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The Folklore of Unfairness

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The Folklore of Unfairness 43166-nyu_96-2 Sheet No. 31 Side A 05/11/2021 08:20:10 \\jciprod01\productn\N\NYU\96-2\NYU202.txt unknown Seq: 1 10-MAY-21 15:00 THE FOLKLORE OF UNFAIRNESS LUKE HERRINE* The Federal Trade Commission Act’s ban on “unfair . acts and practices” would, on its face, seem to give the FTC an awesome power to define proper treatment of consumers in changing conditions. But even in a world of widespread corporate surveillance, ongoing racial discrimination, impenetrably complex financial prod- ucts, pyramid schemes, and more, the unfairness authority is used rarely, mostly in egregious cases of wrongdoing. Why? The standard explanation is that the more expansive notion of unfairness was tried in the 1970s, and it failed spectacularly. The FTC of this era was staffed by bureau- crats convinced of their own moral superiority and blind to the self-correcting dynamics of the market. When the FTC finally reached too far and tried to ban television advertising of sugary cereals to children, it undermined its own legiti- macy, causing Congress to put pressure on the agency to narrow its definition of unfairness. This Article argues that this standard explanation gets the law and the history wrong, and, thus, that the FTC’s unfairness authority is more potent than com- monly assumed. The regulatory initiatives of the 1970s were actually quite popular. The backlash against them was led by the businesses whose profit margins they threatened. Leaders of these businesses had become increasingly radicalized and well-organized and brought their new political clout to bear on an unsuspecting FTC. It was not the re-articulation of the unfairness standard in 1980 that narrowed unfairness to its current form, but rather the subsequent takeover of the FTC by neoliberal economists and lawyers who had been supported by these radicalized business leaders. The main limitation on the use of the unfairness authority since then has been the ideology of regulators charged with its enforcement. In fact, the conventional morality tale about the FTC’s efforts in the 1970s are part of what keeps this ideology dominant. A reconsideration of the meaning of unfairness requires situating the drama of the 43166-nyu_96-2 Sheet No. 31 Side A 05/11/2021 08:20:10 1970s and 80s in a longer struggle over governance of consumer markets. Since the creation of the FTC, and even before, an evolving set of coalitions have battled over what makes markets fair. These coalitions can be divided roughly into those who favor norm setting by government agencies informed by experts held accountable to democratic publics and those who favor norm setting by business leaders made accountable via the profit motive. The meaning of “unfair . acts and practices” has been defined and redefined through these struggles, and it can and should be redefined again to reconstruct the state capacity to define standards of fair dealing. * Copyright © 2021 by Luke Herrine, Ph.D. Candidate, Yale Law School. For com- ments, discussion, and encouragement, thanks to Daniel Markovits, Jeff Gordon, Alex Kolokotronis, Amy Kapczynski, David Grewal, Corinne Blalock, Kate Redburn, Rick Perlstein, Sandeep Vaheesan, Sanjukta Paul, and participants in the 2020 Consumer Law Scholars Conference, especially Ramsi Woodcock, Sarah Dadush, and Rory Van Loo. For sharing their memories, thanks to Al Kramer, Tracy Westen, Dee Pridgen, and Bill Kovacic. Thanks finally to the wonderful editorial team at the New York University Law Review. 431 43166-nyu_96-2 Sheet No. 31 Side B 05/11/2021 08:20:10 \\jciprod01\productn\N\NYU\96-2\NYU202.txt unknown Seq: 2 10-MAY-21 15:00 432 NEW YORK UNIVERSITY LAW REVIEW [Vol. 96:431 INTRODUCTION ................................................. 432 R I. THE STANDARD STORY ................................. 439 R A. The Story the FTC Tells About Itself. 439 R B. Questioning the Received Wisdom . 442 R II. UNFAIRNESS BEFORE UDAP . 444 R A. Common Law Roots: Moral Economy, Fair Dealing, and Unfair Competition ............................. 445 R B. From Common Law to the Federal Trade Commission ......................................... 453 R III. THE DEVELOPMENT OF UDAP . 462 R A. Consumer Protection at the FTC Before Wheeler-Lea ........................................ 462 R B. Consumer Mobilization and the Creation of UDAP ........................................... 466 R IV. UNFAIRNESS ACTIVATED ............................... 472 R A. The Sixties and the Cigarette Rule . 472 R B. Third-Wave Consumerism Breaks the Dam . 477 R C. KidVid, Part 1 ...................................... 484 R V. THE BUSINESS BACKLASH .............................. 491 R A. Corporate Mobilization, Neoliberalism, and the Anti- Consumerist Countermovement . 491 R B. KidVid, Part 2: The “Stop the FTC” Campaign . 502 R C. The Crucible of the Unfairness Policy Statement . 509 R VI. NEOLIBERALISM ENTRENCHES . 514 R A. The Miller Era ...................................... 514 R B. The Contemporary Settlement . 