Adrian Kuenzler (Yale Law School) has posted Contextual Variety on SSRN. Here is the abstract:
Following the CJEU’s decisions in Pierre Fabre and Coty, a considerable amount of scholarship on the design of competitive markets has been concerned with one particular issue: should product manufacturers be allowed to impose firmer restrictions on distribution with the aim of upholding consumers’ views on product quality? This article asserts that when consumers are exposed to a variety of goods offered in the marketplace, they see product quality as more objective; when they are exposed to a variety of offers pertaining to differentiated goods, they perceive of quality as more subjective. Based on this observation, this article examines a recurring set of trade-offs that courts face when balancing the legitimate interests of product manufacturers to restrict distribution against their effects on consumer sovereignty. The article’s findings aim to advance debates about the overarching policy goals of the manner in which digital markets ought to be regulated.