The increasing concern with securing by law the right of consumers to a “fair” quantity of use value (that is, a reasonable duration of hypothetically realizable use value) from the products they purchase dovetailed with the regulations to standardize consumer products. Ensuring that consumers would get a fair exchange in the marketplace became a growing preoccupation for government regulators. According to business historian Richard Tedlow’s analysis, between 1914 and 1938 the Federal Trade Commission’s advertising regulation policy shifted from concern with competition to care for consumers—with care conceived of as making sure that consumers get a “fair deal.” The change in the FTC’s regulatory practice is significant in that fairness was construed as something more substantive than getting products at market rates, determined by free competition (Tedlow 1981). At the same time, by the middle of the century securing a fair deal for the consumer was not just a matter of abstract justice—ensuring that each consumer gets her “money’s worth” or that deals are “fair and square.” For consumer rights had, in addition, an important social and political dimension. In accounts of the origins of strict product liability, for example, legal scholars have noted that over the course of the twentieth century, judges increasingly took into consideration the social consequences of their legal decisions, rather than just considering matters of causation and fault and the relative interests of the plaintif and defendant in the case at hand (Hackney 1995). Social consequences often meant consequences for the interests of consumers, who were regarded as a vitally important social constituency.
Taking into account the social implications of legal decisions suggests the dominance of practical, social reasoning over formal rational concerns—or, in terms of philosophical ethics, of a broadly consequentialist position (one concerned with consequences, most usually for aggregate welfare) over a deontological stance (one concerned with rights and duties). However, the consequentialist perspective, in this case, was connected to an interpretation of the grounds on which the social order could be construed as being legitimate. If a practice was seen as being unfair, the social consequences might be destructive to the sociopolitical order, and the legal system took that into account. The duty of a right-thinking, socially minded, consequentialist judge was, therefore, to render decisions that would uphold the delicate moral equilibrium on which social order and political legitimacy depended.
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