Myriam E. Gilles of Cardozo has written The Private Attorney General in a Time of Hyper-Polarized Politics, 65 Ariz. L. Rev. 337 (2023). Here’s the abstract:
With the enactment of the Federal Trade Commission Act (“FTC Act”) in 1914 and the Wheeler–Lea Act in 1938, Congress sought to establish a brawny federal consumer protection regime to guard against the myriad unfair and deceptive practices that threatened harm to American consumers. But courts in this era interpreted these statutes to confer exclusive enforcement authority in the Federal Trade Commission (“FTC”), declining to infer a private right of action. For many decades, the resulting enforcement gap in consumer protection law was filled largely by state Unfair and Deceptive Practices Acts (“UDAPs”), which sanction litigation by both public and private enforcers. But while consumer-initiated litigation under UDAPs has traditionally played an important role in achieving consumer justice, recently, private UDAP enforcement is imperiled by powerful corporate opponents who have successfully lobbied for changes that make it more difficult for consumers to sue for relief. Furthermore, these “reform” efforts have led to greater variation between and among UDAPs, rendering multi-state consumer class actions under Rule 23(b)(3) far more difficult to certify.
Meanwhile, at the federal level, head-spinning fluctuations of political power and hardening partisanship reveal the weakness of an inconsistent FTC enforcement agenda. In light of growing constraints on state UDAPs and the increasingly erratic, politicized nature of federal enforcement, this Article revisits a simple idea: amending the Federal Trade Commission Act to add an unwaivable private right of action, allowing injured consumers to supplement the FTC’s enforcement activities by bringing legal actions to remedy widespread harm. This application of the private attorney general is grounded in the reality that while politics may ebb and flow, citizens suffering injuries in the marketplace are a constant. Deploying these citizens to consistently enforce consumer protection laws—no matter the party in power or the Commissioner in charge—generates a more stable administration of laws and better ensures that corporate actors refrain from engaging in widespread misconduct.