Consumer Agents

In the twenty-first century economy, individuals need market help that they are not getting. The technology has long existed for a browser plug-in that would filter out toxic social media content or a virtual shopping assistant that would find and even purchase the best deals online without having to go to many different websites and product pages. Yet tech platforms have used lawsuits and data control to stifle such tools. The lack of digital helpers has potentially profound consequences. Social media use is linked to alarming increases in teenage depression and anxiety. Businesses’ ability to manipulate consumers into paying higher prices harms the economy and may significantly contribute to heightened levels of economic inequality not seen since the Gilded Age. The absence of sophisticated third-party digital tools reflects a gaping hole in the federal regulatory framework dating back almost a century. In the throes of the Great Depression, lawmakers enacted powerful regulatory statutes for the economy’s three most important individual actors—workers, investors, and consumers. That legislation, however, strengthened third-party help only for workers and investors—via labor unions and stockbrokers. In contrast, New Deal consumer protection legislation paid no attention to how third-party market actors might help consumers. This Article shows how that omission cemented the federal core of consumer law in a dyadic, buyer-seller framework inapt for the modern networked economy. It also describes a new polyadic consumer law regime emerging at the state and sectoral level. The new regime moves beyond directly policing the consumerbusiness dyad to also cultivating an ecosystem of helpful private market actors. Some laws have begun to mandate that dominant incumbent businesses give data access to third-party digital helpers. Others have conscripted the world’s largest companies, such as Facebook and Citibank, to protect consumers from other harmful actors. These laws have the potential to thrive in deregulatory times because they are conservative—in the sense that they primarily rely on markets rather than government actors. But they also have the potential to upend an industry’s power structure. At its most ambitious, the emerging framework amounts to a digital-age consumer industrial policy with the potential to construct more efficient, equitable, and ethical markets.