The Public Stakes of Consumer Law: The Environment, the Economy, Health, Disinformation, and Beyond

By Rory Van Loo. Full Text.

Consumer law has a conflicted and narrow identity. It is most immediately a form of business law, governing market transactions between people and companies. Accordingly, the microeconomic analysis of markets is the dominant influence on consumer law. But consumer law is often described as, and assumed to be about, protecting the consumer, which implicates small instances of individual injustice. Both of these lenses are valuable but reflect limited awareness of the field’s importance among lawmakers, scholars, and the public. We are all consumers. Exchanges between consumers and corporations contribute to global warming when people buy energy-inefficient household appliances; drive public health epidemics, like obesity, due to harmful food purchases; and widen wealth gaps, when low-income or minority households are subjected to predatory sales practices. Yet despite these stakes, consumer law has struggled to gain intellectual or popular appeal, in contrast to the explosion in attention to antitrust as a mechanism for holding companies accountable. Unlike workers, veterans, and businesses, consumers have neither a department at the federal level nor a committee focused on them in either the House or the Senate. Many law schools do not even offer a consumer law course. This Article reveals the risks of marginalizing consumer law and calls for an institutional and conceptual reconstruction of the field. Consumer law always mattered, but recent shifts in legal institutions, markets, and technologies have further elevated its importance. To reflect that societal importance, and to return the economic analysis to its roots, a public priority principle should serve as consumer law’s analytic lodestone. Institutional reforms are also worth considering, such as the creation of legislative committees and a Cabinet position. At a minimum, it is time to recognize that consumer law has a meaningful role to play in the struggles to preserve the environment, foster health, promote prosperity, and strengthen democracy.