1 Caveat emptor first appeared in written works in 1534 in a legal discussion by Fitzherbert on horse trading. The sixteenth-century scholar wrote that “if he be tame and have ben rydden upon, then caveat emptor.” Quoted in Walton H. Hamilton, The Ancient Maxim Caveat Emptor, 40 Yale L.J. 1133, 1164 (1931). Hamilton cites another passage where the same writer “cautions the buyer to make sure of the goodness of this bargain in horse-flesh while yet there is time, if the horse be sold without a warranty, it is ‘at the other's peril, for his eyes and his taste ought to be his judges.’”Id. By the beginning of the seventeenth century, the maxim was well known, having twice been set down in treatises by Coke. The often-cited passage runs, “Note that by the civil law every man is bound to warrant the thing he selleth or conveyeth, albeit there be no express warranty, either in deed or in law; but the common law bindeth him not, for caveat emptor.” The phrase was discovered in the law reports in 1601 as an aside in a case concerning the ravishment of a wealthy ward, Moore v. Hussey, Hobart 94, 80 Eng. Rep. 243 (1601), but it is in 1603, in the case of Chandelor v. Lopus, Cro. Jac. 4, 79 Eng. Rep. 3 (1603), that the principle of the vendor's nonresponsibility for his wares was formulated in such an authoritative manner that it has been cited as the foundation for successive decisions over the centuries. In this case, the purchaser of what turned out to be a worthless bezoar stone sought to recover in an action against the seller for deceit. A bezoar stone was thought to have magical powers to be used as an antidote against poisons. “[T]he bare affirmation that it was a bezar-stone, without warranting it to be so, is no cause of action; and although he knew it to be no bezar stone, it is not material; for every one in selling his wares will affirm that his wares are good, or the horse that he sells sound, yet if he does not warrant them to be so, it is no cause of action.”Google Scholar

2 Morrow, Clarence J., Warranty of Quality: A Comparative Survey, 14 Tul. L. Rev. 327 (1940);Traylor, William H., Consumer Protection Against Sellers Misrepresentations, 20 Mercer L. Rev. 414 (1969).Google Scholar

3 Williston, Samue, Liability for Honest Misrepresentation, 24 Harv. L. Rev. 415 (1911); Hamilton, , supra note 1; Llewellyn, K. N., On Warranty of Quality, and Society, 36 Colum. L. Rev. 699 (1936); Samuel Williston, The Law Governing Sales of Goods at Common Law and Under the Uniform Sales Act (rev. ed. New York: Baker, Voorhis & Co., 1948); Rudolf, Callmann, False Advertising as a Competitive Tort, 48 Colum. L. Rev. 876 (1948); Translating Sympathy for Deceived Consumers into Effective Programs for Protection, 114 U. Pa. L. Rev. 395 (1966); Barber, Richard J., The Government and the Consumer, 64 Mich. L. Rev. 1203 (1966); Developments in the Law: Deceptive Advertising, 80 Harv. L. Rev. 1005 (1967); Comment: Consumer Legislation and the Poor, 76 Yale L.J. 745 (1967);Note, State Consumer Protection: A Proposal, 53 Iowa L. Rev. 710 (1967); Rice, David A., Remedies, Enforcement Procedures and the Duality of Consumer Transaction Problems, 48 B.U.L. Rev. 559 (1968); Waddell, Frederick Emerson, Consumer Action to Overrule Caveat Emptor: The Key to Quality, 4 New Eng. L. Rev. 89 (1969).Google Scholar

