Professor Luke Herrine presented his article, The New Consumer Protection, at the Harvard/Stanford/Yale Junior Faculty Forum on June 29-30, 2023. Twelve-to-twenty junior law faculty (one-to-seven years of teaching) were selected to present at the Forum. The article discusses the shift in consumer protection practices – read the Abstract below:
We seem to be in the middle of a paradigm shift in consumer protection. Practices that have long been seen as problematic, such as add-on fees, drip pricing, and negative option marketing, are now, for the first time, the targets of coordinated action from multiple agencies. Newer business tactics that make use of Big Data—such as engagement maximization, price customization, and algorithmic discrimination—are close to being subject to new comprehensive regulatory regimes. Agencies have even begun to experiment with the use of consumer laws to protect small businesses and gig workers who have been exploited in part due to big businesses’ arbitrage of other regulatory regimes. Most importantly, policy analysis now focuses less on the need to “preserve choice” and to let the market “self correct” and more on substantive notions of quality and fairness against which business conduct is measured.
This Article describes this shift and attempts to nudge—no, shove—it forward. It argues that, whereas consumer protection was once guided by the value of “consumer sovereignty”, a growing appreciation for the limits of consumer choice and market competition has led bureaucrats and scholars to shift toward interpreting consumers interests and thinking pragmatically about how to shape regulation to further those interests. The Article provides a theoretical grounding for this shift, articulating a pluralist theory of consumer protection under the label “moral economy.”
The central legal focus of the Article is the statutory authority that has grounded much of the recent regulatory activity: the prohibition on “unfair acts or practices” shared by many federal and state agencies with consumer protection jurisdiction. The descriptive and normative arguments of this Article explain why it is now at the center of the action—and why that should be welcomed.
Click here to learn more about the Harvard/Stanford/Yale Junior Faculty Forum.