Vijay Raghavan of Brooklyn has written Shifting Burdens at the Fringe, 102 Boston University Law Review (2022). Here’s the abstract:
Scholars are increasingly arguing that consumer law can be a site of distribution. This raises at least two concerns: the classic argument associated with Louis Kaplow & Steven Shavell against redistributing income through legal rules, and a more recent concern that additional equity in consumer law will mean less equity in other important domains. In this Essay, I defend the pivot toward distribution by largely sidestepping these issues. Rather than arguing that consumer law is a good site for distribution and that it will not crowd out other options, I suggest that the pivot toward distribution is justified by the structure of consumer credit markets.
Leveraging insights from the recent literature on the legal design of money, I argue that consumer credit is best understood as new money, and price and access in consumer credit markets are best understood as ways to finance the private disbursement of public obligations. The upshot of this framing is it offers a new way to think about the function and potential of consumer law and consumer credit regulation. Consumer credit regulation is best understood as a way to shift the incidence of financing the creation of new money and not as an intervention in purely private exchange. As such, it has the potential to unwind some of the regressivity of money creation in our system by progressively redistributing burdens in credit markets. In this Essay, I consider how these ideas can change the way we justify consumer law and regulate consumer credit markets.