

carefully. Continental la law w is indeed putting a growing emphasis on the th e consumer protection interest, developing many paternalistic guarantees of the th e safety an d quality of goods an d services. But the consumer economic interest is making slower headway. The result, as I will tr tryy to show, is that contemporary continental la cann leave many producer protections on the books. This law w ca reflects a fundamental fact about continental cultures: countries like France and farr more producerist in their Germany remain both far fa r more paternalistic and fa deep cultural orientation than America. Indeed, producerism is very much alive in th thee legal cultures of continental Europe. Despite all th thee global pressures to embrace economic consumerism, when continental Europeans gaze upon th thee modern marketplace, they remain

much more likely than Americans to perceive rights an d interests on the supply side, rather than on th thee demand side. Thus when it comes to basic labor law, they remain much more ready than Americans to think of workers' rights as fundamental. When it comes to competition law, they remain more likely than Americans to focus on the rights of competitors to market-share, rather than on the rights of consumers to benefit from competitive prices. When it comes to the la law w of retail, they remain more likely to find ways to protect small shopkeepers against large retail outfits. I will offer numerous other examples too. In particular, I will argue that o ld guild and artisanal traditions are far more vigorous in Europe than they are in th th e thee United States. Indeed, the strength of their artisanal traditions ha hass much to do with th thee successes of continental

economies, which are specializing

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precision goods. T h e ne t result is a continental Europe traditions remain strong, where small shopkeepers benefit legal protections, and where workers' rights are fa farr more gender or race rights. Europe, I will conclude, is not turning

where artisanal from important important than

into the United

States.

O ne caveat is in order: the Euro-American differences that I will trace are ar e relative, not absolute. I will not claim that American la law w is purely devoted to economic consumerism, n o r that continental European la law w is purely producerist. Instead, I will claim that American la law w is more consumerist an d Europe is mo re producerist. B ut though th e differences are merely relative, they are there, they are persistent, an d they testify to a deep transatlantic divide in basic perceptions of the th e risks and dangers of modern economic life. Moreover, the th e supposed pressures of global economic competition are not compelling Europeans to embrace economic consumerism. Things are certainly changing, thee continental Europe that I will portray is not dying: Germany a nd but th France have not made the th e supposedly inevitable transition from la law w of the supply side to la law w of the th e demand side. Part I of this Article begins with methodology, deploring th thee failure of

comparative la law w to address issues like consumerism. Part II describes th e emergence of th thee conflict between producerism and consumerism in the political an d economic thought of the th e early twentieth century. Part III sketches out a basic contrast between tw o different approaches to law, economic consumerism and producerism. Part II IIII also lays weight on th thee fundamental importance of distinguishing between th e consumer economic interest a nd the consumer protection interest. Parts IV an d V explore a variety of areas of American, French, an d German law-especially th e la law w of retail shopping. They focus on different aspects of retail law: Part IV discusses th la w of thee law pricing, while Part V focuses on other matters, like th thee la law w of store hours an d square footage. Both Parts IV an d V draw examples from an important recent business failure: Wal-Mart's withdrawal from th e German market in the summer of 2006. Part VI turns to differing concepts of basic rights, and Part VII VI I rapidly reviews the th e utility of the th e opposition consumerism/producerism fo forr a variety of additional areas of the th e law. T h e Article concludes with some claims about th thee aims of comparative la law w and some tentative predictions about the future of continental Europe. In particular, th thee Article suggests that th thee law la w of comparative advantage implies that Europe a nd America are likely to remain different fo r th thee foreseeable future.

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sayy about consumerism, while the W hy do comparativists have so little to sa th e subject so, well, consuming? The basic rest of th thee global intelligentsia finds the hass long been written b y legal answer is that our specialist literature ha hass traditionally been forr legal professionals. Our literature ha professionals, fo exceedingly lawyerly-which means that it often leaves disappointingly little thee attention of th e kinds of policy problems that capture th room fo forr analysis of the th e global stage. most politicians and intellectuals on the law w bookshelf ha s browsed th thee comparative la Indeed, as anybody w h o has knows, the bulk of our literature focuses o n technical problems of limited interest to nonlawyers. Moreover, even when it offers larger generalizations, twoo lawyerly frameworks: w e tend to classify our literature tends to rely on tw legal systems according to th e sources they use an d according to their law w predominates: comparativists procedures. Classification by sources of la generally assume that legal systems should be classified into source-based la w systems (i.e., ones whose sources have roots in "families," such as civil law la w systems (i.e., ones whose sources have roots in Roman law) o r common law th e judicial precedents of th e English courts) o r "religious" systems (i.e., ones thee Q(ur'an). 8 This seems perfectly whose sources have roots in a text like th aree the natural to lawyers, w ho always begin an y legal analysis by asking "what ar th e law?" -or, to put it a little more concretely, "where should I go sources of the th e answer?" to look up the B u t if practicing attorneys need to spend time thinking about the sources of thee spread law, the same is much less true of people interested in matters like th aree cited of consumerism. They d o not need to know what kinds of authorities ar th e larger law w in the thee role of la in different legal systems. They need to understand th world of economic and political debate. Source-based classification does little cann be mounted against classification th e same complaint ca to help them. Much the

18.

thee leading treatments bring great sophistication to their discussion of these To be sure, th fo r example, RENt DAVID, LE S familiar categories. Fo r a number of valuable insights, see, for GRANDS

SYSTtMES DE DROIT CONTEMPORAINS

[MAJOR CONTEMPORARY

LEGAL SYSTEMS]

(8th ed. 1982); and KONRAD ZWEIGERT & HEIN KOTZ, INTRODUCTION TO COMPARATIVE LAW (Tony Weir trans., 3 d ed. 1998). Nevertheless, it is striking that these authors continue to

classify legal systems in the traditional source-oriented way, even while offering analytic

observations that have nothing to do with that style of classification. For a critique, see Ugo Mattei, Three Patterns of Law: Taxonomy and Change in the World's Legal Systems, 45 AM. J.

COMP. L. 5 (1997); and Mark Van Hoecke & Mark Warrington, Legal Cultures, Legal Paradigmsand Legal Doctrine: Towards a New Model fo r Comparative Law, 47 INT'L & COMP.

L.Q495 (1998).

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based on differences in procedure. T he work of specialists on procedure is often profound indeed: there is no finer comparativist than Mirjan Damaka, fo r example.' 9 Yet Ye t this work to tooo is generally of limited value in addressing the basic problems of classification raised by social science. Proceduralists a nd source-oriented comparativists alike simply d o not tr thee kinds of tryy to answer th questions that strike nonlawyers as most important. This situation has ha s some strange consequences: for example, when Andrei Shleifer a n d other leading economists decided to focus on the importance of th thee la law w for development, they seized, in a much-cited article, on the th e civil lawcommon la law w distinction. What mattered, they thought, w as whether a given country belonged to the on e legal "family" or th thee other.2" Y et as their critics have argued (in law w distinction sheds (i n my view rightly), the civil law-common la little light on th thee problems that concerned them." Why d id these economists not focus on th di d they think the thee socioeconomic functions of th thee law? Why did divide between the common la law w and civil la law w "families" w as so important? T h e answer is that when they sa t down to do their research, they found a comparative la law w literature that insisted that th thee common law-civil la law w divide w as what mattered. They ca cann hardly be blamed for believing what they read. Our comparative la law w literature, these economists failed to grasp, is mostly written for fo r lawyers, not for fo r social scientists. Unfortunately, th e classifications comparativists have traditionally employed provide few answers to the kinds of policy questions posed by th thee core policy sciences not only economics, but -

19.

See, e.g.,

MIRJAN R.

DAMAKA, EVIDENCE LAW ADRIFT (1997); MIRJAN R. D A M A M K A , THE

FACES OF JUSTICE AN D STATE AUTHORITY:

A COMPARATIVE APPROACH TO THE LEGAL PROCESS

(1986) [hereinafter DAAWKA, F A C E S OFJUSTICE]. 20.

21.

See Rafael La Porta et al., La w and Finance, 1o6 J. POL. ECON. 1113 (1998). Fo r other work along these lines, see Edward Glaeser & Andrei Shleifer, Legal Origins, 117 Q:J. ECON. 1193 (2002); and Paul G. Mahoney, The Common La w and Economic Growth: Hayek Might Be Right, 30 J. LEGAL STUD. 50 3 (2OO1). See, e.g., Daniel Berkowitz, Katharina Pistor & Jean-Francois Richard, Th e Transplant Effect, 51 AM. J. COMP. L. 163, 167 (2003) ("[T]he way in which a country received its formal law is a much more important determinant of the current effectiveness of its legal institutions than the th e particular legal family that it adopted."). In general, when the th e literature cited above, see supra note 20, makes important observations, those observations involve some factor other than the th e particular legal family in question. Mahoney, for example, points to the "association" of th e common law with limited government. He mounts an interesting

th e differing influence of "landed aristocrats an d merchants" in historical argument about the

England an d France. Mahoney, supra note 20 , at 504-05. This is a claim well worth discussing, but it is a claim about political economy, the th e force of which is blunted if we focus on the common law family as such. Oddly, the authors who work in this vein pay no attention to aspects of the common law tradition that arguably may have ha d some real importance for commercial development, notably the th e common law's suspiciousness toward just-price regulation.

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cann address such political science an d sociology as well. Yet classifications that ca policy questions are ar e badly needed: if w e wish to understand ho w different w e must assessquite socioeconomic played differ, sorts ofF roles th thee differing o r example, law. Indeed,orders w e need answers to some basic questions. by political scientists commonly assert that postwar Germany h as a "neocorporatist" economy. What shape, as John W. Cioffi asks, does th thee la law w

law w takes in, say, take in such an economy?22 Is it different from the shape that la la w take a different shape in parliamentary systems th e United States? Does the th e law from the shape it takes in presidential systems?23 A n d so o n. O n e might hope to find answers to these kinds of questions in any thoughtful basic textbook on vain. n. comparative law, but on e would hope in vai Like other reflective contemporary comparativists, therefore, I will abandon la w framework in exploring the topic of this th e familiar common law-civil law

a different Article, se sett of policy speak tolike the th e effort Taking as page of finetoscholars U go Robert Kagan,' Maryissues. Ann Glendon," from the th einwork Mattei,

6

Mark Roe,27 John Reitz, 8 David Gerber,29 and Katharina Pistor, s° I

la w focused on the policy problems of modern aim ai m to write comparative law societies, rather than o n the parochial traditional viewpoint of lawyers. We

22.

23.

Th e importance of this question is highlighted in John W. Cioffi, State of he Art: A Review thee Ar t and Emerging Research, Essay on Comparative Corporate Governance: T he State of th 5o 6 (2000) (book review). 48 AM. J. COMP. L. 501, 5o6

This is a theme in

ROBERTA. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW

(2001).

id.

24.

Se e

25.

E.g., MARY ANN GLENDON,

ABORTION AN D DIVORCE IN WESTERN LA W (1987); MARY AN N

GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AN D FAMILY IN TH E UNITED STATES AND WESTERN EUROPE (1989).

26 .

Fo r a recent example from Mattei's large output, see Ugo Mattei, A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance, io IND. J. GLOBAL LEGAL STUD. 383

hiss useful effort to arrive at a system of classification independent of traditional (2003). Fo r hi categories, see Mattei, supra note 18. The latter article is unpersuasive to me , since it understates the difference in degree of professionalization between European and American traditions. 27.

E.g., Mark J. Roe, Modern Politics an d Ownership Separation, in CONVERGENCE AND PERSISTENCE IN CORPORATE GOVERNANCE 252 (Jeffrey N. Gordon & Mark J. Roe eds., 2004)

Politics]; s]; Mark J. Roe, Some Differences in Corporate Structure [hereinafter Roe, Modern Politic Germany, Japan,and the United States, 102 YALE L.J. 1927 (1993). 28 .

29 .

E.g., John Reitz, Political Economy and Contract Law, in NEW 247 (Reiner Schulze ed., 2007). E.g.,

DAVID

J.

GERBER,

LA W

AN D

COMPETITION

IN

FEATURES INCONTRACT INCONTRACT LAW

TWENTIETH

CENTURY

PROTECTING PROMETHEUS (1998). 30.

E.g., Berkowitz et al., supra note 21.

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PRODUCERISM

need to return to the th e tradition of Montesquieu, th thee great social scientist w h o

pioneered the study of comparative law, and whose approach remained dominant until th thee field w as captured by lawyers with more limited vistas in th e mid-nineteenth century." Here, however, it is important to add a methodological proviso. It is n ot m y aim ai m to identify the "correct" essential classification of an anyy given system. In particular, I will not claim that the th e correct way to characterize American la law w is as a purely consumerist legal order. Good comparative la law w should never claim to offer any single correct classification. Classification in comparative law is no t like Linnean classification in biology. It does n ot identify essential differences between legal systems comparable to the essential differences between animal species. Instead, classification in comparative law la w is necessarily ad hoc: it serves fo r to explain h ow different legal orders can be classified in a variety of ways for the purpose of answering a variety of questions. Legal systems must always be viewed through a prism of multiple classifications. It is important to emphasize this methodological point, because it is a point that is so easy to miss. Thus Shleifer a nd hi hiss coauthors, after reading the th e comparative la law w literature, drew the conclusion that the law w was th e distinction between common la law w and civil la something like th e distinction between reptiles and mammals -a classificatory distinction of such fundamental importance that it would dictate th thee behavior of legal systems in almost every respect and every environment. Yet Ye t of course it is nothing of the sort: it is a classification that is useful fo forr some purposes, but not others.

Accordingly, th thee object of this Article is simply to identify on e of many classificatory schemes that w e can ca n use us e fo th e analysis of modern law-the forr the

EUROPE:

classificatory scheme "consumerism versus producerism." I shall not argue that American la law w is in every respect an essential essentially ly consumerist system; n o r that the French an d German systems are in every respect essentially producerist ones. Instead, I will measure these different legal orders against contrasting ideal types of consumerism and producerism. The Weberian theory of ideal types3"

31. Fo r a taste of th thee liveliness of early-nineteenth-century

comparative law, it is worth browsing the work of a once famous, now forgotten scholar, Charles Comte. As its title suggests,

C H A R L E S COMTE, TRAITI DE LEGISLATION, ou EXPOSITION DE S Lois GtNgRALES SuIvANT LESQUELLESLE S PEUPLES PROSPIRENT, DtPtRISSENT, OU RESTENT STATIONNAIRES

[A TREATISE ON LEGISLATION, OR EXPOSITION OF THE GENERAL LAWS IN ACCORDANCE WITH

(Paris, FMIix Locquin 2d. ed ed.. 1835) wa s concerned with th thee sorts of problems of comparative social organization that more recent comparative law has ha s generally forgotten. Like his predecessors Montesquieu and John Millar, Comte had real learning and deep analytic insight. WHICH NATIONS PROGRESS, DECLINE, OR REMAIN STABLE]

32.

1 MAX WEBER,

n.5,

57-58

ECONOMY AN D SOCIETY:

AN

OUTLINE OF INTERPRETATIVE SOCIOLOGY

20-21

&

(Guenther Roth & Claus Wittich eds., Ephraim Fischoffet al. trans., 1968).

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ha s been adopted by some of the th e finest comparativists, notably Mirjan 33 4 Damaka an d Robert Kagan. It offers a means of analyzing legal orders without claiming to describe them perfectly in every detail. Weberian ideal types never correspond perfectly to any real existing order. The right w ay to speak about ideal types is to say sa y that existing legal orders more or less approximate them, and that is the th e language that I will use. In particular, despite th e claims of anti-American critics, it is n o t the th e case that th thee United States presents a perfectly realized consumerist order. Nevertheless, I will argue that in many legal areas and economic sectors, the th e United States does approximate th e ideal type of a consumerist legal order more than do th thee legal orders of Germany a nd France. Unless w e recognize that fact, w e will be poorly la w today. equipped to analyze some of the most important issues in global law II.

CONS UME RIS M

VERSUS

PRODUCERISM:

A

BRIEF

HISTORY

OF

A

DISTINCTION

With those methodological preliminaries, w e ca cann turn to th thee problem of consumerism and producerism, and in particular with th thee revealing early history of the th e conflict between these tw o orientations in th thee early twentieth

century. What d o w e mean by "producerism"? T o understand this term, which is admittedly not part of o ur accustomed comparative law la w jargon, w e must remember what economic regulation an d social philosophy looked like in the pre-twentieth-century world. From the sixteenth through nineteenth centuries,

economic regulation w as heavily concerned with th e rights and privileges of various actors involved in th e production an d distribution of goods. Thus in th e early modern period there w as a great deal of law la w intended to regulate an andd protect guilds, an d a great deal of law la w intended to guarantee th thee monopoly 5 rights of th e vendors of various kinds of goods." T o be sure, premodern

33.

See, e.g., DAMANKA, FACES

34.

KAGAN,

35.

I hope the reader will accept this large proposition, which could easily be the subject of a book in itself, without full-scale discussion. The most important example in the common

OF JUSTICE,

supra note 19, at 9.

supra note 23 , at 11.

law literature may be The Case of Monopolies, (1603)

Eng. Rep.

American authors sometimes like to treat this famous case as a ratification of the primacy of a consumer interest in competitive prices, but careful historians have shown that it involved the competing claims of a guild an d the grantee of a royal monopoly. See Jacob I. Corr6, Th e 77

126o (K.B.).

Argument, Decision, and Reports of Darcy v. Allen, 45 EMORY L.J. 1261 (1996); D.

