Learned Hand once described the task of the Federal Trade Commission as “discover[ing] and mak[ing] explicit those unexpressed standards of fair dealing which the conscience of the community may progressively develop.” In a previous post, I argued that moving consumer protection law beyond consumer sovereignty requires recovering this way of thinking, common among Progressives and inspired by the common law. Talking in terms of fair dealing requires recovering the instinct for moral economy. “Democratic forms of moral economy,” I elaborated, “require developing institutions that enable collective deliberations about which (and whose) interests various consumer markets serve and which interests they ought to serve,” and endowing these institutions with the power to shape the rules that govern those markets.
If we are to recover this style of reasoning, we will have to overcome the defense mechanisms against it in contemporary legal consciousness.
With respect to the FTC’s consumer protection authority, the most powerful defense mechanism is a morality tale about what happened when the FTC tried to imbue the notion of “unfairness” (which lies at the core of its consumer protection authority) with too much moral content. Most consumer protection lawyers have at least a vague notion that the current legal standard for determining whether an act is “unfair” was written after the FTC was chided for attempting to use its unfairness authority to ban children’s advertising some time in the 1970s. On the standard version of this story, the public recoiled at the FTC’s audacity, Congress forced the FTC to develop a more neutral/objective standard for determining whether something is “unfair”, and economists were called in to add some rigor to the proceedings. The lesson is that only bad things result when morals and politics guide consumer protection. The FTC should stick to promoting “consumer choice”.
In a new draft article, I argue that this story is bunk.