Ex ante Access to Justice

Abstract

Access to justice is a key challenge in the consumer protection landscape. Scholars and policymakers acknowledge this challenge and have devised various means to increase consumers’ access to justice. Small claims courts and dispute tribunals, class actions and group litigation, exemplary damages, educational efforts, and accessible legal advice all assist consumers in accessing the court system and enforcing their rights. However, these fail to address what this article dubs ‘ex ante access to justice’: the stage in which policymakers and legislators design the rules that govern business-to-consumer relationships. Industry pressure, lobbying and capture can result in ineffective consumer protection laws that benefit powerful industry forces and undermine consumers’ interests. This article (1) conceptualises the idea of ex ante access to justice, (2) illustrates the problem by referring to the domains of unfair contract terms and front-of-package food labelling, and (3) offers a suite of corresponding law and policy improvements.

Keywords: Access to justice; Consumer protection; Consumer voice; Ex ante access to justice; Food labeling; Industry power; Law-making; Prevention; Unfair terms