Oregon Law Review : Vol. 89, No. 3, p.785-810 : Standardization and Markets: Just Exactly Who Is the Government, and Why Should Antitrust Care?
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Date
2011
Authors
Sagers, Chris
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
Abstract
My assignment at the symposium at which this Article was
presented was to relate private standard setting to the
symposium theme: the “public and the private,” and the possibility
that whatever “boundaries” they may have are in “transition.” This Article is basically a sociological exercise. It will make two
basic arguments about how the role of standard setting in our
economy is at odds with the commonly assumed dichotomy between
bureaucracy and markets. First, I stress the great ubiquity and
influence of standard-setting activity in the United States. A large
proportion of the standards we adopt have more or less binding force,
and they exert influence far beyond high technology and
manufacturing. They are everywhere. Moreover, most matters
governed by standards are not subject to any government oversight.
They are formulated outside the government purview, and they get
their influence not from the formal force of law but from independent
forces. And yet, as I argue, those standards cannot easily be
explained as merely the results of market-driven influences. That is
to say, even though most standards are formulated outside any
government purview––and, therefore, under the bureaucracy-markets
dichotomy, should be explainable in some way as the product of
competitive markets––they are in fact not subject to price-competitive
pressures. In the discussion below, I relate this phenomenon to
theoretical developments in the social sciences concerning
“isomorphism” or “institutionalism” in markets. Second, the nature
of standards activities also tends to suggest that much of the social
decision making that occurs outside of markets is not actually overseen by government––contrary to the impression given by the
bureaucracy-markets dichotomy. This second issue is the flip side of
the first. The ubiquity of SSOs not only casts some doubt on the
prominence of markets as resource allocators but also casts some
doubt on government as markets’ chief alternative.
Description
26 p.
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Citation
89 Or. L. Rev. 785 (2011)