518 R CODA .......................................................... 522 R 43166-nyu_96-2 Sheet No. 31 Side B 05/11/2021 08:20:10 INTRODUCTION On June 13, 2007, Representative Barney Frank called the House Financial Services Committee to order. With foreclosures mounting and global capital markets teetering (Bear Sterns’s downfall would begin a month and a half later) the Committee had brought before it representatives from the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), the Federal Reserve, the Office of Thrift Supervision (OTS), and the Federal Trade Commission (FTC). All of these agencies had authority to police “unfair or deceptive acts and practices” on consumer finan- cial markets. How, the Committee wanted to know, had so many bad loans been issued without any of them stepping in? The scope of the fraud involved in the mortgage market had not yet become public, but it was already clear that many of the loans in default had been 43166-nyu_96-2 Sheet No. 32 Side A 05/11/2021 08:20:10 \\jciprod01\productn\N\NYU\96-2\NYU202.txt unknown Seq: 3 10-MAY-21 15:00 May 2021] THE FOLKLORE OF UNFAIRNESS 433 doomed to fail, structured with balloon payments, loaded up with all kinds of fees, and issued to borrowers that clearly would not be able to pay them absent constantly rising housing prices. If so, Senator Frank wanted to know, weren’t those loans unfair? And didn’t all of these regulators have the mandate to prevent “unfair . acts and practices” (in addition to “deceptive acts and practices”), as provided in the Federal Trade Commission Act? What was going on?1 The Federal Trade Commission Act’s ban on “unfair . acts and practices” would, on its face, seem to give the FTC an awesome power to define proper treatment of consumers in changing conditions. But even in a world of widespread corporate surveillance, ongoing racial discrimination, impenetrably complex financial products, pyramid schemes, and more, the unfairness authority is used rarely, mostly in egregious cases of wrongdoing. Why? The standard explanation is that the more expansive notion of unfairness was tried in the 1970s, and it failed spectacularly. The FTC of this era was staffed by bureaucrats convinced of their own moral superiority and blind to the self-correcting dynamics of the market. When the FTC finally reached too far and tried to ban television advertising of sugary cereals to children, it undermined its own legiti- macy, causing Congress to put pressure on the agency to narrow its definition of unfairness. This Article argues that this standard explanation gets the law and the history wrong, and, thus, that the FTC’s unfairness authority is more potent than commonly assumed. The regulatory initiatives of the 1970s were actually quite popular. The backlash against them was led by the businesses whose profit margins they threatened. Leaders 43166-nyu_96-2 Sheet No. 32 Side A 05/11/2021 08:20:10 of these businesses had become increasingly radicalized and well- organized and brought their new political clout to bear on an unsus- pecting FTC. It was not the re-articulation of the unfairness standard in 1980 that narrowed unfairness to its current form, but rather the subsequent takeover of the FTC by neoliberal economists and lawyers who had been supported by these radicalized business leaders. The main limitation on the use of the unfairness authority since then has been the ideology of regulators charged with its enforcement. In fact, the conventional morality tale about the FTC’s efforts in the 1970s are part of what keeps this ideology dominant. A reconsideration of the meaning of unfairness requires situating the drama of the 1970s and 80s in a longer struggle over governance of 1 See Improving Federal Consumer Protection in Financial Services: Hearing Before the H. Comm. on Fin. Servs., 110th Cong., 40 (2007) [hereinafter Consumer Protection Hearings]. 43166-nyu_96-2 Sheet No. 32 Side B 05/11/2021 08:20:10 \\jciprod01\productn\N\NYU\96-2\NYU202.txt unknown Seq: 4 10-MAY-21 15:00 434 NEW YORK UNIVERSITY LAW REVIEW [Vol. 96:431 consumer markets. Since the creation of the FTC, and even before, an evolving set of coalitions have battled over what makes markets fair. These coalitions can be divided roughly into those who favor norm setting by government agencies informed by experts held accountable to democratic publics and those who favor norm setting by business leaders made accountable via the profit motive. The meaning of “unfair . acts and practices” has been defined and redefined through these struggles, and it can and should be redefined again to recon- struct the state capacity to define standards of fair dealing. John Dugan, then Comptroller of the Currency, answered first. “I think we need to be careful here,” he said.2 “[T]he unfair standard legally under the Federal Trade Commission Act is not a judgment about unfairness.”3 He did not explain what he meant, but Representative Frank responded, “I understand that.”4 Sheila Bair, then Chair of the FDIC, also agreed: “I would just say that there can be a restrictive legal standard.”5 She did not clarify either.
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