Regular readers of the blog will recall that after the CFPB announced that it interpreted its power to proscribe unfair practices as reaching discriminatory conduct, the Chamber of Commerce and various banking trade organizations sued the Bureau in the Eastern District of Texas (it’s always Texas) challenging the Bureau’s determination. Both sides later moved for summary judgment (in the Bureau’s case, it moved to dismiss or in the alternative for partial summary judgment). On July 25, Judge J. Campbell Barker denied a request for a status conference, stating that the court anticipated issuing a ruling on the summary judgment motions within 45 days, or 32 days from the date of this post. One of the grounds the Chamber asserted is that the Bureau is unconstitutionally funded. In light of the Fifth Circuit’s decision embracing that claim, which binds the federal courts in Texas (and is now before the Supreme Court), it would not be surprising if Judge Barker granted the Chamber summary judgment for that reason and didn’t otherwise reach the merits. Still, the fact that Judge Barker has not already done so suggests the judge may reach additional issues. The list of issues includes procedural claims such as the Bureau’s position that the plaintiffs lack standing and that could foreclose consideration of the merits.
Still in case the court reaches the merits of the argument about the meaning of unfairness, I thought it might be interesting to explore what dictionaries published around 1938 said about the meaning of unfairness. I picked 1938 because the Bureau’s unfairness power is based on the FTC’s power to act when businesses engage in unfair acts or practices, and Congress added that to the FTC Act in 1938. The Supreme Court often uses dictionaries to interpret statutes, and has done so in litigation over consumer protection laws, such as in Henson v. Santander.
So what do the dictionaries say? Well, the 1943 Funk and Wagnalls dictionary–a dictionary lauded by Justice Scalia and Bryan Garner in their book, Reading Law–gives as the first definition of unfairness “[m]arked by dishonesty or fraud; showing partiality or prejudice.” Multiple dictionaries at that time included equitable among the meanings of fair and not equitable among the meanings of unfair. Examples include F.G. Fowler, American Oxford Dictionary (American rev. ed. 1927 and printed in 1931); New Century Dictionary of the English Language (H.G. Emery & K. G. Brewer, eds. 1927); Oxford English Dictionary (1933). In other words, at the time Congress gave the FTC the power to act against unfair practices, prejudiced conduct was seen as unfair. If the district court reaches the merits, it will be interesting to see what, if anything, it says about the dictionaries.
I’m working on an article about this and may have more to say from time to time.