Seaborne Davies, Further Light on T he Case of Monopolies, 48 LAW Q. REV. 394 (1932); Barbara Malament, Th e "Economic Liberalism" of SirEdward Coke, 76 YALE L.J. 1321, 1343-44 (1967). For the broader history, especially with regard to guilds, see, for fo r example, ANTONY BLACK,

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contract la law w worried about some of the th e same consumer rights w e worry about today, at least a bit.36 Nevertheless, premodern la law w regarded the problems of the economy largely as problems of the supply side-problems in sorting ou t rights among those involved in producing and distributing goods and services. Most especially, it regarded the th e problems of th e economy as problems in determining h o w market share should be distributed among competitors. The nineteenth century brought new ne w kinds of economic law-most notably, law about the rights of collective labor as well as th thee rights of industrial competitors. T h e great problem of the th e nineteenth century was, of course, conflict between labor an d capital. 3 7 B ut that conflict, too, w as a supply-side conflict. The process of production w as not just the th e focus of economic regulation during these centuries, moreover; it w as the th e focus of social philosophy as well. T o take only th thee most famous examples, John Locke, Karl Marx, an d Emile Durkheim all thought that the th e dynamic of the th e social order had to do with

shifting patterns of production. 3s A famous passage from the writings of th e young Marx is typical of the worldview focused on production: [A]s soon as the th e distribution of labour comes into being, each m an has ha s a particular, exclusive sphere of activity, which is forced upon him an d from which he cannot escape. H e is a hunter, a fisherman, a shepherd, hi s or a critical critic, a nd must remain so if he does n ot want to lose his means of livelihood; while in communist society, where nobody has on e exclusive sphere of activity but each can become accomplished in an y branch he wishes, society regulates the th e general production and thus makes it possible for m e to do one thing today and another tomorrow, to hunt in th thee morning, fish in the th e afternoon, rear cattle in the evening,

GUILDS AN D CIVIL SOCIETY IN EUROPEAN POLITICAL THOUGHT FROM TH E TWELFTH CENTURY

TO THE PRESENT 36.

(1984).

Fo r limited concern with implied warranties in particular, see S.F.C. THE HISTORY OF THE C O M M O N LAw 126-32 (1985); Friedrich Kessler,

Consumer Under Modern Sales Law: A Comparative Study (pt.

MILSOM, STUDIES IN

The Protection of th thee

1), 74 YALE L.J. 262, 262-72

(1964). 37.

Within a literature too vast to cite, see, fo forr example,

WH.LLIAM

H . SEWELL, JR., WORK AND

REVOLUTION IN FRANCE: THE LANGUAGE OF LABOR FROM THE OL D REGIME TO 1848 (198o).

38.

EMILE DURKHEIM, TH E DmSION OF LABOUR IN SOCIETY (W.D. Halls trans., MacMillan 1984) (1893); JOHN LOCKE, SECOND TREATISE OF GOvERNMENT (C.B. Macpherson ed., Hackett 198o) (169o) (discussing the labor theory of property); KARL MARX, CAPITAL: A CRITIQUE OF POLITICAL ECONOMY (Ben Fowkes trans., Penguin Books 1976) (1867).

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criticize after dinner, just as I have a mind, without ever becoming 39 hunter, fisherman, shepherd or critic.

From this point of view what mattered, in both la law w and human life, w as th thee organization of production. T o be fully human w as to make things, and the primary problems of economic regulation were problems in sorting out the conflicting rights of participants in th thee processes of production an d distribution.

There were different schools of thought in this pre-twentieth-century,

preconsumerist world. Later nineteenth-century left-wing thinkers, especially those under the th e influence of Marx, tended to emphasize workers' interests an d rights. Others took different views. Thus, th thee late nineteenth century saw sa w th e rise of what is sometimes called "organized capitalism" -the rise of a program that focused on the rights and interests of capital. In particular, there were many advocates of the th e idea that manufacturers should defend their interests, and sort out their conflicts, through industry associations and cartels. 4 The later nineteenth century also sa saw w the th e rise of th thee modern "corporatist" tradition, notably among Catholic social thinkers. 4' Here th thee idea w as that society should be organized into producer groups, which were to constitute th e basic units of a ne w corporatist order. 4 A t the th e core of this corporatist producerism lay '

'

idealization of guild organization as the best form fo r structuring a healthy society: th e best sort of economic identity, corporatists believed, w as that of th e artisan craftsman, integrated into a guild structure that guaranteed him a life of dignity and satisfying productivity. T he most famous of European corporatist

39.

Karl Marx, The German Ideology (1845), reprinted in TH E MARX-ENGELS READER 146, 16o

(Robert C. Tucker ed., 2d. ed. 40.

RUDOLF HILFERDING, DEVELOPMENT

1972).

FINANCE CAPITAL: A STUDY OF THE LATEST PHASE OF CAPITALIST

367-68 (Tom Bottomore ed.,

Morris Watnick & Sam Gordon

trans.,

Routledge & Kegan Paul 1981) (1910); ORGANISIERTER KAPITALISMUS: VORAUSSETZUNGEN UN D

ANFANGE

[ORGANIZED

CAPITALISM:

CONDITIONS AN D

Winkler ed., 1974). 41.

(Heinrich August

See James Q . Whitman, Early German Corporatism in America: Limits of the "Social" in the Land of Economics, in THE RECEPTION OF CONTINENTAL IDEAS IN TH E COMMON LA W WORLD 1820-1920,

4z.

ORIGINS]

at 22 9 (Mathias Reimann ed., 1993).

For a rapid survey, see se e CARL LANDAUER, CORPORATE STATE IDEOLOGIES: HISTORICAL ROOTS AND PHILOSOPHICAL ORIGINS 59-92 (1983). For more in-depth treatments, see RALPH H.

BOWEN,

GERMAN

THEORIES

OF THE CORPORATIVE

STATE, WITH SPECIAL REFERENCE TO TH E

PERIOD 1870-1919 (1947); MATTHEW H. ELBOW, FRENCH CORPORATIVE THEORY, 1789-1948: A CHAPTER IN TH E HISTORY OF IDEAS (1953); an d HEINRICH HEFFTER, DIE DEUTSCHE SELBSTVERWALTUNG IM 19 . JAHRHUNDERT: GESCHICHTE DE R IDEEN UN D INSTITUTIONEN [GERMAN SELF-GOVERNMENT IN THE NINETEENTH CENTURY: A HISTORY OF IDEAS AN D

INSTITUTIONS] (1950).

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programs were promoted by the Italian Fascists and the Nazis, whose economic program of "corporatism" w as based on the proposition that guildlike "producer" identity should play a fundamental role in the th e social an d political structure of society. 43 B u t fascists were not alone in advocating

corporatist policies. These corporatist movements are of special interest fo forr this Article, since it is often argued that continental Europe is still characterized by "neocorporatism."' In particular, it is important to summarize some ke keyy

corporatist beliefs. First, corporatists defined the category of "producers" very broadly. Here they were generally eager to put distance between themselves and th e Marxist theory of class conflict. Marxists thought of workers as the producer class whose intere interests sts mattered, an d believed that more or less violent conflict between labor an d capital w as inevitable. Right-wing corporatists, by contrast, insisted that the th e workers were only a subclass of the th e larger community of "producers." A ll persons engaged in th thee process of modern production a n d distribution fell under th e rubric "producer": workers, capitalists, and shop owners alike counted. This meant that producer conflicts could be settled relatively peaceably, through corporatist representative institutions. 41 Corporatists promoted various legal measures to this end. They tried to eliminate labor strife. (This w as of course particularly true of th thee fascist regimes, which used repressive means against labor.46) They also tried to tame competition between industrial competitors. Thus they generally regarded cartels as beneficial phenomena: cartels, it wa wass argued, could limit

43.

Se e James Q. Whitman, O f Corporatism,Fascism, an d the FirstNew Deal, 39 AM . J. CoMP. L. 747, 753-55 (1991).

44.

Th e seminal article is Philippe C. Schmitter, Still the

of Corporatism?, in TH E NEW CORPORATISM: SOCIAL-POLITICAL STRUCTURES IN THE IBERIAN W O R L D 8S (Frederick B. Pike & Thomas Stritch eds., 1974). For recent literature on this theme, see KONZERTIERUNG,

VERHANDLUNGSDEMOKRATIE

UND REFORMPOLITIK

Century

IM

WOHLFAHRTSSTAAT

[CONCERTED

ACTION, NEGOTIATED DEMOCRACY, AND REFORM POLITICS IN THE WELFARE STATE] (Sven Jochem & Nico A. Siegel eds., 2003); HOWARD J. IARDA, CORPORATISM AND COMPARATIVE POLITICS 74-75 (1997). For France, see id . t 75-76; and LA FRANCE, MA LA D E DU CORPORATISME? [FRANCE: AILING FROM CORPORATISM?] (Steven L. Kaplan & Philippe Minard eds., 2004). On the European level, see Hugh Compston & Justin Greenwood,

Social Partnership n the European Union, in SOCIAL PARTNERSHIP IN THE EUROPEAN UNION 154 (Hugh Compston & Justin Greenwood eds.,

2001).

More generally on Europe, see THE

CORPORATE STATE: CORPORATISM AN D THE STATE TRADITION IN WESTERN EUROPE (Andrew

Cox & Noel O'Sullivan eds., 1988). 4S.

Whitman, supra note 43, at 756-61.

46.

E.g., TIMOTHY W. MASON, SOCIAL POLICY IN THE THIRD REICH: THE WORKING CLASS AN D

THE "NATIONAL COMMUNITY" (Jane Caplan ed., John Broadwin trans., Berg Publishers 1993) (1977).

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"destructive" competition within industries. 47 (This to tooo w as a characteristic of a fascist economics.4 ) T h e introduction of a modern corporatist guild order, producerists argued, would lead to a world of harmonious cooperation thee various producer groups of a modern economy. between all th Other aims of these corporatist movements reflected their idealization of craft production. In particular, they often proclaimed hostility to large chain stores and discount prices: large-scale retailers, they held, threatened to drive traditional craft production out of business. W e ca cann ge t a flavor of this aspect of th thee corporatist program by reading a wickedly perceptive author of the 1930s, th thee novelist Lion Feuchtwanger. Feuchtwanger's 1933 novel T h e Oppermanns chronicled the fate of a Berlin Jewish family with Hitler's seizure of power in that terrible year. 49 Feuchtwanger's fictitious Oppermann family owned a large discount furniture store, and as Feuchtwanger explained, that meant that they stood on the side of what w e no w call th thee "consumers." Their "Aryan" business rival Heinrich Wels described h o w th thee newly triumphant Nazi movement viewed the problems of retail:

"Oppermann customers buy good goods cheaply," w as a household phrase.... O ne might sleep more comfortably in Wels beds, a nd the Wels tables might be more durably constructed, but people preferred to invest less money, even if what they bought w as a bit less substantial.... However during recent years, things had taken a turn for the better. A movement w as making headway which spread the idea that hand-made articles were better suited to th e character of the German people than standardized products of factories run on international lines. This movement called itself National-Socialism. It freely expressed what Heinrich Wels h ad long secretly felt, namely that the Jewish firms with their cut-price methods were responsible fo forr Germany's decline."0 Indeed, th thee Nazis agitated violently against large department stores, proposing to seize them all and turn them over to small craft organizations."s

47.

48.

The European treatment of cartels has a complex intellectual history that I leave to the side here. Se e GERBER, supra supranote note 29, at 51-62, 132-48. E.g., AVRAHAM BARKA, NAzi Hadass-Vashitz trans., 199o).

ECONOMICS: IDEOLOGY, THEoRY, AND

POLICY 188-89 (Ruth

(Viking Press 1934) (1933).

49.

LION FEUCHTWANGER, THE OPPERMANNS

so.

Id Id.. at 18.

51.

wass Point Sixteen of the th e Nazi Party Program. For a fuller discussion, see HEINRICH This wa UHLIG, DI DIE E WARENHAUSER IM DRITrEN REICH [DEPARTMENT STORES IN THE THIRD REICH]

88 &passim (1956).

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Nazis were not the only ones to talk in such terms. Anti-chain store agitation, wass widespread in Europe. 2 A 1939 often with a nasty dose of anti-Semitism, wa hiss forr example, pleaded with hi French critic of American-style consumerism, fo compatriots to insist on "quality" artisanal products, rather than accepting the "standardized, ersatz product line." 3 Europeans o n both the th e right a nd the th e left

in the 1930s were thus already making a claim that w e still hear today: that "cut-price methods" pose some kind of a danger to national well-being. T w o points about these various producerist movements deserve emphasis. First, although they divided into mutually hostile left-wing an d right-wing th e left shared a belief in th e th e right a n d the movements, movements on both the primacy of producer identity. This deserves some emphasis, since when th e left-wing side: Americans look upon producerism they often perceive only the they tend to think they are seeing socialism. Socialism is, however, only o ne th e supply side. Second, none of these thee political accent on the w ay to put th wass o ne movements, whether left-wing o r right-wing, imagined that there wa thee contrary, all of them presupposed that the single producer interest. On th

world of producer politics w as a world of conflicting producer interests. All of thee politics of producerism as a politics of class conflict. When them thought of th w e speak of producerist movements, w e are thus not speaking of movements favoring "the" producer interest. There is no such thing. Instead, producerist movements are movements that focus o n the supply side movements that thee problems of perceive th e basic problems of law a nd politics to be th thee conflicting interests of different producer groups. reconciling th Producerist ideas some left-wing, some right-wing were thus dominant in th thee early-twentieth-century European politics of class conflict. America, by th e home of consumerist programs -programs contrast, early on became the thee United th e market. T o be sure, th focusing o n rights on th e demand side of the -

-

-

States too to o had producerist movements during th thee early twentieth century. In thee National Recovery Administration (NRA), the corporatist particular, it had th th e same N ew Deal scheme that w as struck down in Schechter Poultry.' During the th e anti-chain-store agitation that led to the sa w the th e United States saw period, the

52.

See Se e VICTORIA

DE GRAZiA, IRRESISTIBLE EMPIRE: AMERICA'S ADVANCE

THROUGH TWENTIETH-

CENTURY EUROPE 135-37 (2 0 0 5 ).

53.

PIERRE

ARLET,

EDUCATION

LA

OF THE

CONSOMMATION:

CONSUMER]

Consumption Regimes in Europe,

L'EDUCATION

143

(1939),

193o-197o:

DU

CONSOMMATEUR

[CONSUMPTION:

quoted in Victoria de Grazia,

Changing

Comparative Perspectives on the Distribution

Problem, in GETrING AND SPENDING: EUROPEAN AND AMERICAN CONSUMER SOCIETIES IN THE

TWENTIETH CENTURY 59, 78 (Susan Strasser et al. eds., 1998). 54.

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

The corporatist

th e NRA, an d its sources in Italian corporativism in particular, are discussed in character of the Whitman, supra note 43 .

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Robinson-Patman Act of 1936." s Moreover, American thinkers laid some of the classic foundations of the producerist outlook. John R. Commons, the great institutionalist economist, is an important example. In a famous 19o9 article chronicling the history of American shoemakers, Commons traced the

transition from an older form of guild-like producer organization to modern

forms of production. s6 In the older, producerist world as it existed from the seventeenth century through the early nineteenth century, shoemakers were organized into artisan guilds that were devoted to the maintenance of high standards of quality, which were energetically policed within the guild. Any shoemaker who tried to sell shoddy goods-goods that did not meet guild

standards-could be barred from the market, since the guilds maintained effective monopoly control. Of course, this system brought higher prices fo forr consumers: shoddy goods can be produced more cheaply. Nevertheless, it

maintained high standards of artisanal quality. T h e transition to modern forms of factory production w as a transition away from artisanal quality, an d toward

low prices. A s factories succeeded in churning out cheaper goods at lower

prices, th thee o ld guilds were slowly destroyed

s7

Nevertheless, despite the Robinson-Patman Act, and despite the views of people like Commons, American producerism was never as strident or

politically dominant as the th e European variety s 8 Quite th e contrary: a case ca cann be made that consumer identity ha d come to seem increasingly important in the Anglo-American world from the th e eighteenth century onward. 9 American historians have argued that American political life had already begun to take a

55.

U.S.C. §

Richard C. Schragger, The Anti-Chain Store Movement, Localist Ideology, and the Remnants of the Progressive Constitution, 192o-194o, 90 IOWA L. REv. loll, 15

13

(2000);

see

o6o-64 (2005).

56 .

John R. Commons, American Shoemakers, 1648-1895: A Sketch of IndustrialEvolution, 24 Q J.

ECON. 39 (1909). 57.

Id. at 73-75. One also finds American authors who echoed the dark anti-Semitism of many

European anticonsumerists. See, e.g.,

LEON SAMSON,

THE

AMERICAN MIND:

A

STUDY IN

SocIo-ANALYsis 38-39, 182-83 (1932) (claiming that the American, like the Jew, is "an alien to art," and that American consumerism prevents Americans from seeing the truth of class conflict). 58.

Even the Robinson-Patman Act itself focused, in a characteristically American way, on price discrimination. Se e 15 U.S.C. § 13-13a (2000). There is nothing comparable in European law. Moreover, even the most aggressively corporatist of American public figures still spoke

in consumerist terms. See the discussion of Donald Richberg in Whitman, supra note 43 , at

768. For the early rise of a culture of consumer sovereignty in the United States, also se e GRAZIA, 59.

DE

supra note 52, at 103.

See, e.g., NEIL

& J.H.

