THE X IN MY NAME: The poor signature of my illiterate and peasant self giving away all rights in a deceiving contract for life¹

INTRODUCTION

American law has little patience for immigrants who arrive unable to understand English.² These immigrants face, at best, spotty accommodation of their language barrier: translation in the criminal courtroom,³ the voting booth,⁴ and the classroom⁵ is usually assured, but availability elsewhere varies. As consumers, immigrants unable to understand English are left largely to the morals of the marketplace. Existing consumer protection regulation too often assumes that consumers are proficient in English or, if not, are accompanied in their transactions by an interpreter. Sadly, this gap in protection has made some Latinos/as⁶ and other language minorities the victims of choice for unscrupulous merchants who prey on their inability to understand the terms of the bargain.⁷

Non-English-speaking consumers deserve the same protection as other consumers, and thus, this Article advocates guarantees for their ability to strike informed bargains. To safeguard consumers most vulnerable to unfair and deceptive trade practices, this Article contemplates a comprehensive strategy of reform that involves the legislatures, administrative agencies, and courts, as well as nonprofit organizations that advocate for language minorities and merchants themselves. Part I examines the growth in numbers of monolingual Latino/a consumers and documents their experience in the American marketplace. Part I also explores the shortcomings of existing reme-dies under the common law and consumer protection regulation when applied to non-English-speaking consumers. Part II details potential obstacles to establishing effective consumer protection for Latinos/as and other language minorities. Most significant are the English language movement's repeated calls for a "sink or swim" standard for language minorities in settings ranging from the classroom to the voting booth. The anti-immigrant climate that spawned California's Proposition 187 may also impede reform efforts. Part III proposes reforms to common law remedies and to statutory consumer protection to place more responsibility on businesses when they deal with language minority consumers. Part III also provides a model of self-regulation for merchants who desire to accommodate these consumers. Finally, the Article revisits President Kennedy's consumer "bill of rights" from the point of view of Latino consumers.

Due to the large number of monolingual Spanish-speaking Latinos/as in the American marketplace, this Article focuses on these consumers. Much of the analysis and proposed reforms, however, extend to other language minority groups.⁸

I. MONOLINGUAL LATINO/A CONSUMERS: GROWTH IN NUMBERS AND ABUSES

A. Latino/a Demographics and Language Abilities

America's immigrant population constitutes the largest "of any society in world history."⁹ Immigrants from Mexico represent the largest single group, comprising over twenty-seven percent of all immigrants.¹⁰ Immigration from Mexico has itself been described as constituting "the greatest migration of people in the history of humanity."¹¹ When coupled with Latino/a immigrants from countries other than Mexico and with Latinos/as born here, the total Latino/a population in America as reported by 1994 census data is twenty-seven million.¹² The actual number today is even larger; not only has the Latino/a population grown since 1994, but census figures do not accurately reflect the substantial undocumented Latino/a immigrant population or the Latino/a population generally.¹³

A substantial number of Latinos/as in America cannot speak English well or at all. Although Latinos/as learn English as fast or faster than other past immigrant groups,¹⁴ the traditional pattern of English language acquisition extends to three generations: the first generation acquires some English ability but is mostly monolingual, the second generation is bilingual, and the third generation prefers English.¹⁵ Several studies demonstrate that Latino/a English lan-guage acquisition is consistent with this model.¹⁶ One study determined that of those Latino/a immigrants born and raised in Mexico, eighty-four percent speak mostly Spanish in their American homes. Eighty-four percent of their grandchildren born in America, however, speak mostly English at home, while only four percent speak mostly Spanish.¹⁷

Despite the normal English acquisition pattern, continued Latino/a immigration assures the presence in America's marketplace of millions of monolingual Spanish-speaking consumers (the Spanish-Only Consumer). As counted by the 1990 census, over seventeen million Americans speak Spanish at home.¹⁸ If these Spanish-speaking Americans were gathered in a single state, it would be the third most populous, after California and New York.¹⁹ Although slightly over half of these seventeen million Spanish-speakers reported that they can speak English very well,²⁰ 1,460,145 reported that they were completely unable to speak English, and 3,040,828 reported that they do speak English, but "not well."²¹ These figures surely overstate the actual proficiency because those unable to speak English are often uncounted and those participating in the census are likely to exaggerate their language skills.²²

