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48 B.U. L. Rev. 559 (1968)
Remedies, Enforcement Procedures and the Duality of Consumer Transaction Problems

handle is hein.journals/bulr48 and id is 565 raw text is: REMEDIES, ENFORCEMENT PROCEDURES AND THE DUALITY OF CONSUMER TRANSACTION PROBLEMS DAVID A. RICE* Caveat emptor, according to both celebrants and mourners, is dead- buried by the vast flood of new consumer protection statutes.' Indeed, changes wrought in the substantive law of the marketplace have de- fined and established new consumer rights and merchant duties in recognition of the fact that mass advertising, distribution and mer- chandising have radically differentiated modern consumer transactions from the feudal antecedents upon which so many common law princi- ples are based. Much has been done and said about the plight of the consuming public. The impact of the legal recognition of that plight through re- forms which are designed to provide the buying public with information and to protect it from misinformation will no doubt help to readjust the position of the consumer vis-A-vis at least those merchants who volun- tarily comply with the newly enacted statutes. On the other hand, little attention has been given to the question of sanctions to be em- ployed in those cases where voluntary compliance is not forthcoming.2 Recent studies of the law in action, including those laws affecting consumers, indicate that the ideal of the common law system that there be a remedy for every right often falls short of fulfillment.8 In light of these findings, it is imperative that the enactment of protective statutes be based not only upon a consideration of substantive problems but also with a concern for what will happen in cases of. noncompliance. This is the kind of concern that has led to this critical examination of the remedies and enforcement procedures provided by the new statutes. * Assistant Professor of Law, Boston University; LL.B., Columbia University, 1965. 1 See generally Hart, Can Federal Legislation Affecting Consumers' Economic Interests Be Enacted?, 64 Mich. L. Rev. 1255 (1966), for a play-by-play account of the struggle between consumer advocates and defenders of the status quo. See also Dole, Merchant and Consumer Protection: The Uniform Deceptive Trade Practices Act, 76 Yale L.J. 485 (1967), for an optimistic view of the remedial potential of a particular statute. Thus far, consumer cases arising under the Uniform Commercial Code have evoked the strongest characterization of the direction of the law. See, e.g., Eisen- berg, Let the Seller Beware: A New Concept Under the U.C.C., 72 Com. L.J. 349 (1967). 2 The subject is not devoid of consideration, but such attention has so far been limited to either brief discussions in a broader context, e.g., Note, Translating Sympathy for Deceived Consumers into Effective Programs for Protection, 114 U. Pa. L. Rev. 395, 424-36 (1966) (hereinafter cited as Effective Programs for Protection), or full analysis in a limited-context, e.g., Felsenfeld, Some Rumi- nations About Remedies in Consumer Credit Transactions, 8 B.C. Ind. & Com. L. Rev. 535 (1967). 3 See, e.g., Effective Programs for Protection, supra note 2.