Regulatory and judicial consumer protection in the United States of America: An assessment
Authors Linda S Mullenix
Affiliations: Morris and Rita Atlas Chair in Advocacy, The University of Texas School of Law
Source: Stellenbosch Law Review, Volume 30 Issue 1, 2019, p. 33 – 60
Consumers in the United States of America are protected through a vast scheme of federal and state regulatory agencies and bureaus. Notwithstanding the existence of an impressive bureaucratic apparatus for consumer protection, a persistent theme among scholars is the relative weakness of regulatory consumer protection in the United States, compared to that of other countries — most notably countries within the European Union. The public awareness of and impetus for robust consumer protection in the United States began in the 1960s, with a consumer movement founded by Ralph Nader. Since the 1960s, numerous consumer interest groups have served as lobbyists and watchdogs for consumer interests, pursuing legislation and instituting remedial actions before relevant agencies and in private litigation. This article explores the complex nature of regulatory consumer protection in the United States, describing the array of federal and state agencies whose mandate is consumer protection. The article explores the authority of these various executive branch bodies to issue rules and regulations, conduct investigations, prosecute and sanction violations of consumer protection laws. In addition to consumer protection authorized under federal law, the article further discusses the power of state attorneys general to pursue parens patriae actions on behalf of state citizens for consumer law violations. In assessing the efficacy of federal and state regulatory powers, the article surveys various legislative, executive, judicial, and political constraints on consumer protection agencies to carry out their missions. Finally, the article turns attention to consumer protection through the judicial system, focusing on individual and aggregate procedural means — especially class action litigation — for private enforcement of consumer protection laws. The article assesses the extent to which private litigation serves to counterbalance the problems associated with alleged weak regulatory enforcement of consumer protection laws.