Luke Herrine


When law and economics barreled its way into consumer protection scholarship two score years ago, it brought with it the consumer sovereignty framework: an approach to analysis in which actual markets are compared to an ideal market in which consumers optimize exogenous welfare functions by choosing between optimally competitive sellers. Even after two decades of behavioralist critique and even with increasingly critical perspectives taking root since the Global Financial Crisis, this consumer sovereignty ideal continues to serve as both a descriptive and normative baseline for consumer protection scholarship. This Article argues that it is time to reconsider the consumer sovereignty framework in toto. A "moral economy framework" would be better. Instead of treating consumers as welfare maximization machines that sometimes malfunction,we ought to conceptualize them as bundles of socially influenced habits. Instead of treating markets as deviations from an ideal of perfect competition, we ought to conceptualize them as socially constructed and reproduced institutional forms. Instead of treating the goal of consumer markets as having rational consumer choice drive all outcomes, we ought to treat consumer markets as having multiple purposes, in accordance with their role in contributing to (a contestable account of) human flourishing. In sum, consumer markets are collectively created spaces to serve social ends. Thinking about consumer protection in this way allows us to see many existing laws in a new light, to draw together disparate strands of scholarship that dissent from economic orthodoxy, and to ask different sorts of questions about what and whom consumer protection is for.

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