DIGITAL SYNAPSE EXCHANGE · LAW

United States law as a case study — companion to the French study

ABSTRACT

In a companion study I showed that French law contains every component of a working market police and lacks only the moment at which they may be used. The same demonstration holds in the United States, on an entirely different legal base — and that is the point of repeating it. Deception at the point of sale is a crime in every state; the federal wire fraud statute is among the broadest instruments in American law; nearly every state gives consumers a private right of action under its own little FTC Act; a national fraud register receives millions of reports a year. And still the buyer standing in front of a false statement is told his matter is civil. The common law once did better: the piepowder court decided market disputes on the spot, on the day, and it was granted in the same instrument as the franchise to hold the fair. It was abolished — by statute, in 1971.

Introduction

I write as a French lawyer, from a French purchase I lived. I had little money; few vehicles were within reach; I saw traces of repainting on the bodywork and asked the seller, who answered as sellers answer. Lifting the doubt would have cost a substantial fraction of the price of the car, so I trusted him and bought. Months later a mechanic, on an unrelated repair, told me the vehicle had been seriously crashed. Two or three months after that I went back: the shop was closed and the seller gone. I filed no complaint, because there was no longer anyone to file it against — and I had never called anyone at the decisive moment, for the simple reason that no such call exists.

What follows is not a translation of that study but its control experiment. If the same behaviour appears under a different legal base, the cause is not the base. It does appear — and the American version is the more instructive, because American law arms the consumer far better than French law does (private rights of action, statutory damages, fee-shifting, contingency counsel, class treatment) and the outcome at the moment of the lie is identical. The buyer standing in front of the false odometer gets the same sentence in a different language: that’s a civil matter, sir.

I. The Two Calls

The first call is the shopkeeper’s. Goods have been taken from his shelves. Retail theft is a crime in every state; officers attend, secure the scene, take statements, review the footage. Several legislatures have gone further and built dedicated organized-retail-crime task forces, with prosecutors assigned and databases shared across jurisdictions.¹ His evidence is gathered by the public force and paid for by the public purse.

The second call has no recipient. The buyer facing a seller who is lying to him is facing a crime: theft by deception, or obtaining property by false pretenses, is codified in every American jurisdiction, and where an interstate wire is used the federal wire fraud statute reaches it as well — a statute punishing any scheme to obtain money by false pretenses, and one of the broadest instruments in the federal code.² On paper the second offence is the graver. In fact it produces a sentence about civil matters and an invitation to sue.

And the buyer who tries to make his own record may find the record itself unlawful. In the all-party-consent states, recording the seller’s words without his agreement is a criminal offence.³ The one form of evidence available to the weaker party, at the only moment it exists, is in a substantial part of the country prohibited to him. The merchant’s security camera is lawful; the buyer’s telephone is not.

The cost of proof does the rest, and it does it regressively. Retaining an independent inspection is trivial against a large budget and prohibitive against a small one, so the buyer with means buys informed and the buyer without means trusts. The law then answers the second one with an injunction to be diligent — that is, to buy a certainty he cannot afford. American procedure does not protect the merchant more than the consumer; it protects the registered more than the unregistered. The merchant has premises, a licence, a tax identification. The buyer has a claim, and a claim has no address — which is why a dealer who closes his lot takes the remedy with him.

II. The Institution Turned Inside Out

The objection writes itself: public verification, on demand, at the point of sale, has never existed and could not exist. In the common law the objection is not merely wrong; it is anachronistic by roughly eight centuries.

The court of piepowder — pieds poudrés, dusty feet — sat at English fairs and markets from the medieval period onward. Its jurisdiction covered disputes arising in the market, including disputes between merchants and buyers, and its business was to decide them summarily, on the spot, while the parties and the goods were still there. Blackstone called it the lowest and the most expeditious court known to the law of England.⁴ Decisive for my argument is how it came into being: when the Crown granted a town the franchise to hold a fair, it granted with it the right to hold the court. The right of place and the court issued from the same instrument. The levy bought the justice.

Verification proper stood alongside it — the assize of bread and ale, and the standardisation of measures running back to Magna Carta — and that branch never died. Every American State maintains weights and measures officials who verify and seal scales, meters and fuel pumps under uniform national standards, before any buyer has complained.⁵ The sticker on the gas pump is a public constatation of the seller’s utterance, made in advance, at the seller’s expense. Nobody argues that it presumes the station guilty.

So the institution did not vanish for want of a model. The piepowder courts were formally abolished — not in the mists of legal history, but by statute, in 1971.⁶ What survived is the levy: business licences, sales tax permits, seller registrations, marketplace commissions — every one a right of place under another name, and every one still collected. Only the constatation it once bought has gone.

III. The Spare Parts