by Jeff Sovern
Recently I asked a research assistant to review the web sites of several top law schools to see if they offer courses in consumer law. Though the web sites may not necessarily report accurately what course are offered (courses are sometimes added and dropped at the last minute, etc.), to the extent that the web sites are accurate, they are disappointing. Among the schools that appear not to offer a basic consumer protection course are Yale, Columbia, NYU, Virginia, Stanford, Chicago, Michigan, and Texas. Georgetown offers a comparative consumer protection course (comparing US and European laws) while Harvard has a Predatory Lending/Consumer Protection Clinical Workshop. I’ve heard that Penn and Boalt will offer consumer law courses next year.
Of course I have a personal stake in more law schools teaching consumer law. Not only have I co-authored a consumer law casebook, as regular readers of the blog know, but more full-time professors in the area would probably increase the amount of consumer law scholarship. In addition, professors at such schools could be expected to enhance both the quality of such scholarship and professorial conversations about consumer law topics. All this would benefit me personally.
But the rest of you also have such a stake in elite schools teaching consumer law. Consumers and consumer lawyers would benefit if more law students at elite schools were exposed to consumer protection laws. Many of the graduates of these schools become leaders in law-making, serving on the bench or in legislatures, and if they better understood the relevant legal issues, we might get better consumer protection laws. These schools disproportionately feed the law professoriate, and also serve as models for non-elite schools, and so more non-elite law schools would probably offer consumer protection courses too. Doctrinal law school classes tend to provide a balanced approach to consumer protection issues, exposing students to the policy arguments on behalf of both consumers and industry. Thus, perhaps graduates of these schools who go on to represent lenders, say, would better understand the costs of their recommendations to their clients. Perhaps more graduates of such schools would be interested in representing consumers if they were more familiar with consumer laws.
Consumer lawyers—and consumers generally—would also benefit from more professors thinking and writing about consumer issues. Law professors are supposed to be neutral commenters on legal problems and to make arguments for the best solutions to those problems. Right now far fewer of us are doing that in connection with consumer issues than issues in many other areas. Constitutional law is important, but it touches far fewer lives than consumer laws do. Who knows what solutions to consumer law problems academics could come up with if they focused on consumer law?
The odd thing is that elite law schools should offer courses in consumer protection out of self-interest. After all, few subjects affect more people than consumer law. Not all Americans pay taxes, but all consume. To be sure, probably few graduates of elite law schools devote much time to representing individuals (which is also an argument for not offering courses in wills or employment discrimination, but never mind), but a great many will represent businesses that deal with consumers and will need to know consumer law for that purpose (think of deceptive advertising, consumer credit, warranties, etc.). Consumer law courses also serve significant pedagogical purposes. For example, when I teach debt collection, I require my students to meld together federal statutory law (the FDCPA), state statutory law (the NY counterpart to the FDCPA), and state common law rules. Not many courses offer an opportunity to do that. Nor do many courses provide an opportunity to contrast disclosure remedies and regulation, or to examine the gulf between rational behavior and actual behavior. Consumer law classes also tend to correct some of the overstatements students learn in other courses. Thus, torts classes typically teach the law of fraud, but not the far more powerful law of deceptive trade practices. Similarly students may earn top grades in contracts classes without discovering the impossibility of disclaiming implied warranties under the Magnuson-Moss Act or how to obtain attorney’s fees for warranty breaches under that statute. Consumer law is a capstone course, pulling together the themes of different subject areas. Consumer law can also be more engaging and topical than many other subjects: headlines regularly appear about and students may have experiences with identity theft, predatory lending, spam, telemarketing, and other consumer issues.
So why do so few elite schools offer the course? I’m not sure, but here’s a guess. Decisions to offer non-core subjects are often driven by professorial preferences; a professor hired to teach a core subject becomes interested in an area and wishes to teach in it. That seems more likely to happen if the course is one the professor took as a student or practiced in. But professors at elite schools tend to graduate from those schools, and if they weren’t exposed to consumer law as a student, they’re less likely to think of it as a subject they would like to teach. Moreover, fewer professors have extensive practice experience than was once the case, and so they have fewer opportunities to learn consumer law in practice. In addition, professors may believe that their students are not likely to practice in the area of consumer law—something which tends to become a self-fulfilling prophecy (and may not be true; probably many graduates of elite schools represent banks, companies that advertise, etc.). Probably there are also other reasons. But I do know this: the lives of consumers would be better if more lawyers learned consumer law.