Why Don’t More Elite Law Schools Offer Consumer Law Courses?

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.

Comments

[Wayne C. Watson]

One of the best courses I took at UT Law was the DTPA course taught by adjunct/consumer lawyer Michael Curry. I became board certified in Consumer Law and I (along with many other Texas graduates) have been proud to represent 100s (1000s?)of individuals in consumer law matters.

[Jim Hawkins]

UT still offers that course once a year. It was excellent and is now taught by Manny Newburger, an adjunct.

[Andrew Engel]

I have raised this issue time and again. Much of our economy is driven by consumer consumption. On both the state and federal level, laws and regulation alters the normal rules of engagement in consumer transactions - the UCC is usurped, contract principles are altered, disclosures required, terms barred, remedies changed. It seems that too much money is at stake for there to be so little instruction on consumer law.

[Kim Breger]

Just to add-- my colleague Roger Bertling and I taught a consumer law course for the first time this last semester at Harvard (as Lecturers)in addition to our clinic course.

[Jeff Sovern]

Thanks for these corrections. It's great that Harvard offered a consumer law course last year and that Texas offers a DTPA course (though there's a lot more to consumer law than just the DTPA, as you can tell from this blog). I should say that I was not reporting on all the top schools, just a sample. Of course Mike Greenfield teaches consumer law at Washington University (and speaking as someone who has co-authored a casebook, I have tremendous admiration for someone who could produce a consumer law casebook by himself--and Mike also has another casebook and a treatise). I heard yesterday that Minnesota also has a consumer protection clinic.

[Brian]

For what it's worth, I took consumer law in 1983 or 1984 at Harvard. I liked the course a lot. I don't know whether it was taught regularly after that.

[Anita Bernstein]

I'm also interested in the question Jeff raises, and ruminated on it a bit a couple of years ago (64 Md L Rev 303 (2005)), taking a leaf from Jeanne Schroeder to speculate that the rise of law and economics in the curriculum has encouraged instructors and students to view law from the perspective of those who govern, rather than those who are governed. Thus portions of "consumer law" have morphed into "products liability," with its focus on incentives for manufacturers and the choices that governing institutions make (pp. 324-25). Less elite schools may be in closer touch with people who are governed, as compared with those who decree policy from above. Recommended reading: Martha Chamallas's "The Disappearing Consumer" in Roger Williams U.L. Rev.

[dcuser]

1) I bet that a consumer law course would turn out to be tremendously popular if taught by a good professor. Even if few students at Harvard think they'll end up practicing in consumer law, they are all consumers themselves. They all have a tremendous interest in knowing their own rights with regard to auto sales, mortgages, credit reports, renters' rights, and so on.

2) One problem you haven't hit on, though, is the fact that elite law schools draw their students from such geographically dispersed areas. A consumer law class will have much more punch (and be much more useful) if it concentrates on specific state-law as well as the main federal statutes. But it doesn't make sense for Harvard to go into great detail about Massachussetts law -- most of its students come from (and expect to end up in) other states. Of the elite law schools, the ones with the best chance for teaching consumer law would probably be state schools in large states (Texas, Boalt, Berkeley, UCLA, Michigan, Wisconsin, Minnesota, and so on.). Because of the tuition discount and admission formulas, a larger proportion of students at those schools will tend to be from that state, making it easier to teach that state's laws. (In addition, those state schools might have a sort of public service interest in teaching the consumer laws of their own jurisdiction.)

[David Friedman]

Here at Willamette, our clinic has a partnership with the Oregon Department of Justice that enables students to litigate DOJ cases under traditional clinical supervision. Law schools located in state capitals or near state AG offices should investigate this type of opportunity. The students love the work. Anyone interested in hearing more should contact me via email and I can get information to you.

I strongly endorse the notion of offering consumer law as a course. You can accomplish a great deal with the course pedagogically. The course not only deals with the compelling substance noted in the above posts, but it also walks students through a variety of broader issues. Our consumer protection regime is so tragically diffuse that you can take your students through federal-state pre-emption issues, administrative law, comparative statutory approaches, the common law, self-regulation of professions (how the legal and medical fields do it), etc.

A walk through state statutes and regs is like a walk through commercial scam history. (e.g., In state A, funeral directors are not allowed to make offers of a free casket with other burial and funeral services; in State B, instead of criminalizing the sale of mercury thermometers, they made it an unlawful practice to sell them.) It's an opportunity for commercial law archaeology, too.

Some great questions and themes for the students are "How did we wind up with this current diffuse regime... how could we make the regime more proactive and less post hoc?" Some classic regulation and public policy issues emerge. I think the material is engaging, useful in practice, personally relevant to the students, yet broad enough to allow for some creative and reflective thematic thought.

One could view this area as great fodder for a seminar, as well as a larger course. If you teach it well, you'll draw a crowd.

[Joe S.]

I can think of several reasons why consumer law is unfashionable in the law schools.

First, consumer law is a branch of commercial law. As Larry Garvin recently pointed out, commercial law suffers from its own form of law-school leprosy. Larry Garvin, The Strange Death of Academic Commercial Law, 68 OHIO ST. L.J. 403 (2007). Since commercial law is the passport to consumer law, any problems with commercial law should transmit over to consumer stuff.

Second, consumer law is somehow viewed as "ideological," unlike commercial law. "The exception to this is consumer law, the little sister of commercial law, which because of its unruly and contentious nature, is often banished from the process of reasoned reform." Iain Ramsey, The Politics of Commercial Law, 2001 WIS. L. REV. 565 n.4. This is nonsense, of course. But it does come across as more contested than commercial law; less analytic. I think that law teachers like dealing with more overtly analytic material.

Third, I don't think that the students in elite law schools are all that interested in representing people with less social status than them. They talk a good game, but they are not voting with their feet. It is easy to find elite law school grads in low-paying jobs--if said low-paying jobs involve politics, senior-level-track public administration, or impact litigation. They can afford it, somehow. Some of them are trustafarians, some rely on high-pay spouses, some are willing to live cheap. What they cannot afford is to have the social status of poor people rub off on them. Microeconomics, after all, is easy to learn; street Spanish is hard.

Fourth and finally, consumer law already works very well for the more comfortable part of society: those who go to elite law schools. Prime mortgages are a joy and wonder to behold, thanks to APR disclosures. Credit card convenience users are heavily subsidized by revolvers, and benefit from Reg Z. An elite law school grad is much more likely to be ripped off by an SEC-regulated entity than an FTC-regulated one.

[Jeff Sovern]

Thanks for these interesting and thoughtful comments. I wanted to respond to dcuser's point about focusing on the laws of a particular state. In writing our casebook, we faced the issue, as many casebook authors do, of what to do with state law. We solved the problem, again just as many casebooks do, by drawing on the laws of many states. We're somewhat helped in doing so by the Uniform Consumer Credit Code, though few states have adopted it. One of my co-authors teaches the course as a national course while I use a lot of New York law because I teach in NY and many of my students will practice in NY (though increasingly they go elsewhere). I agree that some may find it particularly useful to teach the course using the laws of their states, as I do, but you don't have to.