PLUMB, THE BIRTH OF A CONSUMER SOCIETY: THE COMMERCIALIZATION OF EIGHTEENTH-CENTURY ENGLAND (1982). McKENDRICK, JOHN BREWER

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"consumerist turn" by th thee late nineteenth century.6" By th thee early twentieth th e century, figures like Walter Lippman were identifying consumerism as the great characteristically American movement, "destined to be stronger than the forr Lippman, w as thus a interest either of labor or of capital. ", 61 Consumerism, fo radical political program. T o him, it seemed possible to en d th thee scourge of class conflict by recharacterizing every member of American society as a member of a thee class of consumers. This w as a common idea among earlysingle class, th twentieth-century American thinkers. It is worth quoting Walter Weyl, whose N ew Democracy appeared in 1912:

In America to-day th thee unifying economic force, about which a majority thee citizen as a consumer of ...s forming, is the common interest of th wealth .... he producer (who is only th thee consumer in another role) is highly differentiated. He is banker, lawyer, soldier, tailor, farmer, shoeblack, boy. messenger H e is rural capitalist, workman, money lender, urban The consumer, on the money borrower, worker, worker. other hand, is undifferentiated. All men, women, a n d childr children en wh o buy shoes (except only th thee shoe manufacturer) are interested in cheap good 6 shoes. 2

T o think of Americans as "consumers" w as thus to think of them as members of a kind of universal class, with a single common interest-an keyy to interest in buying things that were both "cheap" a n d "good." T h e ke creating justice and social peace in democratic America lay in making consumers understand that they all shared this common interest. Rising prices, Weyl thought, were encouraging just that sort of attitude. Producer protections, in the form of tolerated monopolies, were causing prices to rise. thee forms of American politics: This w as gradually causing a shift in th Despite ... verwhelming superiority in numbers, the consumer, finding it difficult to organize, has often been worsted in industrial battles.... As prices.., rise, however ... new insistence is laid upon th thee rights of the consumer, and political unity is based upon him.... ar e n o w voting as consumers.6 3 Men who voted as producers are

6o.

GLICKMAN, supra note

61.

WALTER LIPPMAN, DRIFT AN D MASTERY

62.

WALTER

E.

WEYL,

TENDENCIES IN 63.

1,t xiii.

THE

THE

54-55

(1914), quoted in SANDEL,supra note 5, t

222.

NEW DEMOCRACY: AN ESSAY ON CERTAIN POLITICAL AN D ECONOMIC

UNITED STATES

25 0

(Harper & R ow 1964) (1912).

Id. at 250-51.

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Democratic politics, focused on the imperative of bringing prices down, could thus unite Americans in a single national interest, putting an en d to the th e particularisms of th thee producer orientation. American consumerism thus started largely as a political program, as a w ay of changing people's attitudes as voters, an d fo r a long time it remained that way. Thus, in 1 9 2 9 it seemed obvious to True Story Magazine that America ha d found the solution to the "capital-labor war": it h ad created a society in which workers h a d an "equal opportunity to consume. '' 6 In 1932, no less a personage than Franklin Delano Roosevelt could declare, even in th thee face of the destitution of th thee Great Depression, "I believe w e are at th thee threshold of a fundamental change in our popular economic thought, that in the future we ar aree going to think less about th thee producer an d more about the consumer. ''6s By shifting political energies from th thee supply side of th thee marketplace to the demand side, these American figures hoped to achieve social peace. T he history of early American consumerism has been th thee subject of a great deal of scholarship, including widely read studies by both Sandel and Cohen. Both authors see th thee rise of American consumerism as a key theme in the making of modern American political life, an d w e ca cann take their books as exemplary of current scholarly thinking, with Sandel taking the anticonsumerist stand, and Cohen th thee proconsumerist stand. Sandel, in his hi s investigation of American political values, argues that th thee rise of consumerism ha s been fundamentally important to th thee making of America's distinctive legal 66 and political culture. H e focuses on the impact of consumerism o n a number of areas of law. Antitrust is Sandel's first example: th e consumerist campaign slowly eroded th thee producerist outlook in the analysis of antitrust problems. From th thee producerist point of view, the primary goal of antitrust law was to protect a certain class of producers- namely, the competitors in a given industry. Producerist competition la law w thus aimed to prevent "cutthroat" ,

competition, unfair competition designed to drive weaker firms out of business. In particular, it condemned th thee price-cutting practices that allowed

certain big firms to drive out their smaller competitors. 6 It is this attitude that ,

led European producerists to take a benign view of cartels. As Sandel observes, th thee producerist approach to antitrust dominated in America in th thee early twentieth century. This does not mean that Americans

64.

See LIZABETH COHEN, MAKING A NEW DEAL: INDUSTRIAL WORKERS IN CHICAGO, 1919-1939,

at 1oi (199o) (quoting 2 TRUE STORY MAGAZINE, THE AMERICAN ECONOMIC EVOLUTION 34 , 67 (1930)). 65.

Se e GLICKMAN, supra note i, at 15 6 (quoting Franklin Delano Roosevelt).

66 .

Se e SANDEL, supra note 5, at

67 .

See id. at

211-212

221-27.

(discussing th e vision of Brandeis).

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went so fa farr as expressly to bless cartels -something they rarely did.6 It does mean, though, that they had their eye largely on the interest of competitors, rather than consumers.6 9 They perceived th e legal problems as lying on th e supply side. B ut early American antitrust producerism was slowly displaced over th thee course of the th e century by a consumerist approach, which abandoned la w should protect a class of producers (the th e idea that antitrust law competitors), instead holding that it should protect consumers. The aim of th e such consumer protection w as to guarantee that consumers should receive the lowest possible prices. The consumerist approach did not condemn bigness as such, an d it certainly did not condemn price-cutting practices out of hand. Instead, it judged all markets b y their capacity to deliver competitive prices. th e early twentieth There were inklings of this consumerist approach in the century, but it w as in the 1940S (under the th e influence of Thurman Arnold) and especially since th thee 1970s (under th e influence of Robert Bork) that it has triumphed.7 ° Sandel sees a similar transition from producerism to la w of retail, which moved from a condemnation of chain consumerism in th e law th e 193os, to the acceptance of large retailers stores in th e 1920s an d especially the lo w prices. 7' These like Wal-Mart, capable of providing consumers with low movements succeeded in making American law consumerist. lo w prices m ay sound like a triumph indeed to This transition to a world of low th e shift most contemporary Americans. B u t Sandel wants us to think of the toward consumerism as the th e tale of a kind of political tragedy. T o Sandel, like

32-

th e young Marx an d many other pre-twentieth-century thinkers, it seems clear that a healthy political an d moral life is best founded on th e primacy of producer identity, rather than consumer identity. As consumerism took hold, th e law gradually reduced American citizens to mere consumers, n o longer in thee producerist control of their ow n destinies in the th e w ay that producers are. In th era, as Sandel sees it, individuals belonged to self-governing producer associations, like mom-and-pop stores and unions. In the consumerist era, these forms of producer self-government went by the boards.7 2 Sandel's attack th e rise of consumerism is only on the cultural and political consequences of the one of many. In particular we can point to the writings of figures like John

Kenneth Galbraith and Benjamin Barber, both of whom single out th e

68. The great exception is the National Recovery Administration. See generally SULLIVAN & GRIMEs, supra note 9, at 7 (discussing U.S. cartel law). 69 . 1 will not enter into th thee debate over Robert Bork's claims, now generally rejected, that early

id.. at 6. thee primary goal. See id American antitrust law already took consumer welfare as th

supranote supra note 5, at 231-49 (summarizing the familiar history of antitrust).

70 .

SANDEL,

71 .

Id. at 227-31; see also Schragger, supra note

72.

SANDEL,

55.

supranote supra note 5, at 201-03.

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advertising industry as the culprit in the th e creation of a society of credulous an d disempowered consumers. Cohen tells a historical story similar to that of Sandel, a story that pits 74 shee draws a quite different moral from it. consumers against producers. B ut sh Cohen is on e of a number of historians who have seized on the th e rise of consumerism in the th e effort to explain th thee decline of class conflict politics in America. These historians have claimed, most importantly, that th thee American labor movement w as deeply transformed as "workers" came to think of themselves as "consumers.""5 F o r historians like Cohen, the tale of twentiethcentury American history is the th e tale of th e substitution of consumer identity fo forr producer identity, just as it is fo forr Sandel. not paint history B u t Cohen in Sandel's dark colors. Rather than bemoaning loss of "citizenthis th thee does producer" sh e sees some gains in the identity, she th e shift to consumerism. As citizens ceased thinking of themselves primarily as "workers," they began to seek rights in their guise as "women" o r "African Americans." African Americans, fo forr example, could claim rights as consumers, since, in th thee proverbial phrase, their dollar w as as good as anybody else's. The decline of producer identity, and th e

concomitant decline of class conflict politics, thus opened th thee way for a ne w 76 and fruitful kind of rights politics. The rise of consumerism was, in that sense, fundamental to the making of modern America. III.

REFINING

THE

DISTINCTION

A t first glance, these battles over consumerism and producerism m ay seem to belong to a w ar that ended long ago-a w ar that ended in victory fo forr consumerism on both sides of th e Atlantic. Indeed, Victoria de Grazia's elegant a n d entertaining recent book IrresistibleEmpire is a history of exactly that - of a France, Germany, and Italy that have mostly abandoned their o ld traditions in face of th e "irresistible" American consumerist model.' She has amply demonstrated that Europe has ha s changed since th e early twentieth century, 78 today. all know th e continent of supermarkets that w e becoming the

supra note 14 ; JOHN KENNETH

GALBRAITH, THE AFFLUENT SOCIETY (3d ed. 1976).

73.

BARBER,

74.

For her rejection of Sandel, see COHEN, supra note 7, t 409.

75.

See Se e the th e literature discussed in GLICKMAN, supra note i, at

155-56.

Glickman himself pushes

the transformation back to the later nineteenth century. Id. at 156. 76. 77.

78 .

COHEN,

supra note 7, at 22, 31-53.

As one of her chapter titles runs, her book is the history of "The Consumer-Citizen: How Europeans Traded Rights for Goods." DE GRAZiA, supra note 52, at 336-75. Id. at 376-415.

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A nd indeed, to judge by the th e public pronouncements of leading European figures, producerism in Europe might seem to be a thing of th e past. Today, European policymakers often proclaim their commitment to consumerist legal programs. The main European Union Web site, fo forr example, declares that th e European Union aims to foster competition, because competition "cuts prices, raises quality and expands customer choice." 9 Over th thee last fe few w years in particular, Brussels has ha s been making aggressive efforts to shift European la law w in 8o consumerist directions. In countries like Germany, th thee old ol d producerist approach has been under attack for fo r tw twoo generations: Americans moved forcefully to replace8' the law w with after World War II antitrust; thane do ld German law w based new ne w la on American today, aftercompetition lethargy, decades of la Europeans are making energetic attacks on cartels. 82 Contemporary European

law, in both France a nd Germany, states firmly that the protection of consumers must be a primary goal, though not the only one. 83 Moreover, developments in both the th e economy an d th thee broader everyday culture seem to conspire to foster consumerism in continental Europe. Global competition, it might seem, demands that European countries eliminate the sort of inefficient producer protections associated with the th e producerist orientation. Indeed, both the th e system of global trade agreements and the policies of the th e European Union are dedicated to breaking down the sorts of thatmust createinevitably to trade. obstaclestempt Meanwhile producer protections th thee ever-rising flood of consumer goods ordinary Europeans to think of themselves primarily as consumers. Indeed, so have European cultural critics complained fo forr decades. So hasn't consumerism triumphed in Europe? Is there really still any an y point in talking about consumerism versus producerism? There is indeed. Consumerism versus producerism remains a vital analytic opposition -indispensable in particular fo r understanding continental Europe. Political scientists continue to see continental Europe as a world of "neocorporatism," a world in which policies are made through negotiation

79 .

Europa:

8o.

Fo r current activities of the European Commission an d the th e European Union, see Europa, http://europa.eu/press-room/index-en.htm (last visite visitedd N ov. 9, 2007).

81.

Se e LISA

Activities of th thee European Union -Competition, indexen.htm (last visited Nov. 9, 2007).

http://europa.eu/poVcomp/

MURACH-BRAND, ANTITRUST AUF DEUTSCH: DER EINFLU6 DER AMERIKANISCHEN

ALILERTEN AUF

DAs

GESETZ GEGEN WETTBEWERBSBESCHANKUNGEN

(GWB)

NACH

1945

[ANTITRUST AUF DEUTSCH: THE INFLUENCE OF TH E AMERICAN ALLIES ON THE LAW AGAINST RESTRAINTS ON COMPETITION AFTER 1945] (2004).

82 .

CHRISTOPHER HARDING & JULIAN JOSHUA, REGULATING CARTELS IN EUROPE:

LEGAL CONTROL OF CORPORATE DELINQUENCY 117-142 83 .

See

A STUDY OF

(2 0 0 3 ).

infra Parts IV & V.

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between the state and producer associations; a nd its law la w ha hass not lost its producerist coloration. Despite all of th e pressure for change, continental Europe is managing to remain significantly more producerist than the United thee Continent is changing, we ai m to show. But even to the extent th States, as I aim cannot understand what is at stake unless w e bear the consumerismaree only fully producerism opposition in mind. T h e politics of consumerism ar

th e converse politics of producerism. intelligible if w e understand the To understand the lasting vitality of the consumerism/producerism usee both terms with extreme care, beginning with opposition, though, w e must us law w definition and analysis. some preliminary work of comparative la Le Lett us start by defining "consumer" an d "producer." "Consumer" is a straightforward term: a "consumer" is an y member of society w ho is engaged in consumption of goods or services. "Producer," by contrast, is a more complex category. Figures like Weyl lumped together all economic actors who thee general rubric "producer." They defined a were n o t consumers under th "producer" as an y actor w h o provided some factor in th thee production an d distribution of goods an d services. 8 4 By this definition, the rubric is very broad indeed: "producer" includes both workers and capitalists, both management and labor, both industry an d retail. It includes all actors on the supply side of

th thee market. thee exceedingly So does it make sense to work with a contrast between th thee category of "consumers"? It does, b ut broad category of "producers" a nd th w e must do so with care. It will not do simply to call it a contrast between, on th thee on e hand, la law w dedicated primarily to protecting consumer interests, an d on la w dedicated primarily to protecting producer interests, as so the other hand, law thee early twentieth century. 8 Appealing many commentators have done since th as th thee simple opposition of consumerism and producerism m ay sound, it is no t adequate unless w e a dd some caveats. First, both concepts, "consumer interests" an d "producer interests," carry significant ambiguities. Second, "consumers" and "producers" are not tw o different real existing classes of persons. Let Le t us begin with th thee ambiguities of "consumer interests." O n the one hand, when w e speak of "the interest of consumers," w e m ay be speaking of thee interest of consumers in purchasing consumer economic interests, i.e., of th thee widest goods an d services at th e lowest possible price, in having access to th variety of goods an d services, in having easy access to credit, in being able to thee other thee like. O n th shop at maximally convenient hours an d locations, and th

84 . 85.

See WEYL, supra note See supra Part

62.

II.

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hand, when we speak of "protecting th thee interest of consumers," w e may be

speaking of consumer protection and safety legislation, that is, legislation on such matters as products liability, th thee purity of food and drugs, nondeceptive advertising, and th thee like. (I will us usee th thee shorthand "consumer protection law" to describe this second type of consumer-oriented legislation.) Walter Weyl, and later many other consumer advocates such as Ralph Nader, have treated these two interests as identical: they have argued that low w prices can ca n always go hand in hand. As Weyl consumer protection and lo declared, consumers have an interest in shoes that ar aree both "cheap" and "good.",8 T he European Union speaks in th thee same tones, when it praises competition as a force that both "cuts prices" and "raises quality." 87 B ut the problem is manifestly much harder than that, and harder in ways that matter fo forr comparative law. T h e consumer economic interest and th thee consumer protection interest ar aree quite different, a n d in many respects directly at odds. T h e spirit of consumer protection legislation is obviously paternalistic: consumer protection legislation limits consumer choice. T h e spirit of la law w protecting the consumer economic interest, by contrast, aims to maximize consumer choice: it idealizes th thee consumer as sovereign. Indeed, the consumer

protection interest and the consumer economic interest m ay be entirely inconsistent with each other. If w e define th thee consumer interest as an economic interest in having the widest available range of goods at the lowest possible prices, then consumer protection legislation operates against consumer economic interests. After all, consumer protection legislation eliminates o ne class of goods-goods that are relatively unsafe or relatively low-quality, but also relatively cheap -that would otherwise have been available fo forr consumers to choose. These tw o forms of consumer-oriented la law w ar aree also most naturally at home in different institutional settings. Consumer protection legislation is the natural province of bureaucracy, an d indeed tends to be produced through paternalistic bureaucratic regulation everywhere. By contrast, th thee consumer economic interest ha hass an obvious affinity with relatively free, unregulated markets. To state it in the simplest terms: th thee core value behind th thee protection of consumer economic interest is consumer sovereignty, maximally immune from bureaucratic interference. T h e tw o also have natural affinities with different kinds of economic policy. La w favoring th thee consumer economic interest will seem appealing to policymakers w ho ai aim m to stimulate consumer spending, while la law w oriented toward consumer protection will not.

86.

87 .

WEYL, supra note

62.

Europa: Activities of the European Union-Competition, supra note 79. 79 .

