Max N. Helveston of DePaul has written Judicial Deregulation of Consumer Markets, forthcoming in the Cardozo Law Review. Here's the abstract:
The dangers posed by insufficiently regulated consumer markets are both real and monumental. While the rights of consumers expanded drastically in the mid-to-late twentieth century, these protections have weakened in the new millennium. One of the forces driving this change has been the judiciary, where an anti-consumer jurisprudence has taken root. This is surprising, given the courts’ history of defending individuals’ commercial rights and combating unfair market practices.
Despite the significant ramifications that the removal of consumer protections have for every individual, the evolution of anti-consumerism in the courts has received scarce attention from the academy.
This Article fills this gap by collecting and analyzing the decisions underlying the judiciary’s shift on consumer law issues. It describes how changes in courts’ views about contractual interpretation, the propriety of judicial intervention in private relationships, and deference to alternative means of regulation have stripped consumers of their rights. It goes on to discuss the normative goals of consumer protection law and develops a framework for future pro-consumer governmental efforts. This framework challenges the pragmatic viability of doctrinal solutions to consumer law issues and describes why legislative and administrative measures are better suited to protecting consumers.