by Jeff Sovern
A lot has happened in consumer law in the last half-dozen years: To name only some of the highlights. consumer protection failures contributed to the Great Recession; Congress passed the Credit CARD Act in 2009 and the Dodd-Frank Act in 2010; Congress created the Consumer Financial Protection Bureau, which has in turn promulgated plenty of regulations and brought enforcement actions; words like robo-signing and foreclosure crisis entered the language; and alternative credit scores seem poised to take off, if they have not already done so. Consumer law has often been on the front pages of the newspapers in recent years. But not, it seems, in the Stanford Law Review, one of the elite law reviews in this country.
Consumer law professors have long bemoaned the failure of elite law reviews to give our subject the attention we think it merits. We are not unique in this; law professors in many disciplines complain that elite law reviews devote disproportionate attention to subjects like constitutional and criminal law, with the result that professors in those areas have more impressive resumes than we do. So I decided to test that proposition. I asked a research assistant, Eric Levine, to look at the issues of two elite journals published from 2007-2013 to count up the number of pieces that are predominantly consumer law pieces. One was the Stanford Law Review He came up with only three consumer law pieces, all professional articles: one by Nora Freeman Engstrom on attorney advertising; another by Omri Ben-Shahar on unfair contracts; and the last by Kenneth Bamberger & Deirdre Mulligan on privacy, collectively representing about 2% of all the Stanford law Review's professional pieces during that period (I should note that Eric's list may not be complete; I haven't had time to check the Stanford Law Review myself. But he would have to have omitted many consumer law pieces to make the number of consumer law articles as high as it should be given what has happened in the field. In any event, I hope that readers who know of other Stanford consumer law pieces will so note in the comments below)
Why so few in a time of such turmoil in the subject? It's hard to know. But here is a possible factor: regular readers of the blog will recall that I had another research assistant, Preston Postlethwaite, check law school web sites to see which schools are offering a consumer law course during the 2013-2014 school year. I later posted the list on the blog twice and solicited the names of additional schools teaching consumer law. As best I have been able to tell, Stanford did not offer the course this year. It's possible that is incorrect; if the course was offered at Stanford but no one wrote in to tell us, Stanford could have been wrongly omitted from the list. And just because Stanford didn't teach the course this year doesn't mean it didn't during the period Eric looked at. But if Stanford didn't, it is possbile that the failure of Stanford Law to offer a consumer protection course has led law review editors to conclude that articles on consumer law didn't warrant publication. It is interesting also to see that Stanford seemingly did not publish any student consumer law pieces during the years Eric looked at.
This contrasts with the Harvard Law Review, the other law review Eric checked. Harvard teaches both a basic course in consumer law and a clinic. From 2007-2013, the Harvard Law Review published 16 pieces on consumer law.The nine professional pieces it published during that period represented 8% of the professional articles it printed.
So, assuming Eric's research is correct, we have major changes in an important field of law apparently overlooked by a leading journal in the field.