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aree different These tw o contrasting conceptions of the consumer interest ar enough that one can imagine tw o different polities, both equally committed to "the consumer," but each having la law w diametrically opposed to th thee la law w of the

other. (As I will suggest, such is, in part-though only in part-the contrast sa y that a thee United States.) T o say between continental Western Europe and th thee "consumer interest" is thus to leave fundamental given legal system favors th questions unresolved. T he same is true of saying that a given legal system favors "producer interests." "Producer" is a term that refers to every actor providing some factor in the production an d delivery of goods an d services. Correspondingly, it is almost never possible to speak of an y single, monolithic, "producer" interest, as thee early twentieth century well understood. "Producer" is a th e thinkers of th broad, diffuse, and conflict-ridden category, an d any given piece of legislation m ay favor on e group of "producers" over another. F or example, sometimes legislation favoring "producer" interests may favor the interests of organized thee interests of investors, or of nonorganized labor. T h e most labor over th obvious example of this is legislation making it difficult to lay off workers, which favors a particularproducer interest (the interest of existing employees, thee enterprise) at th e expense of other producer interests w h o provide labor to th (the interest of equity holders, w ho provide capital to the enterprise; a nd the interest of those aspiring workers who cannot find employment). T h e same is th e true of legislation that, fo r example, empowers small shopkeepers to block the establishment of large retail stores. Such legislation manifestly favors o ne producer interest (small shopkeepers) over another (large retail chains). Or thee example of competition law. Competition law m ay again, w e m ay take th favor th thee interests of existing market participants against the interests of th e aspiring new entrants into the market. It m ay also favor the status qu o in the thee ambitions of on e player to dominate. distribution of market share against th la w favoring "the" producer interest in general, but law la w law w is not law Such la favoring one set of producers (existing competitors) over another (aspiring law w is oriented to entrants a nd aspiring dominant players). T o say that la producers is thus not to say that it favors "the" producer interest. Instead, it is la w that assumes a politics of conflict between producer to say that it is law thee familiar language of Marxism, class conflict. groups-or, in th Despite th thee fact that producer interests are so varied an d conflict-ridden, la w favoring the consumer law w is quite different from law producer-oriented la law w favoring an y producer interest may seem to threaten economic interest. A ny la law w favoring producer th e economic interest of consumers. In particular, la interests, whatever those interests may be, threatens to raise prices. Thus

legislation limiting layoffs m ay create market rigidities that raise prices. It can accordingly be perceived as legislation that works against consumer economic

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interests. T he same is true of both legislation favoring small shopkeepers over large retail stores, an d of law favorable to cartel formation. These ar aree all forms of la law w that m ay well operate to th thee economic prejudice of consumers, keeping prices higher, limiting opportunities to shop, a n d so on . Legal systems that favor producer interest m ay be quite diverse, but they are all alike in their refusal to treat such threats to the consumer economic interest as th e most important threats facing th thee law. Conversely, th e spread of economic consumerism tends to threaten traditions of class conflict politics. Such indeed was exactly th thee program of figures like Lippman and Weyl, w ho believed that focusing on the interests of th e consumer would put an end to the th e politics of th e interests of labor and capital. Anybody w ho is committed to th e politics of class conflict can ca n thus be expected to regard economic consumerism as a menace. There is thus a clear an d recurring conflict between the producer orientation an d the consumer economic interest. T o the th e extent that the consumer economic interest dominates the thinking of policymakers, th thee law of producer interests, an d more broadly th thee politics of class conflict, are in danger. T h e same, however, is not true of the consumer protection interest. O n the contrary, producer-oriented law la w and consumer protection legislation may often go hand in glove. Legislation intended to guarantee the th e quality an d safety of consumer goods can easily have th thee effect, intended or unintended, of protecting existing producer interests. This ha hass to do largely with th thee dynamic of competition. High quality a nd safety standards m ay tend to protect the position of existing competitors in a given industry. If there are such consumer protection standards in place, ne new w entrants cannot break in by offering relatively low-quality goods. Moreover, as we shall see, high quality standards are ar e often associated with entrenched artisanal traditions that m ay benefit from producer-protectionist policies. What all this means is that we must be very careful in describing th thee conflicts over consumerism and producerism in the world today. The truly bitter current world conflicts over consumerism a nd producerism revolve around the consumer economic interest, th thee consumer interest in competitive prices an d shopping convenience. What troubles critics of consumerism worldwide is first and foremost the danger that a politics of lo low w prices will endanger historic producer protections. For example, th thee spread of b ig bo x stores like Wal-Mart raises precisely the question of whether lower prices an d greater convenience for consumers justify diminished rights fo forr three groups of producers: workers, suppliers, and small shopowners. Wal-Mart, so its critics charge, is able to offer economic benefits

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to consumers by diminishing worker salaries and job protections, squeezing its suppliers, and d rivi riving ng out competitors whose shops have less square footage. 8 The conflict surrounding Wal-Mart is thus best understood as a conflict between a focus on the consumer economic interest on the th e on e hand, and a focus o n various producer economic an d social interests on the other: WalMart flourishes by emphasizing consumer rights rather than producer rights, promising to offer low prices for consumers by attacking social and economic interests on the th e supply side. Similar things ca cann be said about many other areas of law as well -for example, antitrust (is it law that guarantees competitive prices fo forr consumers, or law la w that guarantees market share for competitors?) or law w of the th thee la th e World Trade Organization (should world trade guarantee low consumer prices worldwide, o r should it protect producers in individual countries?). La Law w favoring the consumer protection interest, by contrast, does not raise la law w issues. sense th the e same kinds of T o be sure,thin "consumerist," since it proclaims e some primacy of consumer consumer protection identity. B u t is a country that opts to favor consumers through consumer protection law can be a country that leaves many producer protections in place. As I shall argue, that is exactly th thee pattern often found in France and Germany. Hanging over all this is on e additional fundamental difficulty that deserves constant reiteration: "consumers" and "producers" are not two tw o different classes of persons, but tw twoo kinds of constructed legal-economic identities. Political leaders like Ralph Nader often speak as though "consumers" and "producers" were tw o different classes of real existing persons, with two tw o different, conflicting, sets of interests.8s So do European advocates of a proconsumer 90

Ye t of course that is nonsense. Everyone has both identities. The revolution. Yet choice between consumerism and producerism is not a choice about whether "the" consumers or "the" producers will ultimately win out, but a value choice about which of these two possible economic identities deserves priority in a modem market order. Such indeed is the shape that debate over Wal-Mart takes today, for example, as w e can ca n see both in America and abroad. In America, Democratic

88.

Fo r these widely leveled charges, see, fo forr example, George S. McGovern, Th e End of 'More,' L.A. TIMEs, M ay 22, 2006, at B1i; and Andrew Ratner, United States of Wal-Mart: What Is

the True Cost of Those Low Prices?,PrrrSBURGH POST-GAzETTE, Mar. 12, 2006, at H-6. 89. Fo r an example from the Ralph Nader stable, see Peter MacFarland, Consumer Power: North American Style, NEW INTERNATIONALIST, M ay 1985, at 26, 26, available at http://www.newint.org/issue147/north.htm ("The new wave will have consumers banding together to take th thee price-setting initiative away from the th e producers."). go .

Mettler, supra note io.

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th e arrival of politicians charge that Wal-Mart exploits its workers. 9 In India, the fo r their livelihoods. 92 Wal-Mart is protested by small shopkeepers w ho fear for by asserting that it saves consumers "billions of Wal-Mart counters such charges thee interests of dollars by squeezing costs." 93 T h e conflict here is not between th thee American workers of a tw twoo clearly defined classes of persons. After all, th thee same will be true of given small-town Wal-Mart are also its shoppers, and th future Indian shopkeepers. If they d o not themselves shop at Wal-Mart, other sayy where the members of their community will. In fact, it is difficult indeed to sa thee extent w e conceive th e community lie, to th long-term economic interests of the of th thee community as a community of consumers. forr the B ut th e real debate is not about some clear economic choice fo community. The real debate is about ho w w e should imagine that community -whether w e should conceive of it as a community of consumers,

o r as a community of producers. T h e real conflict is on e between tw o incommensurable visions of what counts as justice in a modern economy. It is thee modern thee imagination, asking whether, when w e imagine th conflict in th economy in the abstract, w e feel instinctively that it is "the worker" o r "the shopkeeper" who matters most, or "the consumer." 9 4 It is a conflict over la w to intervene to protect rights on th e law th e vocation of the whether w e think it is the th e demand side. It is a conflict over, in President the th e supply side, o r on the Roosevelt's words, "popular economic thought."9 ' IV.

ATLANTIC

CONFLICTS:

ANTITRUS T

AN D

RETAIL PRICING

How is this conflict in "popular economic thought" playing out on the two law w that reflect th e great thee la sides of th thee Atlantic? C an w e see patterns in th political conflicts over consumerism and producerism? Here, as in other work, tw o northern th e United States a n d two I will focus o n th e comparison between the continental European countries, France an d Germany. Economic consumerism countries: to some extent, both France a n d Germany

ca cann be found in all three th e ideal type of a legal order oriented toward the have been moving closer to the law w h as consumer economic interest. T o some extent, conversely, American la

91 .

Election, Democrats Run as Wal-Mart Foe, N.Y. Ey e on Election,Democrats Adam Nagourney & Michael Barbaro, Eye

92 .

TiMES, Aug. 17, 2006, atAi. Wal-Mart's Welcome to India Includes Demonstrations,N.Y. TIMES, Feb.

93.

Nargourney & Barbaro, supra note 91.

23, 2007,

at C3 .

thee conflict is on e between "the 94 . T he same is true in Europe, where, as de Grazia observes, th thee sovereign consumer." thee American notion of th thee social citizen an d th European vision of th DE GRAZIA, supra note 52 , at 342.

95 .

See

GLICKMAN,

supra note 1,at 156 (emphasis added).

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embraced consumer protection. It is not th thee case that America is the home of a pure form of economic consumerism, or that France and Germany have refused every form of economic consumerism. In some sectors in particular -notably

agriculture -deeply entrenched producerist attitudes exist on both sides of the th e Atlantic. Nevertheless, reviewing a variety of areas of th law w reveals that significant thee la relative differences between American consumerist style an d a continental producerist style persist. Continental Europe ha hass by no means abandoned the politics of class conflict - quite the th e contrary. Moreover, in areas critical to everyday life, continental la law w continues to resist economic consumerism. Despite efforts to foster economic consumerism in Europe, th thee differences in legal values remain stubbornly present, an d w e will not grasp th thee nature of important social an d political conflicts at work today unless w e recognize them. Let Le t us start with what Americans call "antitrust" an d Europeans call "competition law." Over th thee course of th thee twentieth century, and especially

over th thee last thirty years, American antitrust la law w ha hass moved strongly in the direction of protecting th thee economic interests of consumers through fostering competition. According to standard American antitrust analysis, markets ought to be structured in such a w ay as to maximize benefits to consumers, and in particular to guarantee th thee kind of competition that yields th thee lowest possible prices. Exactly h o w this en d is to be achieved is of course a matter of great contention, an d American la law w is open to the argument that there m ay be forms of competition that benefit consumers without necessarily guaranteeing that all

goods will always be sold at th thee lowest possible price. 96 B u t th thee basic

commitment to protecting consumer economic interest is n ow almost universally shared in the United States, both in government a nd among scholars. Competition is th thee watchword, an d antitrust la law w is thought of as protecting consumers, not competitors. T he primacy of consumer economic interest has ha s come to seem so self-evident that it hardly requires an y effort at justification.9 7 Now, antitrust is an area of th thee la law w where w e would most expect to see convergence between th thee approaches of th e United States an d Europe, at least thee extent that big to th bi g deals and bi bigg firms are involved. Competition crosses borders an d consolidation takes place on a global scale. There are deals an d business practices that must be approved by authorities in both th thee United States and Europe, and there is considerable communication between

Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 127 S. Ct. that resale price maintenance ma y give consumers more options).

96.

See

97.

E.g., IRVING SCHER, ANTITRUST ADVISER 1-2, 1-3 ( 4 th ed. ed . 2005) (claiming that th thee purpose of antitrust law is to protect "consumers of goods an d services").

2705, 2715 (2007)

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law w in specialists on either side of the th e Atlantic. 98 If there is on e area of th thee la which w e would expect to se seee pressure toward th thee creation of a single standard, this is it. A nd the pressure is certainly there. Nevertheless, sharp cultural limits remain. Europe has ha s long differed from the th e United States. As Americans see it, the th e European tradition has ha s sought to protect competitors rather than consumers as Americans would say, "W e protect competition, yo u protect competitors." 99 Aditi Bagchi summarizes the th e clash as Americans commentators have historically perceived it it.. From the American point of view: -

While US regulators are interested in the expected effect of a merger on prices, "the European Commission [has] normally disapprove[d] a merger or impose[d] regulatory conditions if th thee merger significantly enhance[d] the market share of a dominant firm, create[d] joint dominance, o r seriously distort[ed] the playing field fo r competitors." While the United States looks fo forr corporate behavior that might undermine consumer welfare, the European Union ha hass been "sensitive to a wider range of single-firm conduct, especially when the 'dominant' ar e significantly smaller."1"' firm's rivals are

(noting

This contrast in approach involves the most fundamental questions of antitrust. From the prevailing point of view of American law, there is nothing wrong with bigness as such. The right question is whether the dominance exercised by a given firm or firms provides consumers with competitive prices. Not so in Europe. Europeans have been more willing to regard bigness as a danger, even if it benefits consumers: permitting b ig competitors to prosper m ay harm smaller ones.

98 .

Fo r a survey of th thee two regulatory schemes, see Douglas H. Ginsburg, Comparing Antitrust Enforcement in the United States and Europe, 1 . COMPETITION L. & ECON. 427 (2005). For Fo r recent examples of firms facing regulatory authorities on both sides of the th e Atlantic, see, for example, Grant Robertson & Eric Reguly, Thomson-Reuters Merger a BalancingAct, G L O B E & MAIL (Can.), M ay 16, 2007, at B3 ; an d Paul Wilson, Deal Would Vault Hexion to Top 5, COLUMBus DISPATCH, July 13, 2007, at 8C . or contact between specialists, see, fo forr example, Neelie Kroes, Member of th thee European Comm'n in Charge of Competition Policy, Speech at the Fordham Corporate La Law w Institute: Preliminary Thoughts on Policy Review of Article 82, at 2 (Sept. 23 , 2005) (o n file with th thee author).

99.

Eleanor M. Fox, "We Protect Competition, You Protect Competitors," 26

WORLD COMPETITION

L. &ECON. REV. 149, 149 (2003).

oo. Aditi Bagchi, Th e Political Economy of Merger Regulation, 53 AM. J. CoMP. L. 1, 4-5 (2005) (quoting Eleanor Fox, Global Markets, National Law, and the Regulation of Business: A View from the Top, 75 ST. JOHN'S L. REV. 383, 395 (2OOl); Michael Jacobs, Mergers and Acquisitions

in a Global Economy: Perspectives rom Law, Politics, and Business, 13 DEPAUL Bus. L.J. 1, 7 (2000)) (alterations in original) (citations omitted).

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B ut are things changing? In recent years Europeans have certainly been responding to a real drive in favor of adopting something like th thee American approach. In particular, E.U. Competition Commissioner Neelie Kroes, an aggressive advocate of change, has ha s declared that enforcement agencies should hesitate to intervene in markets "unless there is clear evidence that they are no t functioning well."" ° ' A nd indeed, current E.U. law has been making a real effort to take consumer economic interests into account.' °2 As a result, bureaucrats in Brussels have made some highly publicized moves intended to lower consumer prices, actively imposing heavy fines on certain cartels.' 3 In particular, they have been trying to bring competition to th e energy industry in order to lower prices-though it remains unclear whether these efforts will really succeed in breaking down national protections for fo r the benefit of 04 consumers. There have also been shifts in th thee domestic German an d French systems that ar aree the th e focus in this Article: these systems, which once avowedly

protected only competitors, now no w purport to protect both competitors an d 05 consumers.' All of this must make some difference. , 6 T h e idea that law should be about consumers ha hass been spreading into countries like France an d Germany since the dark days of the 1930s.

ico. Kroes, supra note 98. 102.

E.g.,

ULRICH

LOEWENHEIM,

KARL

KARTELLRECHT [CARTEL LAW] 6 (2005)

M.

MEESSEN

&

ALEXANDER

RIESENKAMPFF,

I

(arguing that consumers are beneficiaries of cartel

regulation); BARRY J. RODGER & ANGUS MACCULLOCH, COMPETITION LA W AN D POLICY IN TH E EC AN D U K 153 ( 3d ed. 2004) (arguing that consumers must receive pass-on of benefits from restrictions on competition). 103.

Fo r current activities of the European Commission, see, for example, Press Release, European Commission, Competition: Commission Fines Members of Lifts an d Escalators Cartels

over 699o

Million

(Feb.

21,

2007),

http://europa.eu/rapid/pressReleasesAction

.do?reference=IP/o7/2O9. Fo r th thee broader European Union, see Europa: Activities of the th e European Union - Competition, supra note 79. 104.

See Keith Johnson, Electric Attraction: For Europe's Utilities, a Frenzied Power Grab: As

DeregulationNears, Bids To p $ioo Billion; Will Consumers ConsumersBenefit?, Benefit?, WALL ST. J., Apr. 11,007,

at Ai. ios.

For Germany, see Gesetz gegen den unlauteren Wettbewerb

[Statute Against Unfair

Competition], July 3, 2004, BGB1. I at 1414, 5 1 (F.R.G.) ("Dieses Gesetz dient dem Schutz der Mitbewerber, der Verbraucherinnen und un d der Verbraucher .... " (This law serves to

protect competitors an d consumers)). Fo r th thee previous history, see HELMUT KOHLER & JOACHIM BORNKAMM, WETrBEWERBSRECHT [COMPETITION LAW] 39-40, 545-55 (24th ed . 2006). 1o6. The Economist, for example, thinks it can detect a "subtle but bu t discernible shift in competition

policy" toward favoring lower consumer prices in the retail sector, at least in Britain. CompetitionPolicy in the EU : Big Chains Enjoy a Buyer's Market, ECONOMIST, Feb. 15, 2007, at

78.

