Why Consumer Defendants Lump It
44 Pages Posted: 7 Jul 2020
Date Written: July 1, 2020
Contrary to popular claims about Americans’ litigiousness, one of the most common responses to civil legal problems is lumping it: choosing to do nothing even when there is legal action that might be taken. A substantial body of socio-legal scholarship investigates this phenomenon, but has focused almost exclusively on individuals’ willingness and ability to initiate legal actions as plaintiffs. Similarly, research on consumers’ participation in civil litigation is primarily concerned with the actions of consumer plaintiffs. Yet individuals also are named as defendants in civil actions, including many who are sued for claims arising out of consumer transactions. The majority of these suits are attempts to collect on consumer debts, and in most cases, the consumer defendant will never appear in court. By failing to appear, consumer defendants forego the opportunity to raise affirmative substantive or procedural defenses, negotiate with the plaintiff, or seek the court’s favor in discretionary rulings.
This Article takes a novel approach by considering how incentive structures and structural inequalities in litigation contribute to the limited legal participation of consumer defendants. To illustrate the impact of these forces, this Article presents an empirical study of the residential foreclosure process. Using an original dataset of more than 900 foreclosure cases filed in New York City, this Article tracks defendant homeowners’ participation in civil actions to foreclose. In situations such as those, consumer defendants’ participation not only potentially influences case outcomes, but also plays an important role in monitoring and enforcing procedural and substantive law. Recognizing the significance of legal action by consumer defendants, this Article offers reforms to address their limited participation in civil litigation. In doing so, it opens new areas of inquiry for consumer law scholars, as well as those concerned with access to justice.
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