4 The late 1960s saw the third wave of active consumerism in American politics, following earlier campaigns during the Populist/Progessive and New Deal eras. What can be conceived of as constant pressure by consumers crystallized and solidified at certain periods to demand specific responses from government. Cf. Fred Block, The Ruling Class Does Not Rule: Notes on the Marxist Theory of the State, Socialist Revolution, May-June 1977, at 6; Mark V. Nadel, The Politics of Consumer Protection (Indianapolis: Bobbs-Merrill, 1971). The phrases, “public interest liberalism,”“interest group liberalisms” (Theodore J. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority (New York: W. W. Norton, 1969)), and “interest group representation” (Joel Handler, Social Movements and the Legal System: A Theory of Law Reform and Social Change (New York: Academic Press, 1979)) are used to describe this responsiveness of public policy to organized group demands. Groups pressure directly through political processes for specific legislative or administrative action and through the courts and legal system as a means of obtaining benefits from government. Cf. Karen Orren, Standing to Sue: Interest Group Conflict in the Federal Courts, 70 Am. Pol. Sci. Rev. 723 (1976).Google Scholar

5 David Caplovitz, The Poor Pay More (New York: Free Press, 1967).Google Scholar

6 Warren G. Magnuson & Jean Carper, The Dark Side of the Market Place: The Plight of the American Consumer (Englewood Cliffs, N.J.: Prentice-Hall, 1968).Google Scholar

7 Nader, Laura, An Analysis of Zapotec Law Cases, 3 Ethnology 404 (1964);Choices in Legal Procedure: Shia Moslem and Mexican Zapotec, 67 Am. Anthropologist 394 (1965);Taka and Juquila: A Comparison of Zapotec Social Organization, 48 Am. Archaeology & Ethnology 195 (1964); Styles of Court Procedure: To Make the Balance, in Laura Nader, ed., Law in Culture and Society (Chicago: Aldine Publishing Co., 1969); Powerlessness in Zapotec and U.S. Societies, in Anthropological Studies, Raymond D. Fogelson & Richard N. Adams, eds. (New York: Academic Press, 1977).Google Scholar

8 Laura Nader & Christopher Shugart, Old Solutions for Old Problems, in Nader, at 57.Google Scholar

9 See Ramsay, Iain D. C., Consumer Redress Mechanisms for Poor-Quality and Defective Products, 31 U. Toronto L.J. 117 (1981); Philip G. Schrag, Counsel for the Deceived: Case Studies in Consumer Fraud (New York: Pantheon Books, 1972); Steele, Eric H., The Dilemma of Consumer Fraud: Prosecute or Mediate, 61 A.B.A.J. 1230 (1975);id., Fraud, Dispute, and the Consumer: Responding to Consumer Complaints, 123 U. Pa. L. Rev. 1107 (1975);Whitford, William C. & Kimball, Spencer L., Why Process Consumer Complaints? A Case Study of the Office of the Commissioner of Insurance of Wisconsin, 1974 Wis. L. Rev. 639;Silbey, Susan S., Case Processing: Consumer Protection in an Attorney General's Office, 15 Law & Soc'y Rev. 849 (1981);id., The Consequences of Responsive Regulation in Keith Hawkins & John Thomas, eds., Enforcing Regulation (Boston: Kluwer Nijhoff, 1984); Silbey, Susan S. & Bitt-ner, Egon, The Availability of Law, 4 Law & Pol'y Q. 399 (1982).Google Scholar

10 David Serber, Resolution or Rhetoric: Managing Complaints in the California Development of Insurance, in Nader, at 317.Google Scholar

11 Marian Eaton, The Better Business Bureau: “The Voice of the People in the Marketplace”in Nader, at 223; Michael C. Mattice, Media in the Middle: A Study of the Mass Media Complaint Managers, in Nader, at 485.Google Scholar

12 Angela Karikas, Solving Problems in Philadelphia: An Ethnography of a Congressional District Office, in Nader, at 345.Google Scholar

13 Angela Karikas & Rena Rosenwasser, Department Store Complaint Management, in Nader, at 283; David I. Greenberg, Easy Terms, Hard Times: Complaint Handling in the Ghetto, in Nader, at 379.Google Scholar

14 David I. Greenberg & Thomas H. Stanton, Business Groups, Consumer Problems: The Contradiction of Trade Association Complaint Handling, in Nader, at 193.Google Scholar