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thee la law w where fo r all that, Europe remains Europe, even in this area of th B ut for global pressures are so intense. T he most recent evidence came in June 2007, thee French President often perceived as an when Nicolas Sarkozy, th sett out to diminish American unreconstructed pro-American, nevertheless se influence on European competition policy. Sarkozy, conscious of domestic French political pressures, succeeded in eliminating th e endorsement of "free thee European thee draft organic treaty of th an d undistorted competition" from th Union. 1 7 Instead, he proclaimed nothing less than "the en d of competition as an ideology an d dogma" in Europe. o8 If Nicolas Sarkozy will not advocate

thee French political world, nobody will. "free a nd undistorted competition" in th international onal comp etiti etition on law, has declared, As Eleanor Fox, a close observer of internati 09 aree values, beliefs, larger pictures and contexts" in play.' "there ar Consequently, despite European efforts to shift in an American direction, it law w remains th e case that "U.S. law privileges single-firm action" while "E.U. la   privileges contestability of monopolized markets."" Values and beliefs do no t fade away easily, even under intense global pressure. thee international business As a result, important differences remain in th cann have real impact on the ar e differences that ca fo r big bi g firms."' These are climate for bi g multinationals, which must operate in both American an d operations of big European legal environments, fo r example, on Microsoft's efforts to introduce it itss new ne w Vista operating system. T h e Vista system poses a potential threat to Microsoft's competitors. Consequently, at least fo r a while, Vista faced much thee United tougher going obtaining regulatory approval in Europe than in th thee European Commissioner put it with regard to Microsoft, States. As th law w is meant to operate to "the benefit of al l companies an d European European la gett attention, so do "all companies," an d as a consumers."". 2 If consumers ge keyy question about Vista was thee European point of view, th e ke result, from th whether it w as designed to exclude rivals and solidify Microsoft's market share.

107.

Honor Mahony, Sarkozy Claims 'Competition' Victory at Summit, EUOBSERVER.COM, June 25 , 2007, available at http://www.ezilon.com/information/article-18l 4 8.shtml.

1og.

Id Id..

lo9.

Eleanor M. Fox, Monopolization, Abuse of Dominance, an d the Indeterminacy of Economics: Th e U.S./E. U. Divide, 2006 UTAH L. REv. 725, 740.

110.

iii.

Id.

For the continuing truth of this observation, see Stephanie Kirchgaessner, Intellectual Property Line Highlights an Atlantic Rijt, FIN. TuMEs (London), Nov. 3, 0o6, at 24. Cf . Amanda Cohen, Surveying the Microsoft Antitrust Universe, 19 BERKELEY TECH. L.J. 333, 35 4 (2004).

112.

fo r Competition Policy, Introductory Remarks at Press Neelie Kroes, European Comm'r for Conference on Imposing Penalty Payments on Microsoft (July

12,

2006) (emphasis added),

http://europa.eu/rapid pa.eu/rapid/pressReleasesActi /pressReleasesAction.do?refere on.do?reference nce =SPEECH/o6/452. availableat http://euro

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Holding that such w as indeed the case, th thee European Commission imposed massive fines fo forr Microsoft's abuse of its dominant position in 2004 an andd 2006.113 By contrast, complaints by Microsoft's rivals to th thee U.S. Justice 4

Department were unavailing fo r competition officers compelled Microsoft."' Nevertheless, th thee Microsoft's victorious rivals in th thee

months." Eventually, pressure from state the Justice Department to ac actt against politics remain tellingly different: even United States had to find ways to argue that ' 6

were acting in "consumers' interests."" While th e future is unclear, it is they surely th thee case that Microsoft must ac actt in a world in which there will be tw o different regimes fo r years to come. In this dual world, its it s decisions must be justified in th thee United States in terms of "consumers' interest" and the benefits of competition, while those same decisions must be justified in Europe, at least in part, in terms of the interests of "all companies." Europe m ay have moved somewhat in th thee direction of U.S. law, but at a minimum it remains more oriented toward th thee producer interest of competitors. Producerism hangs on . If global pressures have not forced convergence when it comes to giant transnational firms an d huge transnational deals, th thee same is even truer of the th e everyday world of retail. Indeed, fo forr m y purposes, it is particularly valuable to focus on the la law w of law w of retail shows th After all, th thee la thee most direct impact of differing retail. values and beliefs on th thee lives of consumers, an d demonstrates through many telling signs that th thee consumer economic interest matters less from th thee French and German point of view than it does from the American. As discussed above, th thee consumer economic interest is, first an d foremost, an interest in lo low w prices. Accordingly, it is a matter of some significance that continental European la law w frowns on various forms of discounted pricing that are considered acceptable in America. Both th thee French and Germans are simply less willing than Americans to allow retail prices to be set se t competitively, an d their unwillingness contributes to th thee making of an everyday consumer culture that does much less to -ratify th thee primacy of

economic identity than is th consumer thee case in th thee United States. T o illustrate th thee difference, I begin with m y first of several examples from a major recent American business failure in Europe: Wal-Mart's July 20o6 decision to abandon its German operations, at a loss of some $1 illion. As the th e

113.

114.

See id.

Kevin J. Delaney & Robert A. Guth, Microsoft Rivals Gripe to U.S. About Its Ne w Vista Software, WALL T. J., Feb. 1O, 20o6, at B4. B4 .

us. us . Stephen Labaton, Microsoft Will Alter Vista System, N.Y. TiMES, June 20, 2007, at n6 .

C1.

Ellen Nakashima, Extended Monitoring Sought or Microsoft; Google Asks Court To Lengthen '02 Antitrust Decree, WASH. POST, 26 , 2007, June Di (quoting David C. Drummond, Senior Vice President an d Chief Legal Officer, Google)at(emphasis added).

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Wall Street Journalobserved, Wal-Mart's debacle in Germany h a d to do in part with Germany's "laws against selling goods at below cost, which made it difficult to lure shoppers with so-called loss leaders."'1 7 Indeed, what Wal-Mart discovered, in its German misadventure, w as a difference of great interest for comparative law, a nd of arguably momentous significance fo r international retailing. Wal-Mart's business model-like that of numerous other U.S. under cost. Many firms-depends on the us i.e., togoods loss leaders, usee of drawpriced into their American leaders consumers firms use loss in order establishments, in the hope that they will buy more profitable goods. Some firms depend heavily on this practice. For example, large appliance retailers ca n make such as Circuit City can sell appliances at or below cost, because they can ' arranties." es." money by inducing consumers to buy w arranti Yet Ye t such practices ar aree generally forbidden in Europe. Laws forbidding loss leaders are not unknown in the United States: most American states also have laws, dating to the Depression, that prohibit below-cost sales. 9 B ut in the ar e rarely enforced.12 A nd while American antitrust United States these laws are la law w treats below-cost pricing as suspicious if there is other evidence of illegal

by contrast, behavior, ba n below-cost pricing outright.2 In Europe, law, declared an isno a tcentral part of competition permissible by th e this sort ofit bdoes European Court of Justice in the famous 1993 Keck decision, which marked a kind of European declaration of independence from American economic aree an important bar ba r approaches to retail.' Laws limiting below-cost pricing ar thee use us e of American retailing practices. Wal-Mart an d its business counsel to th should have understood this, an d comparative lawyers ought to understand it lett the too: continental Europeans are much readier than Americans to le thee cost of raising prices fo forr government meddle with retail practices, even at th consumers. One conseque consequence nce is to create an important barrier to entry fo r large American retailers like Wal-Mart. This does not mean that Europe does no t have bi bigg box stores. There are many of them. What it means is something

117.

118.

119.

A nn Zimmerman & Emily Nelson, With Profits Elusive, Wal-Mart To Exit Germany, WALL ST . J., July 29, 2006, at Al. thee This strategy may be collapsing in th thee current market. See Gary McWilliams, Minding th Store: Analyzing Customers, Best Bu y Decides Not All Are Welcome, WALL ST. J., Nov. 8, 2004, at Ai. Ai . See Schragger, supra note 55 , at lO66-68; Francis M. Dougherty, Annotation, Validity, Construction, and Application of State Statutoty ProvisionProhibiting ales of Commodities Below Cost-Modern Cases, 41 A.L.R.4th 612 (1985).

120.

See Dougherty, supra note 119; Schragger, supra note 55, at io66-68.

121.

E.g., SuLLIvAN&GRIMES, supra note 9, at 168-69.

122.

Case C-267/91, Criminal Proceedings Against Keck and Mithouard, 1993 E.C.R. 1-6097.

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subtler: European b ig box stores cannot engage in the kind of pricing practices that are ar e the th e stuff of America's consumerist retailing sector. N o r is below-cost pricing the th e only such issue. Europeans, unlike Americans, engage in other sorts of direct retail price regulation too.'23 T o be sure, most prices are set competitively in Europe, just as they were in th thee 1930S. Nevertheless, in certain key areas Europeans are willing to regulate prices in ways that reveal deep differences between their attitudes and those of Americans. F o r example, Europeans have extensive law regulating when merchants can ca n put goods on sale. Thus in France, merchants m ay ordinarily hold storewide "sales" ("ventes") only during legally regulated "sales seasons," a n d even then only with regard to certain goods: as an anyy regular visitor to Paris, that world capital of shopping, knows, cheap prices on high-end goods come in January a n d July, when the la w allows "les soldes."" 4 Other sorts of salesth e law especially specious "going-out-of-business" sales of the kind that ar aree common in the th e United States-are vigorously combated in France. If you announce a going-out-of-business sale in France, th thee authorities will check to make sure that you actually go out of business.

'

French newspapers even run articles lionizing the th e heroic officials w ho investigate fraudulent "sales. " "6 Germany is n o longer quite like France: as of 2004, German la law w no longer directly 7 regulates sales seasons This is part of Germany's new effort to bring

123.

For example, the current German pricing ordinance, which went into effect in 2004, includes a four-page appendix of mathematical formulae. Verordnung zur Regelung der Preisangaben [Ordinance on the Regulation of Pricing], Mar. 14 , 1985, BGBI. I at 582, § 6 (F.RIG.).

124.

The dates for th thee sales seasons, tourists m ay wish to know, are se sett by Dipartement,and m ay vary by a week or so in different parts of France. Fo r th thee general law with further references, see

(Litec ed. 2002). Apart from les soldes, merchants m ay only put particular items already present in the th e shop on "promotion" - an d even then subject to considerable regulation. Low-end goods are ar e often offered on "promotion" - though here too there is quite a bit of regulation. Fo r a guide aimed at the lay consumer, see AMICALE DES CADRES SUPIRIEURS DES SERVICES 3d

DIDIER FERRIER, DROIT DE LA DISTRIBUTION [LAw OF DISTRIBUTION]

EXTERIEURS

ET

DE S

LABORATOIRES

DE

LA

DIRECTION

DE

LA

§ 458,

at

254

CONCURRENCE,

DE

LA

CONSOMMATION ET DE LA RE'PRESSION DE S FRAUDES [ASSOCIATION OF SENIOR EXECUTIVES FO R EXTERNAL SERVICES AND FOR INVESTIGATIVE OFFICES CHARGED WITH THE MANAGEMENT OF COMPETITION, CONSUMER AFFAIRS, AND COMBATING FRAUD], GUIDE JURIDIQUE ET PRATIQUE

DU CONSOMMATEUR [A LEGAL AND PRACTICAL GUIDE FO R THE CONSUMER]

Guchet ed.,

83-87 (Emile

2005).

125.

See generally C. COM. arts. L31o-1, L31o- 5 (Fr.) (limiting liquidation sales to a two-month period and subjecting violators to a fine).

126.

ont Leroy, Ils 19, 2007.

127.

la chasse auxfraudeurs [They Hunt Down Defrauders], PARIs-NORMANDIE, Jan.

For the previous history, see KOHLER & BORNKAMm, supra note

(discussing older laws regulating sales seasons).

lo5, at 39-40, 545-55

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consumerism to its law. Nevertheless, w e should not be deceived into thinking hass gone wholly American: German authorities continue to that Germany ha police other sorts of sales vigilantly. 2' 8 Retail practices are relatively free in the United States. In Europe, by contrast, they are hedged in by a forest of regulations. European policymakers understand perfectly well that these regulations Ye t even when Europeans amend their forr consumers. Yet result in higher prices fo th e French la law w of retail in order to lower prices and stimulate consumption (as the thee regulations, n o t by did in th thee summer of 2005), they do so by fiddling with th 29 deregulating.' Why is there such price regulation in Europe? Europeans give tw twoo answers. T h e first answer is th e obvious one, and the on e that surely suggests itself to both Microsoft an d Wal-Mart: forbidding "excessively" low prices serves th thee interest of th e existing competitors in a given retail sector. It is a producerist practice. If b ig operations like Wal-Mart cannot sell below cost, they will find it harder to drive their competitors out of business. Preventing such practices is the th e stated purpose of th e current French law, which forbids prices that are "abusively low compared to cost" if they "intentionally or effectively prevent an enterprise o r on e of its products from coming to ha s been the stated purpose of European competition market."' 3 ° Such indeed has thee legal limitations that la law w since th e early twentieth century. 3' In this sense, th aree no different from the th e legal prevented Wal-Mart from using loss leaders ar limitations that have hamstrung Microsoft. law w no Nevertheless, contemporary European lawyers insist that their la longer favors only competitors. Like American law, they insist, it protects

,28. KOHLER & BORNKAMM, supra note 105, 129.

at 743-44.

In August 2005, France amended th thee Lo Loii Galland of 1996, in order to lower prices so as to Law w N o. 96-588 of July 1, 1996, Journal Officiel de la stimulate consumer demand. La R~publique Franaise [J.O.] [Official Gazette of France], July 3, 1996, p. 9983, modified by La Law w N o. 2005-882 of Aug. 2, 2005, Journal Officiel de la R~publique Franqaise [J.0.] so , though, by forbidding [Official Gazette of France], Aug. 3, 2005, p. 2 sur 114. They did so, thee thee full cost of the "marge arridre," a fee paid by th distributors to pass onto consumers th distributors of high-end goods to induce retailers to display their goods prominently. wa s attributable to the Studies showed that as much as thirty percent of the cost of goods was law w limited that to twenty percent. Th e French government di d no t marge arrire.The new ne w la Law w No. 96-603 of July 5, 1996, choose to amend another law limiting large retail practices, La Journal Officiel de la ~publique Fran~aise [.O.] [Official Gazette of France], July 6, 1996,

p. 1o,199. This episode raises an important issue that I do no t pursue here, but that w as arguably of importance in Wal-Mart's German failure; in practice, European retailing treats high-end and low-end goods quite differently. 130.

C. COM. art. L420-5 (Fr.).

131. ee supra Part II.

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consumers too. 132 So how could anyone argue that law la w prohibiting lowering prices favors consumers? Americans might suppose that Europeans ha d done an economic analysis showing that consumers would suffer in th e long ru runn economically from below-cost pricing, even if they benefited in th thee short term. But that is not th thee case. Instead, the answer is that European lawyers tend to define the consumer interest not as an economic interest but as a kind of consumer protection interest-an interest in being protected against "misleading" practices. A current French handbook explains reasoning that most Americans may find bizarre: "Enticing sales tactics ["la promotion"] consist in inciting the purchase of a product or th thee hire of a service. Such tactics ar aree often harmful to th thee consumer, because, by offering an advantage, they create pressure to make an inopportune purchase." 33 "Lowering th thee price," the th e same text ominously notes, "has a very strong tendency to incite the th e ' 13 4 consumer." Consumers, by this reasoning, cannot be trusted to decide for fo r themselves when a purchase is "opportune," an d so they must be protected against being "incited" through being offered an "advantage." Low prices in particular threaten to "harm" consumers, by disordering their senses an d turning them into foolish shoppers. T he ne new w German statute offers a variant o n th thee same argument - though in terms that m ay well strike Americans as even more bizarre. T he German statute couches its argument, in part, in the grand language of human dignity. "Unfair" competitive practices, th thee law explains, include, among other things: "actions that have a tendency to harm th thee decision-making freedom of consumers or other market participants by exerting pressure in a w ay that forr their humanity ["in menschenverachtender Weise"] or displays contempt fo through other inappropriate or irrelevant influence."'

132.

133.

Gesetz gegen de n unlauteren Wettbewerb [Statute Against Unfair Competition], July 3, 2004, BGBI. I at 1414, § 3 (F.R.G.). FERKIER,

supra

note

124,

at 248 (translation by author) ("La promotion consiste a inciter a

l'achat d'un produit ou t la demande d'une prestation de service. Elle pr~judicie souvent au consommateur en le poussant par l'offre d'un avantage A r~aliser des achats inopportuns ..... ") (citations omitted).

(translation by author) ("La diminution du prix est es t un facteur tr~s incitatif pour le

134.

Id. at

135.

consommateur."). Gesetz gegen de n unlauteren Wettbewerb [Statute Against Unfair Competition], July 3,

24 9

BGBI. I at 1414, § 4 (F.R.G.) (translation by author) ("Unlauter im Sinne von § 3 handelt insbesondere, wer[:] 1. Wettbewerbshandlungen vornimmt, die di e geeignet sind, die 2004,

Entscheidungsfreiheit der Verbraucher oder sonstiger Marktteilnehmer durch Ausiibung vo n Druck, in menschenverachtender Weise oder durch sonstigen unangemessenen unsachlichen Einfluss zu beeintrdchtigen .... ").

