The Role of Data in Organizing an Access to Justice Movement

reminds us that civil justice reform has to start with compelling human stories. She’s right. Building a movement requires drawing in the care and effort of those who previously had not seen the problem. A story of a mother and her family unjustly evicted from their home, of an older gentleman whose life savings are unjustly taken, or of a father fighting for visitation rights unjustly denied: each of these personal stories is an outrage and will often generate anger in the listener. Stories lead those who do not live the injustices of our civil justice system every day to ask: How can this be? Broad outrage, the “how can it be?” question, and the demand for answers and action, are the fuel of any social justice movement. But in a social justice movement, personal stories rarely allow us to see the complete picture. To change the system, we as advocates also need the wider communities in which we live to see that the personal stories are representative of thousands more that are the product of the same and related systemic failures. Individual acts of compassion for those whose stories we hear will not help the thousands whose stories we never hear. The “complete picture” of the lack of access to civil justice is that the problem is systemic and that fixing it will require big changes and concerted action

Advancing Federalism Concerns in Administrative Law Through a Revitalization of State Enforcement Powers: A Case Study of the Consumer Product Safety and Improvement Act of 2008

In the areas of health and safety regulation, environmental protection, and consumer protection, the states often fill in for federal regulators through the use of traditional state common-law doctrines, like negligence or nuisance, or their own consumer protection statutes. Often, state laws echo the corresponding federal laws and can be enforced by state attorneys general and private citizens. However, over the past decade, federal agencies have aggressively preempted concurrent enforcement of state statutes and regulations, and sometimes state common law as well. This preemption creates a vast unregulated domain when federal agencies do not enforce their regulations. If, as Professor Gillian Metzger claims, administrative law is the new federalism, it appears to be a federalism strongly weighted in favor of the federal government

The Rostrum Principle: Why the Boundaries of the Public Forum Matter to Statutory Interpretation

There is a section of dicta in the recent Supreme Court decision on health care reform that might portend new ground, although not in Commerce Clause jurisprudence. Rather, in his dissent, Justice Antonin Scalia did a curious thing for those interested in statutory interpretation: He cited an op-ed in The New York Times that quoted Senate Majority Leader Harry Reid. Justice Scalia used this quotation as evidence of meaning on the issue of whether Congress intended to draft a severable mandate, or more specifically, why the Court should not interpret the fact that Congress was silent as anything more than compromise. Of course, Justice Scalia often hammers the sentiment that Congress is a messy business, full of backroom deals and compromises, but his choice of source here is illuminating. Though he repeatedly criticizes the use of traditional legislative history to interpret statutory meaning, Justice Scalia rather casually referenced a newspaper quotation of a senator regarding provisions in the Patient Protection and Affordable Care Act. This bit of dicta poses an interesting question: Should the Court look to the public statements of elected officials (outside of the Congressional Record) as evidence of meaning for purposes of interpreting ambiguous (or, in this case, silent) statutory text? Is there a fundamental difference between contemporaneous statements by senators made to media outlets and those statements made on the legislature floor? How should these two types of statements made by elected representatives relate to each other and to the interpretation process

Protecting Consumer Protection: Filling the Federal Enforcement Gap

Since 2014, when a first-of-its-kind empirical study looked at how public enforcers use their authority under unfair and deceptive acts and practices (“UDAP”) laws, the enforcement landscape has changed. Most notably, the Trump Administration weakened enforcement on the federal level. In the wake of this political shift, many state enforcers rushed to fill the gap left by weak federal enforcement. At the same time, the state enforcers themselves experienced changes both internal (including changes to budgets and stated policy priorities) and external (electoral changes regarding state Attorneys General, changes to statutory authority, and other changes governing the enforcer’s authority). This article presents findings from a follow-up study examining the public UDAP enforcement landscape in 2018. The principal finding is that states employed substantially the same strategies toward UDAP enforcement in 2018 as they did in 2014. This finding validates the central observation of both years’ studies of state UDAP enforcement: states can be characterized by distinct strategies of consumer protection enforcement. This information alone offers insight into the remarkable stability of state UDAP enforcement, even across varied strategies and a changing landscape. Other findings also begin to shed light on how states might react to extreme changes in enforcement on the federal level. For example, even though six states have made public statements backed by concrete actions to attempt to fill an enforcement gap left by the absence of federal action, state enforcement case volumes were up among all states. Public compensation, however, was down among all types of enforcement actions in 2018. Finally, comparisons of enforcement case volumes and strategies across states that experienced other changes over the time period—changes in leadership and statutory authority, for example—mirrored the overall trend of an increase in enforcement coupled with general strategic stability. Strategies as a whole do not seem closely aligned with partisan politics. This study creates a needed point of comparison to the 2014 data, allowing stakeholders to ask deeper questions about how public enforcers should wield their discretion and authority to resolve consumer protection cases. With debt levels in America at an all-time high, and federal enforcement of consumer law at an all-time low, research-based action is urgently needed to sharpen our understanding of the role and potential effectiveness of institutions tasked with protecting consumers from fraudulent lending schemes and oppressive debt collection strategies as well as the myriad other types of consumer scams that lead Americans toward more debt. The data here give state officials and state-based reformers the information needed to maximize enforcement in a way that improves consumers’ lives