15 Elaine Combs-Schilling, Grieving and Feuding: The Organizational Dilemma of a Labor Union, in Nader, at 461.Google Scholar

16 Gregory Wilson & Elizabeth Brydolf, Grass Roots Solutions: San Francisco Consumer Action, in Nader, at 417.Google Scholar

17 Compare Herbert Marcuse, One Dimensional Man: Studies in the Ideology of Advanced Industrial Society (Boston: Beacon Press, 1964); Robert Paul Wolff et al., The Critique of Pure Tolerance (Boston: Beacon Press, 1969).Google Scholar

18 Galanter, Marc, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc'y Rev. 95 (1974).Google Scholar

19 Compare Christopher D. Stone, Where the Law Ends: The Social Control of Corporate Behavior (New York: Harper & Row, 1975); id., Stalking the Wild Corporation, Working Papers for a New Society, Spring 1976, at 17.Google Scholar

20 Some consumer protection statutes now provide for the dissolution of business enterprises that are shown to be habitual violators of the law. Studies of enforcement practices suggest, however, that it is unlikely that the ultimate sanctions under the law will be applied. See Silbey, Case Processing, supra note 9; Silbey & Bittner, supra note 9; Silbey, Consequences of Responsive Regulation, supra note 9.Google Scholar

21 Bruce Alden Cox, Law and Conflict Management Among the Hopi (Ph.D. diss., University of California. Berkeley, 1968); Victor H. Li, Law Without Lawyers: A Comparative View of Law in China and the United States (Stanford, Cal.: Stanford Alumni Association, 1977).Google Scholar

22 Although the authors emphasize the discrepancy between theory and practice, the work is not a typical “gap” study. Many empirical studies examining “the ‘gap’ between the ideal of law and the actual practices” do not specify legal goals or ideals but view them as self-evident and nonproblematic. See Malcolm M. Feeley, The Concept of Laws in Social Science: A Critique and Notes on an Expanded View, 10 Law & Soc'y Rev. 497,497 (1976). Best and Nader both specifically delineate an ideal, albeit without much explication or justification, and without much attention to whether this ideal has any empirical referent in this or any other culture. The research is an examination of the gap between what is truly an “ideal” grievance-handling procedure and the behavior of real grievance-handling mechanisms. Thus the finding that reality is deficient is hardly surprising. See the discussion of idealized conceptions of law and legal systems in Christine B. Harrington, Delegalization Reform Movements: A Historical Analysis, in 1 Richard L. Abel, ed., The Politics of Informal Justice 35 (2 vols. New York: Academic Press, 1982, 1983). Further, the appropriate role of evaluative statements in the sociology of law is the subject of intense debate. See, e.g., Black, Donald J., Review of Law, Society, and Industrial Justice, by Philip Selznick, Philippe Nonet, & Howard M. Vollmer, 78 Am. J. Soc. 709 (1972);id., The Boundaries of Legal Sociology, 81 Yale L. J. 1086 (1972);Philippe Nonet, For Jurisprudential Sociology, 10 Law & Soc'y Rev. 525 (1976).Google Scholar

23 E.g., Oliver Wendell Holmes, Jr., The Common Law (Boston: Little, Brown & Co., 1945).Google Scholar

24 See, Harrington, supra note 22, and generally Abel, supra note 22.Google Scholar

25 Nader supports a counterpart movement to the early twentieth-century public health movement, but a “movement in the law … that would center on the individual's ensured access to legal institutions, on simplified law, on techniques of dispute avoidance, and, most important, on a scheme to prevent or get at the source of legal controversies” (at 49). But, the literature on the public health movement certainly does not state that the public health movement is responsible for the improvement in health and medical care in the United States. See Paul Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982); George Rosen, A History of Public Health (New York: MD Publications, 1958); Thomas McKeown, The Role of Medicine: Dream, Mirage or Nemesis (Oxford: Nuffield Provincial Hospitals Trust, 1976).Google Scholar

