Unfairness, Reconstructed

Abstract

We seem to be in the middle of a paradigm shift in consumer protection. For decades, regulators understood their mission as “preserving choice” through more effective informational remedies. In the past decade — and more decisively during the Biden Administration — 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 describes the change in historical context and provides a theoretical grounding for it, 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.

Keywords: consumer law, consumer protection, federal trade commission, consumer financial protection bureau, law and economics, law and political economy, administrative law, contracts