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This paragraph m ay seem weird indeed to anyone w ho has ha s never wandered in the forest of the contemporary German codes, with their strange conception of human dignity. Although it speaks of "freedom," th thee paragraph does no t mean "freedom" in the sense in which Americans ordinarily use us e th thee word. This th e fully sovereign consumer, who is deemed th is not the freedom of the thee best judge of his hi s own interests. It is the th e supervised freedom that goes by the German name "Selbstbestimmung": it is "self-determination" under the watchful eye of a caring, supportive government." 36 T he German consumer w h o enjoys this form of freedom must be paternalistically protected against hi hiss own tendency to make ba d decisions including the bad decision to buy something at a low price. Indeed, to offer the German consumer a lo low w price m ay represent, at the th e limit, nothing less than a display of "contempt" for fo r h is "humanity"! Similar things are said in a related area of European law, though on e that is undergoing real change: the law w of retail advertising, which is th e la extensively regulated in ways that are likely to surprise Americans.' 37 Indeed, all of this is pretty astonishing, not to say comical, from the point of view of an American -probably even to those Americans w h o favor -

"libertarian

paternalism.', 1, 8

Can

anyone

really

believe

that

aggressive

marketing could constitute a species of inhumane and degrading treatment? 19 Americans may be tempted to laugh out loud when a French lawyer ponderously declares that "lowering th thee price has a tendency to incite the consumer." Nevertheless, my purpose is not to make fu funn of German or French law. T h e task of comparative law is to arrive at a sympathetic understanding of

136.

Cf

JOSEF

DRExL,

DIE

WiRTSCHAFTLICHE

SELBSTBESTIMMUNG

DES

VERBRAUCHERS

discuss this concept, and the contrast with American ideas, more fully in James Q. hitman, The Two Western [ECONOMIC SELF-DETERMINATION FO R TH E CONSUMER]

(1998). I

Dignity Versus Liberty, 113 YALE L.J. Cultures of Privacy: Privacy:Dignity 137.

1151 (2004).

This is particularly true with regard to the law of comparative advertising, which has ha s been in

considerable flux. In th thee past, European law generally forbade comparative advertising. This is no longer true, but th e law remains quite complex. Fo r France, see REtGIS FABRE ET AL., DROIT DE LA PUBLICITt ET DE LA PROMOTION DES VENTES [LAw OF ADVERTISING

AN D

OF THE

ed . 2002). For Germany, see KOHLER & BORNKAMM, upra note lO5, at 800-03 (discussing Gesetz gegen den unlauteren Wettbewerb [Statute Against

PROMOTION OF SALES] 148-51 (2d

Unfair Competition], July 3, 2004, BGBI. I at 1413, § 6, rdn. 138.

1-5

(F.R.G.)).

See Cass R. Sunstein & Richard H. Thaler, Libertarian aternalism s Not an Oxymoron, 70 U. CHI. L. REv. 1159 (2 0 0 3 ).

139.

is particularly astonishing to see the language of "human dignity" in this context. Germans often claim that their law of "human dignity" grows out of a reaction against the horrors of Auschwitz. But in practice, the everyday German law of human dignity can have remarkably little to do with that terrifying experience. Se e James Q_ Whitman, On Nazi 'Honour' and the New European 'Dignity,' in DARKER LEGACIES OF LAW IN EUROPE: THE It

SHADOW OF

NATIONAL SOCIALISM AN D FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS

243-66 (Christian Joerges & Navraj Singh Ghaleigh eds., 2003).

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n o matter ho w outlandish they m ay seem at first blush. foreign systems, thoughtfully, and seen in context, German and French pricing law Approached is by no means entirely silly, a nd it deserves some respectful attention from comparativists. F o r starters, the us e of loss leaders in America is sometimes 40 thee subject of good discussion.' arguably abusive, in ways that deserve to be th

th e best judges of their own interest. Consumers are no t always clearly the la w of retail has to be judged in its larger More importantly, the th e European law social context. That context is in part economic, and in part sociopolitical. T o th e economic, w e must remember that consumer credit is much less begin with the freely available in Europe than it is in the th e United States. Credit reporting of th e American kind does not exist and is indeed impossible under the norms of 14

1 42

cannot European privacy law. ' Consumers use credit cards much They less. 143 Unlike his American th e w ay Americans do . exploit home refinancing the

hi s own loan officer. counterpart, the ordinary European consumer is not his Because Americans have easy access to credit, they are able to stretch in order forr European consumers to take advantage of a cheap opportunity. It is harder fo forr Europeans to finance to behave that way. Purchases are more difficult fo which means they may indeed be more "inopportune" fo r a given European forr an American. European consumers operate in consumer than they would be fo thee risks of easy consumer credit, a world in which they are protected against th which perhaps does imply that they must also be protected against temptations created by aggressive marketing. Indeed, aggressive marketing of cheap credit

itself poses dangers, as the th e subprime lending crisis that hit America in the summer of 2007 suggests. After all, that crisis involved precisely borrowers lo w "teaser rates.'" 44 w h o took out risky loans because they were tempted by low

14o.

141.

thee sale of warranties in consumer electronics retailing, see supra note 118 an d Fo r example, th accompanying text, arguably preys on consumer irrationality in assessing risk, as well as on fo r warranties. the absence of a developed secondary market for Whitman, supra note 136, at 1190-92. My argument there ha s been challenged. See Jerry Kang & Benedikt Buchner, Privacy in Atlantis, 18 HARv. J.L. & TECH. 229, 258-59 (2004). Kang an d Buchner misrepresent my claims. I certainly did not claim, as they imply, that there is no German credit reporting. Quite the contrary. I described it in detail, but focused thee practices an d goals of German regulation. on the th e differences in th

142.

E.g., Marcus Walker, Behind Slow Growth in Europe: Citizens' Tight Grip on Wallets, WALL ST. J., Dec. 10 , 2004, at Al (noting that Western Europeans have 0.27 credit cards pe r capita, as compared with 2.23 fo forr Americans).

143.

Steven Pearlstein, In Europe, One Size Fits None, WASH. that there is no mortgage refinancing in Europe).

144.

POST,

Dec. 7, 2005, at Di (noting

ForeclosuresLoom as Owners Face Mortgage Maze, See, e.g., Gretchen Morgenson, More Home ForeclosuresLoom N.Y. TIMEs, Aug. 6, 2007, at Ai.

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Failure to regulate prices, it seems, can result not only in woes for consumers, but even in a major economic meltdown. As for fo r th thee sociopolitical context, the European regulation of pricing belongs to a European culture that generally rejects th thee kind of individual sovereignty that dominates in America. As I have argued elsewhere, th e American value of "liberty" plays a comparatively lesser role in Europe, a continent where people tolerate much more intrusive state intervention than in America. 14 This leads to far-reaching differences in th law w of privacy, an d it leads to differences in thee la th thee la law w of retail as well. Just as European legal culture rejects th thee idea that the sovereign citizen ought to be able to keep firearms, it rejects th thee idea that the '

fully sovereign consumer ought to face the dangers of th thee market without agents of th thee state standing reassuringly by his hi s side. Differences in the la law w of retail ar aree thus only on e aspect of a much grander contrast between these tw o great Western legal cultures. In an y case, what matters, in all of this, is not whether th thee Europeans ar aree right or wrong. What matters, fo r purposes of comparative law, is that they ar aree

different. Europeans certainly do feel pressure to favor consumers. A t th e same time, though, they perceive dangers in consumer sovereignty where Americans do not. They are resisting American-style consumerism, in th thee face of all the pressures. This is part of w h y Wal-Mart failed in Germany, an d it is part of what w e should be teaching in comparative la law w classes: w e should be initiating our students into th thee contrast between th thee American culture of maximal consumer sovereignty an d th thee European culture of maximal consumer protection. Let me emphasize that there is nothing antiquarian in teaching such

material. The contrast is very much alive: th law w that I have thee European la summarized is not la law w of th thee 1930s. It is law of 2o04, 2 0 0 5 , 2o6, and an d 2007. Not least, we should recognize that Europeans have defined the th e consumer interest in ways that allow their la law w of competition to continue protecting competitors. The bottom line is that European la law w still finds methods to forbid deliberately lo low w pricing, in ways that help some competitors stay in business. As long as one defines th thee consumer interest as an interest in being protected, rather than an interest in benefiting from lo low w prices, European law la w can continue to protect a class of producers, as it has done fo r generations. V.

REGULATING

RETAIL: HOURS,

MERCHANDISE,

SQUARE

FOOTAGE

As th thee la law w of retail pricing suggests, Europeans care comparatively more about producer interests (and consumer protection), while Americans care

145.

See

Whitman, supra note

136.

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comparatively more about consumer economic interests (and consumer sovereignty). These are differences w e ca cann only understand if w e bear in mind our tw o ideal types of economic consumerism and producerism. W e discover further aspects of this contrast as w e d ig more deeply into th thee law la w of retail shopping. Le Lett us look at a couple of other aspects of th thee la law w of shopping, that most profoundly meaningful activity in modern consumer life. In particular, let us look at the regulation of store hours, merchandise, an d square footage. What is the consumer economic interest when it comes to shopping? We can define it, straightforwardly enough, as an interest in lo low w prices, wide selection of goods, and shopping convenience. This interest is typically best served by stores offering a wide range of goods an d open for maximally long

hours. Consumers prefer large diversified retail establishments that open early and close late. Retail law that is unfavorable to consumer economic interests comes, correspondingly, in several forms. It may be law limiting store hours. It m ay be la law w limiting the th e range of merchandise that retailers m ay offer; for fo r example, if the th e la law w permits retailers to offer only shoes or socks, but not both, the consumer w ho wishes to clothe his feet must make tw o shopping stops an d not one. It m ay be law very simply limiting th thee size of shops by limiting their square footage. It may, of course, also be law limiting competition within a certain district, permitting only a limited number of shops to open. so,, American law has become increasingly Over the th e last generation or so hostile to all of these forms of legislation. American large retailers ar aree permitted to carry th e widest range of goods. W e ca cann all now buy milk and cookies at large drugstore chains-though goods that smack of sin, like liquor, are still generally segregated into separate shops. Other protections against competition fo r small shops are nil. Apart from Sunday blue laws, themselves in sharp decline,146 there are rarely limits on the hours stores may keep.14 7 The American economy has ha s also produced the mecca of shopping convenience, th e mall. Th e contrast with continental Western Europe is marked, though it is certainly diminishing. Indeed, the th e retail la law w of European countries has ha s long cann seem to be a bizarre disregard fo r th e shown what, to American eyes, ca of interests consumers. One familiar example is German store-closing laws-

146.

See, e.g., Jonathan Gruber & Daniel M . Hungerman, The Th e Church vs. the Mall: What Happens When Religion Faces Increased Secular Competition? 2-4 (Nat'l Bureau of Econ. Research, Working Paper No. 12,410, 20o6), available at http://www.usc.edu/schools/college/

crcc/private/ierc/Hungerman.pdf. 147.

There are occasionally cases, to be sure, in which zoning authorities are concerned with limiting store hours, fo forr example in order to avoid disruption in residential areas. See, e.g., Gratton v. Pellegrino, 348 A.zd 349, 351 (N.H. 1975). Nevertheless such concerns hardly thee role they play in continental Europe. match th

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th e laws of th thee Ladenschluflgesetz.'48 T h e Ladenschluflgesetz ha hass historically limited the th e opening hours of most German retail establishments. Under a law passed in 1956, German stores were obliged to close at 6:30 in th thee evening, as 49 well as on Saturday afternoons and Sundays.' Frustrated American expatriates know what it is like to rush to a German supermarket after a da dayy at th e office, only to encounter departing clerks w ho shout at them, triumphantly,

"Feierabend!" ("Time to knock off work!") T he o ld Ladenschluflgesetz is no more. German efforts to import legal consumerism have involved a sustained

assault on store hour limitations: as of June 2003, after many years of political battling, ordinary stores are ar e permitted to remain open until 8:oo p.m. 0° Recent efforts have provided further encouragement to shopkeepers to keep longer hours -though it remains quite unclear how many of them will take advantage of it.'

But if th thee Ladenschluftgesetz is under assault, that does not mean it is of no comparative interest. In fact, it remains a classic example of th thee conflict between producerism and economic consumerism. It also remains, despite recent legislative reforms, an example of the th e depth of German political resistance to American-style consumerism. Limiting store hours ha hass the obvious effect of limiting consumer choice (and the obvious collateral effect of limiting the opportunities of German women to enter the workforce, since it assumes that some family members will be available to shop during the workday). Nevertheless, it is striking that the German politics of th e Ladenschluflgesetz have been overwhelmingly producerist. German debates over th e Ladenschluftgesetz have long revolved around a purported producer interest: th e interest of store employees in being immune from pressure to work longer hours. As one German explained to the th e ChristianScience Monitor: "In Germany, th e protection of workers has always been a priority. Parents need to be at

148.

149.

15o.

Gesetz iber den Ladenschlug [Act Concerning Store Closing Times], Nov. 28 , 1956, BGBI. I at 875 87 5 (F.RG.). Comparable laws, an andd comparable debates, exist in France, though will not no t discuss them. Se e generally C. TR&v. art. L221. The debate in France has been Iquite heated at times. See, e.g., Les documents de travail du S~nat [The Report of the French Senate], Les horaires d'ouverture des commerces de d&ail [Opening Hours of Retail Establishments] (Oct. 2003), availableat http://www.senat.fr/lc/lc126/Ac126.pdf. Gesetz iber de n LadenschluS [Act Concerning Store Closing Times], Nov. 28, 1956, BGBI. I at 875 (F.R.G.).

Th Thee shifts began in 1996 and continued in 2003. Th Thee lengthened hours were first intended to benefit "innovative boutique enterprises" ("innovative Einzelhandelsunternehmen") and were later extended. Se e DIRK N E U M A N N , Commentary to 5 3, Ladenschlussgesetz, in LADENSCHLUSSGESETZ: MIT ALLEN WICHTIGEN VERORDNUNGEN

[THE

AU S

BuND

UN D LANDERN

STORE CLOSING LAW: WITH IMPORTANT FEDERAL AND STATE REGULATIONS]

ed. 2003). 151. Hundley,

supra note

11

4 th

12 .

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home with th thee children, an d families need to be together in the evenings and weekends."" 2 Allowing stores to stay open late, it has generally been argued, facilitates th thee efforts of employers to exploit their workers. No matter ho w much benefit consumers might gain from reform, the protection of the workers ination, on, it ha hass seemed to has been viewed as primary. In th thee conflict of the imag inati Germans that "the worker" is the modern economic actor threatened with potential injustice, not "the consumer." The politics of store-closing la law w have been class conflict politics. When it comes to store hours, Germans have seen the vocation of th thee la law w to lie in intervening to protect interests on the supply side, rather than th thee demand side. That does not mean that participants in the German debates did no t understand that a consumer interest might be at stake (though, as Lizabeth Cohen might predict, they often seemed weirdly blind to th thee women's interest that was also at stake"5 3). It means simply that th thee consumer interest w as of far lesser political weight. Only producer identities ultimately mattered for purposes of th thee political debate. T h e claim that employees might be threatened with exploitation-a highly dubious claim in an y case' 4 -long dominated German political discussion, to the near total exclusion of an y endorsement of consumer economic interest. Even as store-closing regulation has been loosened, that political attitude has ha s no t died 55 : quite the contrary, th thee current version of th thee German statute demonstratively includes a long section on worker protection."s6 It remains

unclear h ow many German shops will really stay open late. What is clear is that thee issue as on e in which favoring consumers can only Germans continue to see th come at the painful expense of workers. T h e pressure to change m ay ye yett put an end to th thee Ladenschlusgesetz, but it has not succeeded in putting an en d to the th e thee priority on workers' rights. As w e shall see in the political culture that puts th next Part, this is entirely typical of a continental European world that continues to la layy its fundamental political emphasis on workers' rights. Even as th thee la law w

152.

Gu y Raz, Closed on Sunday? Shopkeepers Rebel, CHRISTIAN SCI.

153.

Cf COHEN, supranote 7, at 31-41 (noting that th thee American focus on women's ights follows upon the th e rise of consumerism as an alternative to focus on workers' rights).

154.

Th e German debate ignores in particular the possibility that after-hours clerks will be hired not from the ranks of older workers with families but rather from the ranks of entry-level jobseekers.

155.

MONITOR,

Aug.

12,

1999, at 8.

It is worth noting that store-closing laws in both Germany and France have been gradually loosening with the th e rise of convenience stores operated by minorities from the Maghreb and Turkey. It is possible that Europeans feel less need to protect workers of Maghrebi or

Turkish origin. 156.

Gesetz diber den Ladenschlug [Act Concerning Store Closing Times], Nov. 28, 1956, BGBI. I at 747-48 (F.R.G.).

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has ha s shifted in Germany, the structure of political debate has remained revealingly German. The politics of store hours legislation, in short, demonstrates European producerist politics that contrasts starkly with ho w such politics play out in the United States. T h e same is true of other areas of law, some of them fa farr more resistant to change than th thee law la w of store hours. F or example, in both Germany a nd France we still find considerable la law w protecting small shopkeepers. The protection of small shopkeepers against big retailers was a recurrent theme of early-twentieth-century economic life. Anti-chain-store legislation w as widespread everywhere in the first part of th thee twentieth century. As big bi g retailers like Woolworth's an d its imitators appeared, countries all over the industrialized world, including the United States, introduced measures intended to protect their small competitors.' Things have changed in recent decades, however. In all of these countries th thee anti-chain-store legislation ha hass s8 mostly been repealed or abandoned,' a nd there are b ig stores in Europe just th e United States. Indeed, this appears to represent an as there are in the unambiguous global triumph of contemporary American-style consumerism. B ut on closer inspection, it becomes clear that th thee triumph is by no means absolute. Large retailers have not driven out their smaller competitors everywhere. Here again, w e m ay start with an example from Wal-Mart's German Waterloo, as reported by the N ew York Times. Wal-Mart, says the th e Times, w as unable to break down a small-shop culture in Germany: "'They tried to sell packaged meats when Germans like to bu y meat from th thee butcher.' Wal-Mart's shoes-to-sausage product line does not suit th e shopping habits of many non-American shoppers. They prefer daily outings to a variety of local stores that specialize in groceries, drugs or household goods."' 9 The Times is quite right. There are ar e certainly large discount outfits in Europe, like Aldi, an d large supermarkets, like Monoprix. But at the th e same time there ar aree many small shops in Europe that seem to be surviving perfecdy well, holding onto their customers even in the face of big bi g store competitors. Here I will focus on the example of France. Any visitor to a French city knows that there are still many small shops there. Small butchers, cheese-dealers, and bakers still dominate th thee experience of food shopping, fo forr example. O ne still buys o n e ' s ...