26 Karikas puts ‘real’ functions in quotation marks possibly suggesting a criticism of this criticism, but she does not elaborate on it (at 373).Google Scholar

27 Cf. David R. Mayhew, Congress: The Electoral Connection, (New Haven, Conn.: Yale University Press, 1974).Google Scholar

28 The clear implication of this line of reasoning is that an adequate complaint mechanism would eliminate all current and prospective grievances and that there would not be other or different grievances that would occupy political representatives under a structurally revised system.Google Scholar

29 Sally E. Merry, Toward a General Theory of Gossip and Scandal, in Donald J. Black, Toward a General Theory of Social Control (New York: Academic Press, 1984).Google Scholar

30 Cf. Silbey, Case Processing, supra note 9.Google Scholar

31 The committees operated by five general principles: (1) when evaluating whether a consumer has been treated unfairly, there is a strong bias toward the consumer's account of the situation; (2) committee assistance in resolving complaints is intended to supplement not substitute for the consumer's own efforts; (3) the committees are willing to use dramatic and unorthodox means of pressuring businesses to accede to consumer demands; (4) “consumer complaint assistance involves a series of judgments to be made collectively, not individually, though the individual consumer is the one who must finally decide whether to accept a particular settlement offered by the merchant”; and (5) “committees are seen by core members as having the potential for organizing consumers and involving them in a larger movement” (at 454).Google Scholar

32 Greshman M. Sykes, Criminology 254 (New York: Harcourt Brace Jovanovich 1978). Sykes is drawing upon the work of C. Wright Mills, The Professional Ideology of Social Pathologists, 49 Am. J. Soc. 165 (1943). Mills writes that “The notion of disorganization is quite often merely the absence of that type of organization associated with the stuff of primary-group communities having Christian and Jeffersonian legitimations.”Id. at 175. Quoting from T. V. Smith on Cooley, he goes on, “There is reflected here … what is highly common in our culture, an ideal of intimacy short of which we do not rest satisfied where other people are concerned. Social distance is a dire fate, achieved with difficulty and lamented as highly unideal. … In order to have social relations, we must nuzzle one another. … The aim to preserve rurally oriented values and stabilities is indicated by the implicit model which operates to detect urban disorganization; it is also shown by the stress upon community welfare. The community is taken as the major unit, and often it sets the scope of concern and problematization.”Id. It is possible that anthropologists may be biased to the rural by inclination or training; of course, Mills said that sociologists of ‘disorganization’ were biased by virtue of class, he did not discuss training in any detail.Google Scholar

33 “The very fact that people of all socioeconomic brackets write these letters [complaints about consumer transactions] is an indication that they are motivated to write by a sense of injustice rather than by pure and simple economic need” (at 8). In a footnote to this statement, Nader writes that “complaint letters seem to be written more often by those with less economic need” (at 8 n.3). Citing the research of Liefeld, Edgecombe, and Wolfe, she states that “[tlhe average complainer turned out to be middle-aged, well-educated, affluent, and in the managerial-professional occupational strata” (at 8, n.3). Compare Liefeld, J. P., Edgecombe, F. H. C., & Wolfe, Linda, Demographic Characteristics of Canadian Consumer Complainers, 9 J. Consumer Aff. 73 (1975).Google Scholar

34 Studs Terkel, quoted in the Boston Globe, Mar. 3, 1983, at 3.Google Scholar

35 Grant McConnell, Private Power and American Democracy (New York: Alfred A. Knopf, 1967); Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (Cambridge: Harvard University Press, 1965); Block, supra note 4.Google Scholar

36 Henri Pirenne, Economic and Social History of Medieval Europe 49–57 (New York: Harcourt, Brace & Co., 1925); Max Weber, The City, tram. & ed. Don Martindale & Gertrud Neuwirth (Glencoe, Ill.: Free Press, 1958).Google Scholar

