As stated by Professor Strahilevitz “[t]he aspiration of this book has been to shine the light on exclusionary practices that have long been shadowed”[1]. In my opinion, this objective has been achieved successfully. The organic treatment of bouncer’s rights, exclusionary vibes and exclusionary amenities in different situations made me realize how exclusionary practices have evolved from the crude and simple rejection to a sophisticated nudge (vibes) or to an efficient market’s tool for exclusion (rising costs by the use of amenities).
Anyhow, even recognizing the efficiency of the different exclusionary tools in achieving their purposes and understanding our first impulse to regulate them, we should always remember that “[e]xclusion is sometimes quite valuable, it is oftentimes inevitable, and it has always been misunderstood”[2]. We cannot avoid all kinds of exclusion and, even regarding unlawful discriminations, overregulating the market may produce pervasive results.
Regarding exclusionary amenities, the author suggests unbundling such amenities from the desirable good[3]. Is that necessary or even recommendable? As an antitrust remedy, unbundling is applicable to dominant firms who are transferring their market power from one product to another by “bundling” or “tying” the sale of both of them, making it impossible or unreasonable (bundling discount) to acquire only the product that the consumer really wants. Selling two products together, even with discounts and by a dominant firm, is not always an antitrust violation. Antitrust laws require something more[4]; even more than simply intention or purpose.
Should we apply the requirements of antitrust laws to regulate unbundling of exclusionary amenities? Should we require that the desirable good (tying good) is not available by itself in the market and that no competitor can provide it at a competitive price? Should we require that the seller of the goods be a dominant firm (has market power)? Certainly we cannot apply those requirements, because in unlawful discriminations we are not worried about the effects on the market of a specific good; but we are worried about the negative externalities of the discriminatory behavior: psychological harm, inequality of opportunities, social outrage, etc.
If the requirements of antitrust laws for unbundling are not applicable, what rules should control the use of such amenities? Should we sanction and unbundle all club goods? Should we investigate the intention and private thoughts of developers? Should we analyze only the effects of the conduct and sanction homogeneity? In my opinion, none of these solutions is viable without a huge margin for error and the resultant inefficiency (sanctioning desirable conduct or not sanctioning undesirable conducts reducing deterrence).
If we cannot find an efficient framework maybe it is a better idea just to leave the market to work. After all, if heterogeneity is such a desirable good and discrimination is so despicable, the market should choose the first and sanction the latter. Definitely, for the market to work there is a need for information. If we want the market to sanction the unlawful use of amenities or club goods, consumers need to learn the complex strategies for exclusion, and, from this point of view, Professor Strahilevitz’s book is a great beginning. It “searchlights” the correct direction.
[1] Lior Jacob. Strahilevitz, Information and exclusion (New Haven [Conn.: Yale University Press, c2011.), 198.
[2] Ibid.
[3] Ibid., 123.
[4] For a complete explanation about tying and bundling discounts: Herbert J Hovenkamp, “Discounts and Exclusions,” SSRN eLibrary (2005), http://ssrn.com/paper=785966.
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