157.

GRAZIA, supranote 52, at 13o-83; see also Frank K. Upham, Privatized Regulation:Japanese Regulatory Style in Comparative an d International Perspective, 20 FORDHAM INT'L L.J. 396

DE

(1997) 158. 159.

(describing Japanese regulations).

France is a noteworthy exception. See sources cited infra note

161.

Mark Landler & Michael Barbaro, No , Not Always: Wal-Mart Discovers That Its It s Formula Doesn't Fit Every Culture, N.Y. TIMES, Aug. 2, 20o6, t Ci (quoting German union official Hans-Martin Poschmann).

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7

medicines from small pharmacies. Decades after th thee supermarket arrived in th e one-stop big store still has Europe, the ha s not killed th thee small specialized shop. Why is this so so?? T he Times' answer is about culture: "Wal-Mart Discovers That Its It s Formula Doesn't F it Every Culture," the title of its it s piece reads. This statement is no t false, as fa farr as it goes. Cultural traditions do indeed play a major part. (In fact, protecting competitors is so deeply ingrained in French culture that even children's cartoon books offer their preadolescent readers jokes that turn on th e technical legal term for fo r "unfair competition."16 ') T he fact that Europeans do not live suburban, automobile-based lives also plays a part, since they cannot embark on the th e kind of massive shopping expeditions that are normal in America. But the la Lett us indeed look at ho w French la law w plays a part too. Le law w h as engineered a structure that protects small competitors -despite its announced

commitment to "consumer" welfare, and despite th e fact that it has ha s abandoned 6 it s anti-chain store legislat most (though not all!' ,) of its legislation. ion. through price law defines has achieved In part, French French law small-shop-friendly results regulation. a zone de chalandise,aa marketing chalandise, radius, in which no merchant may charge predatory prices. T h e zone de chalandise is familiar enough to anyone w ho has lived in Paris or an y other French city: it is th thee walking radius within which shoppers m ay move as they make their purchases. The purpose of regulating prices within this radius, as th e French Court of Competition (Conseil de la Concurrence) has ha s explained, is specifically to guarantee that small butchers a nd bakers will not face ruinous competition

16o.

See Titeuf. L'Arbitre: Mamette la mamie qui orge des bonnes mani~res! [The Referee: Granny Mamette Teaches Good Manners!], in TCH6! loo, LE NUMtRO MiGA SPtCIAL 81 (2007) (cartoon frame showing Titeuf covered with glob lobbed at him by his baby sister, with dialogue line "la concurrence deloyale rigne!" ("Unfair competition reigns!")). Fo r th thee phrase "concurrence ddloyale" ("unfair competition"), in competition law, see, fo forr example,

Concurrence D6oyale, http://www.lexinter.net/JP/concurrencedeloyale.htm (last visited Nov. 9, 2007). It is remarkable what yo youu can learn about a foreign culture by living in it with a child -and remarkable how much easier it is to explain French comic books to your nine-year ol oldd if yo youu know some French law. 161.

The Loi Raffarin of 1996, Law No. 96-603 of July 5, 996, Journal Officiel de

la

R~publique

Franqaise [J.O.] [Official Gazette of France], July 6, 1996, p. lO,199, strikingly not repealed in 20o6, requires that all stores of 300 30 0 square meters an d larger obtain a special administrative authorization to open. Its stated purpose is to "defend" "/eetit commerce contre les grands distributeurs" ("small businesses against large distributors"). See, for example, the discussion at Et La Loi Raffarin? [And th thee La w Raffarin?], http://www

.Iibres.org/francais/act .Iibres. org/francais/actualite/archi ualite/archives/actualitO/oE91oo4/raffarinves/actualitO/oE91oo4/raffarin-a6_44o4.htm a6_44o4.htm

(last visited

Nov. 9, 2007).

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from large-square-footage stores. 62 T o be sure, as with th law w of competition, thee la modern French law la w insists that its goal is to further th e interest of consumers. As th thee Court declared, the purpose of the la w is to guarantee that "the consumer th e law 6

will have th thee ability of choosing the th e mode of distribution that he prefers."' This is a conception of the consum er int interest erest that is worth taking seriously, as I will suggest in a moment. Nevertheless, there is no doubt that it is a conception that leaves protections fo r small competitors, like local bakers, intact. The regulation of price within the "market radius" is not th thee only such French measure. Similar results are achieved through the th e regulation of goods. Visitors to French cities will know that shops tend to have more limited product lines than they do in the th e United States. There are n o vast "drugstores" like Walgreen's, selling both pharmaceuticals an d sliced bread. Supermarkets d o not sell medicines. Even the larger stores specialize. Fo r example, there are ar e fairly large drogueries, but they specialize in soaps, perfumes, an d other hygienic goods. This relative absence of large all-purpose retailers can have a real impact th e consumer when it comes to some goods that Americans regard as basic. o n the F o r example, it is impossible in continental Western Europe to bu y ibuprofen except at a store staffed by a trained pharmacist164 -with the result that the th e cost of ibuprofen is much higher than it is in the United States. A similar story can be told about bakeries and bread. French law la w specifies carefully that n o seller can ca n call himself a "baker" unless he directly supervises the kneading and other processes, bakes th thee bread at the th e site of sale, and strictly avoids freezing at any stage. 6 This is of course intended as a barrier to industrial production, an d in turn to lower prices. '

How does this system survive? Why hasn't Walgreen's conquered France? Why haven't French consumers been forced to resign themselves to buying stale so-called baguettes at Stop an d Shop? A large part of th e answer, once again, is cultural, but a part of the th e answer is legal: th e French system is

162.

163.

Le Conseil de la concurrence, Avis n' 96-A-o5 du 2 m ai 1996, at http ://www.conseil-concurrence.fr/pdf/avis/96aos.pdf.

5

(May 2, 1996),

Id. Perhaps we can see th thee Supreme Court of th thee United States accepting th thee same kind of reasoning in its recent decision of Leegin Creative Leather Products, Inc. v. PSKS, Inc., 12 7 S.

Ct. 2705, 2714-15 (2007).

and not absolute.

Here again, th thee differences that are traced in this Article are relative

164.

Georg Kojda, Freigabe von Arzneimitteln fiir die Selbstmedikation [Permissible Distribution Distributionof of Medicinal Substances for Self-Medication], APOTHEKEN MAGAZIN (APOTHECARY MAGAZINE], Jan.-Feb. 2002, at 8, available at http://www.uni-duesseldorf.de/kojdapharmalehrbuch/apothekenmagazirVFortbildungsartike/2o02-01-02.pdf.

165.

C.

COM.

art.

L121-8o

(Fr.),

available

at

http://195.83.177.9/code/liste.phtml?lang

=uk&c=61&r=213o.

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perpetuated through th thee regulation of goods. T he la law w may regulate goods just as it m ay regulate prices, a nd goods ca cann be regulated in ways that affect the th e practice of retailing. Thus French la law w requires that numerous products be sold only by persons w h o hold a professional pharmacy degree. So does American law, of course. But Americans will be surprised by some of what France regulates. Ibuprofen m ay be an unsurprising example of such regulation. B ut French la law w also regulates some "hygienic products," which must also be sold by clerks with a pharmaceutical degree, on the grounds that they touch the human skin. This means that distributors of cosmetics ca cann demand that their 6 6 products be sold only in pricier small shops. To the American eye, all this m ay seem prejudicial to consumer interests. Why do yo u need a professional pharmacist in order to b uy cosmetics (or for that matter a professional baker in order to b uy bread)? Surely the th e sovereign consumer ca cann decide on hi hiss or he herr

usee ibuprofen or whether to experiment with a ne w shampoo. o w n when to us Surely th thee sovereign consumer ca cann judge whether flash-frozen bread is as good as fresh-baked. Surely th thee French claim to be protecting consumers is simply humbug.

Well, not necessarily. Here again, in discussing th e French approach, we must make the effort to understand foreign la law w sympathetically. W e ca cann begin by raising normative questions about th thee American system. Does th thee American system of consumer sovereignty really guarantee lower prices? Not always. For Fo r example, some American consumers en d up paying ruinously high prices for medications- a situation that th thee French social welfare state prevents. There is a paradox here, at least to the extent that th thee American attitude toward

consumer sovereignty is th thee product of a larger hostility to state intervention that works against th thee establishment of socialized medicine. This is meat for discussion: th thee American sovereign consumer model asks the individual to accept significantly more risk in life than hi hiss European counterpart. More importantly, w e should see th thee French protection of small shops in its

larger socioeconomic context. Small shops have social value in France, and for more than on e reason. First of all, they m ay be family owned. In Europe, much more frequently than in the United States, small shops m ay be literally momand-pop(-and-kids) operations. 6 In highly mobile America, members of the th e younger generation typically make their ow n w ay in the world rather than joining th thee family business. That pattern of mobility ha hass never taken hold in ,

thee small shop remain family values, and it is Europe. The producer values of th

166.

This is done through what is called a "contrat de distribution selective" between th e distributor an d the th e retail establishments. See RECUERL DALLOZ, JURISPRUDENCE 66-70 (1964).

167. E.g.,

HAROLD

JAMES,

FAMILY

CAPITALISM:

CONTINENTAL EUROPEAN MODEL (2006);

WENDELS,

HANIELS,

FALCKS,

Roe, Modern Politics,supra note

27,

AN D

at 252.

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unsurprising that the small-shop form of producer identity should matter so

much. Moreover, family ownership of enterprise does not exhaust the social importance of th thee French small shop. There are ar e also artisanal values at stake, of th e kind described by Commons in his hi s work on shoemakers (and trumpeted twenty years later by the Nazis).6' Producerism is associated with historic guild traditions. In their ideal form, these guild traditions include certain centrally important features. They emphasize craft knowledge-a body of specialized knowledge passed on from generation to generation through apprenticeship. As Commons argued, they also involve a pride in the production of goods at a high level of artisanal quality. In both Germany a nd France, craft traditions, associated with historic guild cann see structures, still run much deeper than they do in th thee United States. W e ca this in th e attitude toward professional knowledge and the embrace of a professional identity. Guilds are characterized by their control of a body of craft knowledge and by the th e primacy of guild identity in th thee self-understanding of guild members. Some of that sort of guild culture exists in the United States. Members of th e American liberal professions, especially lawyers a nd doctors, ar aree expected to master a body of professional knowledge and to identify themselves primarily with their profession. This pattern is more or less limited in America to the liberal professions, though. By contrast, the th e same pattern of behavior is much more widely dispersed over th e labor force in continental Europe. Even low-status workers like French waiters receive professional training. In Paris they may even attend on e of

TH E

several training institutions 6 9 Good French waiters take pride in their command of professional knowledge, comparable in many ways to th e pride taken by American lawyers. Being a waiter is a profession for fo r many of its French practitioners - not a form of casual labor as in th thee United States. In this sense, a Paris waiter is a little like a N ew York lawyer, strange as that m ay sound. T h e same is frequently true of French salesclerks at better stores, w h o consider themselves as offering expert advice. T h e many small clothing shops cann offer excellent fashion counseling. Perhaps w e ca in Paris ca cann even speculate that French waiters and salesclerks are ar e more likely than their American counterparts to think of themselves in terms of their producer identity: if

asked, they will identify themselves by saying "I am a waiter" or "I am a salesclerk." Certainly w e see this attitude in continental trials, in which

168.

169.

Se e supra Part II .

Fo r an example, see the Web site of Lyc~e des m&iers de 1'h6tellerie Jean Drouant [Jean Drouant High School of Hotel Services], http://lyc-drouant.scola.ac-paris.fr/lhisto.php (last visited Nov. 9, 2007).

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witnesses identify themselves by referring to their place within a professional guild tradition: "I am an apprentice pastry-chef." 70 One's place in society ha hass to do with one's place in a profession defined b y its it s body of knowledge. This is what Weber called Standesehre, the th e honorable sense of self that comes from 1 71 membership in an "estate," a professional o r social status group. Pharmacists represent a striking example of the continental style in the treatment of professional knowledge. It remains th thee case that French pharmacists, who receive extensive training, are ar e treated as professionals capable of dispensing a wide range of advice. F o r example, as all French people know, they are trained to identify poisonous mushrooms.' 72 But high standards of professional training are ar e not limited to liberal professions like pharmacists. In both France and Germany, professional licensing exams are demanding even fo forr relatively low-status professions. The sometimes maligned licensing exam fo r German master hairdressers is one example. (German master hairdressers are tested on their knowledge of chemistry. 173) Internal governance of these professions is also highly developed. In France, fo forr example, all these professions have their o w n quasilegal codes (diontologies) governed by a rich body of jurisprudence created by the th e Conseil d'Etat, the th e supreme court of

administrative law. There is even a baker's diontologie. If craft knowledge and professional identity matter in Europe, so does artisanal quality. Producer groups have long claimed social status by insisting that they stand fo forr traditional craft standards of production -standards that depend on a high level of craft mastery and that give priority to maintaining high quality, even at th e cost of charging higher prices. It wa wass this tradition that Feuchtwanger's Heinrich Wels claimed to represent.

170.

DVD: L'Affaire Delnatte [The Delnatte Affair] (LA (L A CINQVF Productions 1991) (on file

with author). supra note 32, at

141-42; 2 WEBER, supra note 32,

at

171.

1 WEBER,

172.

Fo r this worthwhile piece of information about French pharmacies, see La Classification et

932-33.

http://www.universsa Morphologie [Classification an d Morphologie], nature.com/dossiers/champignons-i.html (last visited Aug. 31, 2007) ("Au moindre doute, i est es t pr~f6rable, lors de la cueillette, de s~parer les champignons douteux de s autres et de les montrer A un professionnel (pharmacien ou mycologue professionnel)." ("In case of the slightest doubt it is preferable, at the time of collecting, to separate th thee doubtful mushrooms from the others and show them to a professional (pharmacist or professional mycologist).")). 173.

See Handwerkskammer MiInster: Friseurmeister stylen bis in die Spitzen [Artisanal Chamber of Miinster: Master Hairdressers Style to the Last Strand], http://www.hwkmuenster.de:8o/index.php?id=6o&tx-ttnewssBttnews% D= 2 4 2&tx3ttnews%5BbackPid

%SD=l&cHash=3cae673739 (last visited Nov.

9, 2007).

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T h e French regulati regulations ons that I have described enshrine such artisanal values. They aim to encourage deference to the professional expertise of both pharmacists and bakers. There is a deeper issue here, we should see, about la w as a law la w of information. The French law comparative consumer protection law th e expertise of pharmacists an d bakers can be encouraging deference to the conceived of as a form of consumer protection: it is a means of guaranteeing that consumers will benefit from informed judgments about th thee goods they law w about the buy. It is la th e kind of information that will guide consumer purchases. In regulating information, France resembles th e United States. In Ye t Europeans both countries, consumer legislation often involves information. Yet law w tends to often think of information differently than Americans. American la involve overwhelmingly the th e disclosure of information. Europeans also have a law w mandating disclosure -more all th e time, as Brussels tries to great deal of la

th e same time, Europeans are more prepared encourage consumerism. B ut at the cann only be dispensed than Americans to suppose that some sound information ca forr example, b y trained professionals. When it comes to items like ibuprofen, fo aree less ready than Americans to leave th e sovereign consumer alone with they ar a cryptic page of dosage instructions. Of course, th e French regulations are ar e not only about managing information. They also aim ai m to encourage high standards of production. A n d in that regard, they enjoy some real success. Baguettes are (in the personal view of thee United States -even this author) inexpressibly better in France than in th thee world come than in Greenwich Village. Well-to-do shoppers from all over th ar e proud of their to Paris to bu y their cosmetics a n d clothing, from clerks w h o are professional savvy. France, like other European countries, produces a wide range of superb, regulated artisanal goods, such as cheeses' 74 an d wines. 17 In this regard, it is not pure humbug to declare that French protective legislation aims to guarantee the th e consumer "the ability of choosing the mode of distribution that he prefers." 176 T o the extent that legislation is necessary to keep artisanal values alive, the th e French approach does expand the range of consumer choice to include goods like decent baguettes that simply cannot be an y price. Most importantly, to the extent that produced in America at any legislation enshrines artisanal standards of quality, it serves as a ba r to th e entry of competitors who could provide cheap, but lower quality, goods.

174.

For the ensemble of regulations, see Dispositions LUgislatives et R~glementaires, http://www.legifrance.gouv.fr/WAspad/RechercheSarde.jsp

"fromage") (last visited Nov.

(search "fromage" an d click

9, 2007).

175.

For the ensemble o f regulations, see

176.

Le Conseil de la concurrence, Avis

search id. no

"vin" and click "vin").

96-A-05

du

http://www.conseil-concurrence.fr/pdf/avis/96ao5.pdf.