37 Pirenne, supra note 36, at 51–52.Google Scholar

38 Id. at 51.Google Scholar

39 Weber, supra note 36, at 183.Google Scholar

40 Compare E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (London: Allen Lane, 1975).Google Scholar

41 E.g., the dispute-processing literature emphasizes alternatives to traditional courts, and adjudication emphasizes the value of comparative analyses: Danzig, Richard, Toward the Creation of a Complementary, Decentralized System of Criminal Justice, 26 Stan. L. Rev. 1 (1973);Abel, Richard L., A Comparative Theory of Dispute Institutions in Society, 8 Law & Soc'y Rev. 217 (1973);Felstiner, William L. F., Influences of Social Organization on Dispute Processing, 9 Law & Soc'y Rev. 63 (1974);Danzig, Richard & Lowy, Michael J., Everyday Disputes and Mediation in the United States: A Reply to Professor Felstiner, 9 Law & Soc'y Rev. 675 (1975);Fisher, Eric A., Community Courts: An Alternative to Conventional Criminal Adjudication, 24 Am. U.L. Rev. 1253 (1975).Google Scholar

42 Compare Jack Ladinsky & Charles Susmilch, Conceptual and Operational Issues in Measuring Consumer Disputing Behavior, Disputes Processing Research Program Working Paper 1981–83, (Madison: University of Wisconsin Law School); Felstiner, William L. F., Abel, Richard L. & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …, 15 Law & Soc'y Rev. 31 (198081); see vol. 15, issue nos. 3, 4 of Law and Society Review generally.Google Scholar

43 There is some evidence that suggests that higher cost items are more frequently subjects of complaint, but the average loss is still relatively low. E.g., Best, at 109–10.Google Scholar

44 The 300 letters were “sampled, at random, 100 letters each in the categories of food, medical and appliance problems” (at 115) from the 5,000 in Nader's collection. “Among the letters available for study were many dealing with subjects other than complaints about products and services; we focused on product complaints letters however as the most directly linked to an understanding of the remedy system” (at 115 n.6).Google Scholar

45 Best, Arthur & Andreasen, Alan R., Consumer Response to Unsatisfactory Purchases: A Survey of Perceiving Defects, Voicing Complaints, and Obtaining Redress, 11 Law & Soc'y Rev. 701 (1977); see also Alan R. Andreasen & Arthur Best, Consumers Complain–-Does Business Respond? Harv. Bus. Rev., July-Aug. 1977, at 93.Google Scholar

46 “The data indicate that the third-party complaint-handling mechanisms, as they now operate, disproportionately serve the better educated, better informed, and politically more liberal households.” (Best at 127). Consumers are more likely to voice complaints about infrequently than frequently purchased products, about higher than lower cost products, and about expensive rather than inexpensive problems. The alternative to complaint is to exit; this is easier and more effective for repeated frequent purchases, which tend to be less expensive. (Best at 125).Google Scholar

47 There is a confusion in the Best work between consumer behavior, that is, complaints and grievances due to experience of faulty products or misrepresentation and a generalized desire for more efficient and effective products. These represent two different types of consumer problems and may derive from very different economic, legal, and structural sources. The author conflates the two and thus weakens his own argument. Because Best speaks of disadvantage consumers are not aware of, evidence of complaining or non-complaining is not relevant and cannot possibly substantiate Best's claim that there is a vast volume of unremedied consumer grievances.Google Scholar

48 Mary V. McGuire & Herbert Edelhertz, Consumer Abuse of Older Americans: Victimization and Remedial Action in Two Metropolitan Areas, in Gilbert Geis & Ezra Stotland, eds., White-collar Crime: Theory and Research 266, 281 (Beverly Hills, Cal.: Sage Publications, 1980).Google Scholar

