An enduring question among comparative legal scholars centers on the enquiry concerning the reasons for the relative the litigiousness of individuals in civil and common law jurisdictions. The prevailing narrative suggests that the robust regulatory regimes in place in most civil law jurisdictions tempers the need for resort to aggressive private litigation auspices,while the comparative weak regulatory regimes in many common law jurisdictions – particularly in the United States – inspires resort to robust private law means for dispute resolution. Thus, in European Union countries, for example, pervasive legislative and structural regulatory authorities channel redress for alleged injuries through an elaborate scheme of public adjudicative bodies. In contrast, the prevailing trope posits that the weak regulatory structures in the United States necessitates and supports the robust, pervasive private consumer and tort litigation industries.
This article examines the regulatory and judicial protection of consumers in the United States. In addition to describing the various legislative initiatives, structural bodies, and judicial auspices available to protect consumers in the marketplace, the article further seeks to assess the efficacy of the means available to redress injuries to American consumers. In particular, the article seeks to assess whether evidence supports the prevailing narrative that weak regulatory measures are the primary reason for the robust private litigation industry in the United States. The article concludes that while there is some support for this theory, more data would be helpful in understanding the relationship between American public consumer protection auspices and the private litigation system that has developed in parallel to public means.
Linda S Mullenix, Regulatory and Judicial Consumer Protection in the United States of America: An Assessment, 30 Stellenbosch Law Review 33 - 60 (symposium issue 2019). 33 (Spring 2019).