2

ma maii

1996,

at

5

(May

2,

1996),

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Nevertheless, it is not obvious that legislation is needed in order to keep artisanal values alive. It is perfectly possible that artisanal traditions would survive even without th e intervention of th thee N ew York thee state. Indeed, as th Times rightly observes, there is a strong cultural tradition of artisanal values in Europe. In France too, th thee artisanal tradition is at least as much part of the th e general culture as it is th thee product of an y specific legal regulation. Indeed, the th e small bakers of Paris are frequently mere outlets for city-wide producers; they ar aree n o t th thee neighborhood bakers of th thee past. Nevertheless, even these

not always) to are bakers production. contemporary often (though managethey maintain high standards of artisanal In part, this is because encouraged by government boosterism.' 77 In part, though, th thee enduring artisanal character of French bakeries reflects th thee strength of deeply ingrained cultural understandings of how producers are ar e supposed to act, at least when they act thee ethical demands of their craft. according to th VI.

CONSUMERISM,

PRODUCERISM,

AN D THE CULTURE

OF

RIGHTS

In short, the American/European clash between consumerism an d producerism did not di diee after the 193os. It is of continuing importance for ou r discussions of comparative antitrust and comparative retail law. What is more, it tells us something about ho w ordinary Europeans experience everyday life. The same is true of rights politics, as w e ca cann see when w e reflect on the th e implications of th thee claims of historians like Lizabeth Cohen. These American historians make a striking claim. As Americans came to regard "consumer" as their primary legal identity during th thee mid-twentieth century, they began to abandon th thee ol d form of politics. That old ol d form of politics focused on the supply side of the market. It centered on the conflict between labor unions and capital, an d it encouraged ordinary people to think of rights primarily as th e rights of organized labor. T h e rise of consumerism from th thee 1930S onward slowly changed that. Rather than thinking that their

rights accrued to them by virtue of their membership in the th e producerist labor movement, people began to conceive of their rights in different terms-as the sorts of rights that all individuals have, by virtue of their membership in the th e universal class of consumers.' 7s As Cohen argues in her latest book, this led

177.

On e notable figure is Jean-Pierre Raffarin, who wa s Minister of Small and Medium-Sized Enterprises in the th e mid-199os. See, e.g., Legouvernement instaure uneJournee nationale dupain [The Government Institutes a NationalDay of Bread], LE s EcHOS (THE ECHOS], Apr. 24, 1996, at 12 .

178.

Se e supra Part II.

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them slowly to embrace a ne new w style of rights politics of rights politics focusing, fo r example, on the claims of women an d African Americans.179 -

This is an argument of great importance in the interpretation of American

law w as well. It is impossible to history, and of great importance to comparative la grasp the contrast between American and continental European legal orders unless we keep this argument in mind. Continental politics remains much more oriented toward a producerist concept of rights than American politics,

law w o n either side of an d that has provocative implications for the shape of th thee la the Atlantic. Let Le t us then turn to the contrast between the attitude toward rights in consumerist and producerist orders. Here w e must begin by thinking about the shape of politics in a producerist order. As w e have seen, there is no such thing as "the" producer interest. Producer groups have inherently conflicting interests, whether th thee conflict is on e between labor an d capital or between small an d large retail establishments. To describe continental Europe as relatively "producerist" is thus not to declare that Europeans embrace some particular legislative program. Instead, it is to declare that European politics is largely framed in terms of producer conflict -or, in the classic phrase, "class that than Americans, to conflict." to say legislators It istheir tend, more of different producer task as European th e weighing and balancing conceive of thee case, as political scientists observe: economic interests. Such is indeed th hass long been th e product of conflicts legislation in continental Europe ha between such traditionally politically powerful producer groups as workers, craftsmen, small shopkeepers, and large enterprises."' As I suggested above, even "consumerist" reforms like the German liberalization of the Ladenschluflgesetz are seen against the background of a politics of workers' rights. ' In countries with traditions of this kind, the la law w of individual rights is thee same spirit of producerism that moves through competition law marked by th

come from powerful retail law. examples law. an he simplest labor andproducer employment groups In dEurope, the Tinfluence of the most historically organized labor an d large-scale enterprise-is manifestly still alive, an d the perceived conflict between those groups shapes labor law. One consequence is that labor rights la farr more central role in Europe than in the United law w plays a fa la w limiting the States. Thus most continental countries have a great deal of law capacity of employers to lay off or dismiss workers. The recent riots in France -

179.

COHEN, supra note 7,

at 31-53.

i8o. See

supra Part III.

181.

supra text accompanying notes

See

148-157.

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show that the resistance to any change o n this score can be fierce.182 The same is shown, if less dramatically, by the th e current abject failure of th thee Merkel regime to alter German labor law. 8 Here again w e ca cann point to the th e example of WalMart in Germany: "They didn't understand that in Germany, companies an d unions are closely connected," as the th e N ew York Times quoted on e union 8 official.' 4 This lies, of course, at the th e heart of th thee global Wal-Mart Question. law w than hiring an d There is more to the distinctiveness of European labor la firing, though. As Gabrielle Friedman and I have argued at length elsewhere, European law also puts a heavy emphasis on the dignity of labor-on th e right of workers to feel respected in their workplace.' 8 s This too to o reflects longstanding producerist traditions. European social identity ha hass traditionally been conferred by membership in producer classes-by Weberian Standesehre, status-group honor." 6 That conception remains powerfully present in European rights legislation. The culture of rights legislation in th thee United States is quite different. It is sometimes claimed that the th e United States is peculiarly oriented to "rights talk." That claim, made most forcefully by Mary Ann Glendon, 8 7 is false, in m y view.

The truth is not that Americans are more attached to "rights," but that they have largely ceased to conceive of rights in traditional producerist terms -at least as compared with Europeans. Tending to abandon th thee old ol d rights language of class conflict, they have shifted to conceiving of rights in a different key. This expresses itself in sharp differences between A merica mericann and continental European labor and employment law. Thus, though there is American employment legislation, it takes quite different forms from th thee forms found in Europe. American employment law la w puts comparatively little emphasis on protections against firing, and n o emphasis whatsoever on the th e traditional idea of the th e dignity of labor.' Instead, it emphasizes affirmative action and equal

182.

See Craig S. Smith, French Unrest Reflects Old Faith Faithin in Quasi-Socialist deals, N.Y. TiMES, Apr. 9, 2006, at

Aio.

183.

See Richard Bernstein, Political Paralysis: Europe Stalls on Road to Economic Change, N.Y. TIMEs, Apr. 14 , 2006, at A8.

184.

Landler & Barbaro, supra note

185.

Gabrielle S. Friedman & James Q . Whitman, The Th e European Transformation of Harassment Law: DiscriminationVersus Dignity, 9 COLUM. J. EUR. L. 241 (2003).

186. 1 WEBER,

supra note

32,

159.

at 141-42;

2 WEBER,

supranote

32,

at 932-33.

187.

MARY AN N GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991).

188.

Le Lett m e emphasize that this claim is made in comparative perspective. Of course I do not mean to make th thee obviously false claim that there are no protections against firing in American law. I claim only that those protections play a far lesser role in American law than they do in German or French law.

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th e labor market. It is a la law w that aims to guarantee that citizens will not be disadvantaged in their choice of jobs in a very fluid an d mobile market. Paradoxically, w e might say, it treats jobseekers as consumers, choosing among possible positions o n offer. The rights orientation of th thee American consumerist order is, moreover, no t access

to

law w restricted to economic regulation. T he turn to consumerism in American la ha hass involved a broad turn away from the politics of class conflict, a nd this h as ha d a wide-ranging impact on the shape of rights thinking. Consumerism, as we have seen, is partly about identity politics: it involves a turn away from the idea that w e are defined by a particularistic roducer identity- our identity as "workers" or "industrialists" an d so o n -in favor of th thee idea that w e are defined by a universal identity, "consumer." As particularistic forms of producer identity have declined in importance, however, other particularistic identities have taken their place- identities like "gay" or "straight" or "Latino" or "Anglo." Thus, th thee rise of consumerism has ha s opened th e door to ne new w forms of identity politics different from the identity politics of class conflict. As Cohen

argues, both th thee strength of th thee American women's movement an d the prominence of racial identity in th thee United States ca cann be linked to the decline of a union-centered culture of class conflict.' 8 9 Once w e cease to think of workers' rights as the paradigmatic conception of rights, the door is opened to th thee widest variety of alternative conceptions. Conversely, European resistance to American innovations like affirmative action has ha s something to do with the lasting strength a n d primary legitimacy of producer identities an d class conflict. In countries like France or Germany, rights are still conceived of, at their core, as th thee rights of organized labor. This often leaves little room for American approaches -little room for American gender politics, little room for American race politics, a n d so on . VII.CONSUMERISM THE

AN D

PRODUCERISM

ACROSS

THE

LANDSCAPE

OF

LAW

A striking pattern emerges in all of this. T he basic value choice made by these differing legal systems over whether to give priority to consumer or producer identity has consequences across th thee whole landscape of th e law. It is not just that America ha hass passed this or that piece of consumerist legislation. It is that, at least in many sectors, American la ha s a consistently deeper affinity law w has with th thee ideal type of an order oriented toward th thee consumer economic interest; while countries like France a nd Germany, despite decades of change,

i89.

COHEN, supra note 7, at 31-53.

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remain much more producerist in their basic orientation. This does not mean thee ideal type of an order that all American la law w perfectly corresponds to th oriented toward the consumer economic interest. It certainly does not. There is forr agricultural producer protection in th e United States, fo r example, fo producers. There is consumer protection legislation, especially where aree many forces unsettling health threats like carcinogens are concerned. There ar aree many forces at work in at work in the making of American law, just as there ar th thee making of French an d German law. Nevertheless, America resembles the ideal economic-consumerist order much more than France or Germany, and that is a fact of basic importance for comparative law. Compared to continental th e hass gone much further toward the countries, America looks like a place that ha thee substitution of transition advocated by Lippman and Weyl and FDR: th forr producer identity. consumer identity fo Le Lett m e emphasize that th thee basic choice between producer identity and consumer identity does not involve some straightforward redistribution of resources from "the" class of producers to "the" class of consumers, or vice anyy redistribution involves robbing versa. We all belong to both classes, and an some Peter to pay some Paul. T h e real question is about which identity counts most.

A fuller treatment would offer many more examples. In this Part, before thee conclusion, I want to touch on only a few-though I will no t moving to th delve into these examples in any detail. thee strength of European guild There is more to be said, for example, about th structuree of professional education is on e important example of traditions. The structur fo r how European guild traditions have not perished. German job training, for example, is still conceived of in classic guild terms. Young German workers begin as apprentices (Auszubildende or Azubis). This tradition of apprenticeship aree steered into career forr th thee lives of young Germans, w h o ar matters immensely fo 19 training at a younger age ag e than are ar e Americans. The guild-like pattern of craft self-government on the basis of a command thee narrow confines of the of craft knowledge also arguably extends outside th economy in continental Europe. T he same institutional structures can also be seen in continental bureaucratic traditions. Bureaucrats to o are a corps, with a thee vessels tooo regard themselves as th diontologie, an d European administrators to of a body of professional knowledge. Perhaps this helps account for the pattern thee French judiciary. elegantly explicated by Mitchel Lasser in his analysis of th

19o.

fo r foreigners settling in Germany, see Lothar von Seltmann, Da s Fo r an introduction for

deutsches Bildungswesen: D ie Sekundarstufe II [The German Educational System: The http://www.derweg.org/deutschland/bildungsweser/ Secondary School], sekundaerstufe2.html (last visited Nov. 9, 2007).

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Lasser paints th e picture of a judiciary loyal to its own professional traditions of knowledge an d internal craft discipline, strongly resisting American norms of public transparency in favor of internal deliberations. 9 ' H e paints, that is, the picture of a judiciary organized as a craft guild. cann see many signs of th On th thee relative thee American side, by contrast, w e ca primacy of a consumerist outlook. W e see it, for example, in th thee tolerant attitude of American privacy law la w to the sale of consumer information, which I

have explored elsewhere. Europeans are deeply troubled by the sale of consumer information by on e marketer to another, an d they have made energetic efforts to b an such practices. Such a b an is conceived by Europeans as essential to the maintenance of individual dignity-as a form of dignitary consumer safety legislation. T o Americans, though, banning th thee sale of consumer information represents an interference with market mechanisms that can ca n only have th thee effect of diminishing consumer choice. Why, say sa y Americans, should consumers be "protected" from receiving offers of merchandise?19 2 Whatever the merits of this dispute, it shows once again how much more Americans are oriented toward a concept of consumer economic interest that privileges an y kind of la keyy identity for fo r law w that expands consumer choice. The ke Americans is, as so often, the consumer sovereign. In other important ways too, we can see American order as a consumerist order. American insolvency law takes no account of th thee interests of the competitors of the insolvent firm, a nd comparatively limited account of the interests of workers. These producer interests do not count in America. American class actions are widely perceived as procedures used to vindicate the interest of consumers -though th thee class action suit is an institution that can clearly be used either to vindicate a consumer economic interest or a consumer protection interest. Antidilution la law w offers another example. Strong antidilution measures favor th thee interests of existing competitors in an industry. It is thus perhaps no surprise that Europeans ar aree more open to antidilution measures than Americans

1

93

Another familiar, though difficult, example suggests the comparative

power of th thee producerist orientation in Europe. This is the th e case of th thee "droit moral de l'auteur," th thee "moral rights" of th e artist. Continental Europe is famously the home of a tradition that protects th thee noneconomic rights of the artist to control th usee of artworks as expressions of th thee artist's "personality." thee us T h e literature of this continental tradition has always been rich in celebrations

191. MITCHEL DE

S.-O.-L'E. LASSER, JUDICIAL DELIBERATIONS: A COMPARATIVE ANALYSIS OF

JUDICIAL TRANSPARENCY AN D LEGITIMACY 307-11 (2004). 192.

Whitman, supra note 136,

193.

My thanks to Rochelle Dreyfuss an d Annette Kur for making this observation to me.

at

1189-95.

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of the th e "creative" and "productive" character of the th e artist.' 94 The contrast with not as sharp as it once was: American 1statutes law la w isapproach, have adopted American at least in some measure. 9 Nevertheless, the European the law w is "exceedingly narrow," and in American version of this continental la practice amounts to far fa r less than what we find in Europe, in th thee view of o ne recent commentator.196 This is not the th e place fo r a full exploration. What matters is that continental Europe, here as elsewhere, is the th e home of a tradition that focuses heavily on "productive" powers-not only those of workers in general, but those of artists in particular. When it comes to th e strength of American consumerism, perhaps the th e most striking example of all comes from the th e wide diffusion of equity holding in th e United States. Equity holding remains very limited in Europe and Japan. Firms

ar aree often and outside held,equity 197often large enterprises. The smallclosely individual remainsholders holder equity a rarity.are Indeed, in most ways, th e class of equity holders in Europe today would still be recognizable to a nineteenth-century observer as a "capitalist" class. T h e phenomenon of the th e small individual equity holder is, of course, much more familiar in the th e United States, as it ha hass been for a very long time. T o the extent the individual buys equity, he is technically not a "consumer," but rather a n investor. He belongs to th e capitalist class. Nevertheless, shares of equity ar aree traded on a secondary market in th e United States, and participants in th e market for those shares clearly resemble consumers. They are entirely passive investors, w ho certainly think of themselves as purchasing a kind of good. clearly resembles la law w that Moreover, they demand investor of consumer protection law. This m ay protection the th e most dramatic indeed represent th e classic producer-oriented systems of political American departures from the

economy. O ne of the great classic producer interests -the interest of capital sayy that America has been largely consumerized in America. In fact, we might sa h as seen not just a separation of ownership from control, but a remarkable dissolution of capital into the consumer market. To vary th thee famous question of Werner Sombart, w e might even ask not just "why is there no (Europeanstyle) socialism in America?' 98 but, more challengingly, "why is there no (European-style) capitalism in America?" -

194.

See my fuller discussion in Whitman, supra note 136, at 1184-85.

195.

See Cyrill P. Rigamonti, DeconstructingMoral Rights, 47 HARV. INT'L L.J. 353, 353-54 (20o6).

196. Id. at 406; see also id. t 404-11. 197.

See, e.g.,

REINIER KRAAKMAN ET AL., T14E ANATOMY OF CORPORATE LAW:

A COMPARATIVE

AND FUNCTIONAL APPROACH 129 (2004). 198.

WERNER SOMBART, WARUM GIBT ES IN DEN VEREINIGTEN

[WHY Is THERE

No

STAATEN KEINEN

SOZIALISMUS?

SOCIALISM IN TH E UNITED STATES?] (1906).

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There are other issues that a fuller discussion of consumerist/producerist dichotomy would require. For example, protectionist legislation, still so important in France, is a classic form of producerist law. More broadly, the place of protectionist politics in global trade is a topic of manifest importance that I do not investigate here. Moreover, such protectionist legislation also plays its part in American law; th thee differences that I describe are relative an d not absolute.' 99 It is also sometimes said that European regulation is more attached to th thee strong consumer-protection orientation of th thee precautionary principle- though here again, far more detail would be needed in an y careful comparison.2 "' Issues like th thee Value Added Tax (VAT), which taxes supplyside activities, also deserve attention beyond what m y expertise ca cann give. Perhaps most importantly, th thee classification in this Article raises important thee side. If w e want philosophical and social scientific problems that I leave to th to delve deeply into the value of these two identities, producer and consumer, w e must spend much more time on the relative values of work and leisure in life. If w e want to explain the relatively greater strength of the producer orientation in Europe, w e must as askk what social forces encourage it. it . I have no t done that in this Article, which has ha s focused only on th thee problem of classification. It is obvious that th thee differences I have traced have to do with deeper differences in culture an d political economy, but I have not made any effort to explain how culture and political economy relate to each other. All