49 Ladinsky & Susmilch, supra note 42. Best found that only 39.7% of consumers who perceived a problem took any kind of action; it is possible that increased public attention to consumer problems has changed consumer behavior and that discrepant findings are merely the result of patterns evolving over time. Best conducted his survey in 1975, McGuire and Edelhertz in 1977, and Ladinsky and Susmilch in 1980–81. In my research in the Massachusetts Attorney General's Office of Consumer Protection I found that the volume of consumer complaints continually increased with time. Silbey, Case Processing, supra note 9.Google Scholar

50 Ramsay, supra note 9, at 127.Google Scholar

51 Ignoring Complaints Can Hurt a Business, Milwaukee J., June 14, 1983, at 1Google Scholar

52 Supra note 48.Google Scholar

53 Whitford & Kimball, supra at note 9.Google Scholar

54 Albert Hirschmann, Exit, Voice and Loyalty: Response to Decline in Firms, Organization and States (Cambridge: Harvard University Press, 1970).Google Scholar

55 Suzann R. Thomas Buckle & Leonard G. Buckle, “Doing Unto Others,”“Bringing Justice Home” delivered at the Law and Society Association annual meeting Madison, Wis. June 1980, and “Self-Help Justice,” delivered at the Law and Society Association annual meeting, Amherst, Mass., June 1981.Google Scholar

56 Cf. Donald Black, Crime as Social Control, 48 Am. Soc. Rev. 34 (1983).CrossRefGoogle Scholar

57 To differentiate such control from ordinary interaction, I assume that an adequate definition would take account of whether social control is necessarily intentional, who and what is subject to it, who exercises it and by what means, and its goals and consequences (Jack P. Gibbs, Norms, Deviance, and Social Control: Conceptual Matters (New York: Elsevier, 1981)). For my purposes, social control is not ubiquitous and synonymous with all social interaction, it covers only the ways in which we extract conformity to behavioral patterns: “the processes and procedures which regulate behavior, in that they exert pressure on persons and groups to conform.” Ronald M. Berndt, Excess v. Restraint 11 (Chicago: University of Chicago Press, 1962). Cf. Hollingshead, August B., The Concept of Social Control, 6 Am. Soc. Rev. 217 (1941); Paul H. Landis, Social Control: Social Organization and Disorganization in Process 7 (rev. ed. Philadelphia: Lippincott, 1956); Edward Alsworth Ross, Social Control: A Survey of the Foundations of Order, (1901 reprint; Cleveland: Press of Case Western Reserve, 1969). Ross was particularly concerned with individual adherence to social rules, and the theme of his work was to confirm that men “in their collective capacity” do “find a means of guiding the will or conscience of the individual member of society” (at 59). For Ross, social control meant inducing conformity and deterring nonconfomity on the part of the individual (id. at 395).Google Scholar

58 Best offers at least eight reasons why consumers do not routinely complain about unsatisfactory products and services: the difficulty of determining facts, the difficulty of defining rights, the fact that problems change over time, the costs of complaining, intimidation and retaliation, confusion, lack of information and power, and lack of access to law.Google Scholar

59 Susan S. Silbey, Consumer Justice: The Massachusetts Attorney General's Office of Consumer Protection 1970–1974, at 288 (Ph.D. diss. University of Chicago, 1978).Google Scholar

60 Of course, it is not a matter of trust but of accountability, which can be assured through written agreements; contract and trust are opposite activities. Macaulay, Stewart, Non-contractual Relations in Business: A Preliminary Study, 28 Am. SOC. Rev. 55 (1963).Google Scholar

61 It should be noted that increasing use of standard form written agreements further undermines and frustrates the consumer's opportunity to incorporate interests and wants into market transactions.Google Scholar

62 “One of the bargains men make with one another in order to maintain their sanity is to share an illusion that they are safe even when the physical evidence in the world around them does not seem to warrant that conclusion.” Kai T. Erikson, Everything in Its Path: Destruction of Community in the Buffalo Creek Flood 234 (New York: Simon & Schuster, 1976). See generally the section The Illusion of Safety, at 234.Google Scholar