Publications

Economic theory suggests that, in most circumstances, market forces will ensure that standard form contracts contain terms that are not only socially efficient but also beneficial to non-drafting parties as a class compared to other possible combinations of price and terms. This analysis in turn suggests that courts should enforce all form terms or, at a minimum, all form terms that non-drafting parties read and understand. Relying on social science research on decisionmaking, this Article argues that non-drafting parties (usually buyers) are boundedly rational decisionmakers who will normally price only a limited number of product attributes as part of their purchase decision. When contract terms are not among these attributes, drafting parties will have a market incentive to include terms in their standard forms that favor themselves, whether or not such terms are efficient. Thus, there is no a priori reason to assume form contract terms will be efficient. The Article then argues that the proper policy response to this conclusion is greater use of mandatory contract terms and judicial modification of the unconscionability doctrine to better respond to the primary cause of contractual inefficiency.

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“Too much red tape” is a common complaint from businesses and citizens in OECD countries. This report analyses proven approaches commonly adopted by governments to reduce and streamline administrative procedures like one-stop shops (physical and electronic), simplification of permits and licence procedures, time limits for decision-making, methods to measure administrative burdens, regulatory-compliance assistance for small and medium-size companies, and increasing reliance on IT-based solutions.

The "rules of the game" are the principles applied to the regulation of economic activities, that consists of at least six features: independent regulatory authorities; single mission authorities; conditional nature; trilateral relationship; substantive due process of law; judicial review. From regulation theory to practice, three aspects come out, namely in the telecommunications market: the asymmetry of the subjects being regulated; the asymmetry of the rules; the multiplication of the regulators, together with regulatory competition. Thus the regulation makes it possible multiple games between regulators and regulated, in a great number of combinations; and there is no lack of cases in which the rules of the game are broken. Upon these premises, the author shows the evolution of the model theorized by Max Weber at the beginning of the twentieth century. According to this model, on the one hand, within the "economic rationality" there were only relations between private subjects and there was no situation where private subjects could play with the rules and with the regulators; on the other hand, within "bureaucratic rationality" there was not any possibility that public bodies could interact both between themselves and with the private subjects, breaking down and organizing their actions in various ways. Nowadays, there is no deep separation between "public" and "private"; indeed, these are no longer considered as two poles with different principles and rules: the border line between regulators and those regulated corresponds and intersects with the line between public and private.

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