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Lawyers and Consumer Protection Laws

Published online by Cambridge University Press:  02 July 2024

Stewart Macaulay
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Abstract

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The conventional model of the practice of law views lawyers as those who apply legal rules in the service of client interests, checked only by the constraints of the adversary system. A study of the impact of consumer protection laws on the practice of Wisconsin lawyers shows this to be an oversimplification. Lawyers for individuals tend to know little of the precise contours of consumer protection law. They most often serve as mediators between buyer and seller, relying on general norms of fairness and good faith. Lawyers for businesses are more likely to make use of the law, but they are seldom called on to deal with particular disputes. Lawyers' own values and interests are reflected in the way in which they represent clients. As a result, reform laws which create individual rights are likely to have only symbolic effect unless incentives are devised to make their vindication in the long-range interest of members of the bar. Moreover, an understanding of the many roles played by lawyers also requires a more expanded picture of practice. The picture of the lawyer as litigator in the adversary system may itself serve largely symbolic functions.

Type
Research Article
Information
Law & Society Review , Volume 14 , Issue 1 , Fall 1979 , pp. 115 - 171
Copyright
Copyright © 1979 The Law and Society Association.

Footnotes

*

This study is part of a larger project dealing with consumer protection and the automobile industry, the Magnuson-Moss Warranty Act, and the consumer protection policies of the Federal Trade Commission, which was funded by the National Science Foundation Law and Social Science Division, SOC 76-22234. Dr. Kenneth McNeil and Professor Gerald Thain are carrying out other parts of the project.

As always, a study is a collaborative effort, and I owe thanks to many people. Dr. Jacqueline Macaulay edited all of the many drafts of the manuscript and was a challenging and helpful critic. Kathryn Winz spent a summer interviewing lawyers, and her own experience in the Office of Consumer Protection of the Wisconsin Department of Justice was most valuable. Ellen Jane Hollingsworth, Marc Galanter, Robert Gordon, Stuart Gullickson, Joel Grossman, Kenneth McNeil, Richard Miller, Ted Schneyer, Gerald Thain, David Trubek, Louise Trubek and William Whitford all read a draft of the manuscript and made very helpful comments. Able research assistance was provided by Jill Anderson, Jane Limprecht and Daniel Wright. At the invitation of Professor John Schlegel, I presented my ideas at a seminar of the Faculty of Law and Jurisprudence at SUNY Buffalo, and I took away important ideas. Yet after all this help, of course, I am still responsible for all errors.

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