Although not measured by the census, the number of Latinos/as in America unable to read English probably exceeds that of Latinos/as unable to speak it.²³ One estimate is that half of the Latino/a adults in America are functionally illiterate in English.²⁴ Moreover, many monolingual Spanish-speaking Latinos/as in America cannot read Spanish.²⁵ This circumstance is explained by illiteracy estimates in Mexico that range from seven²⁶ to twelve²⁷ to over twenty-five percent of the population.²⁸ These illiteracy statistics in turn reflect studies that estimate the average number of years of formal education in Mexico as anywhere from four²⁹ to less than seven.³⁰

B. Language Fraud and English-Only in the Marketplace

The Spanish-Only Consumer has become a victim of choice for unscrupulous merchants in America. Current frauds cover the full spectrum of the consumer marketplace: from telemarketing to home solicitation sales to the car lot. For example, in 1994, a spokesperson for the National Council of La Raza explained at a press conference that Latinos/as are targeted for telemarketing fraud because they may lack English language ability.³¹ In California, a satellite dish vendor marketing door-to-door was accused of targeting Spanish-speaking homeowners to take advantage of the language barrier.³² Other California operators targeted residents of East Los Angeles for home equity loan scams under which Latino/a homeowners unknowingly conveyed full title to their homes to the loan brokers.³³ In 1993, an Oregon car dealer was accused of using Spanish-speaking employees to entice immigrant customers to sign contracts written in English that sold them unwanted extras such as extended warranties and credit insurance.³⁴ Another Oregon car dealer misrepresented to a Spanish-speaking customer that an "as-is" warranty gave the customer a fifty-day period to rescind the purchase.³⁵ Other reported market frauds include an Arizona scam directed at Latinos/as who did not understand the process of car insurance and registration,³⁶ a New Jersey real estate scam that targeted recent immigrants with limited English skills,³⁷ and exploitation by certain notary publics of Spanish speakers' belief that they are lawyers.³⁸

Besides exploiting the language barrier, unscrupulous merchants exploit Latino/a culture and the current anti-immigrant political climate. Take the example of a Mexican immigrant family targeted by a water purification company selling door-to-door.³⁹ Preying on what one observer described as the Mexican people's "national, almost religious quest" for pure water,⁴⁰ the company sold the family an overpriced, defective purification system for $5000. A mortgage secured the purchase price that accrues interest at thirty-six percent per annum.⁴¹ After paying $6000 of monthly installments toward the purchase price, the family discovered that they still had to pay several thousand dollars or face losing their home. When they complained to the seller that they were unaware of the mortgage and the high interest rate, the seller responded that if they complained to any government agency or appeared in court to contest a foreclosure their immigration status would be investigated.⁴² The climate created by California's Proposition 187⁴³ may cause any Latino/a, whether documented or not, to avoid dealing with the government for fear of harassment or abuse. Abusive market practices thrive in this anti-immigrant climate.

While examples mount of affirmative frauds practiced on Spanish-Only Consumers, these consumers also fall victim to less publicized but more frequent abuse. Although most merchants will not affirma-tively misrepresent their deals to the Spanish-Only Consumer, many merchants will transact business with them partially or entirely in English. These English language bargains can cause havoc because here, too, the consumer does not understand the true nature of the obligation incurred. In the analogous area of products liability, commentators have begun to debate how to protect the Spanish-Only Consumer and other language minorities who purchase products ignorant of their risks.⁴⁴ One purpose of this Article is to extend this debate to consumer transactions generally. Before proposing specific protections for language minority consumers, however, this Article reviews the shortcomings of existing consumer protection as applied to the non-English speaker.

C. Existing Consumer Protection Against Language Fraud and English-Only in the Marketplace

1. The duty to read doctrine

Applying existing law to the following bargain models illustrates the limited protection it provides to language minority consumers. Each model below involves a home improvement sale/loan transaction between a Spanish-Only Consumer and a home siding merchant.

a. The fraud bargain

In this model, the Spanish-Only Consumer signs a secured promissory note written in English that calls for interest at thirty-six percent per annum. The merchant/lender represents orally in Spanish that the interest rate is only ten percent.⁴⁵

b. The unfair bargain

The Spanish-Only Consumer signs a secured promissory note written in English that provides for interest at a rate that substantially exceeds a fair rate of return.⁴⁶ The merchant, however, does not make any oral statements about the interest rate.

c. The unintended bargain

Again, the merchant does not orally misrepresent the interest rate. Here, the secured promissory note written in English provides a rate of interest that, although facially high, is justified in relation to the risks of the transaction (e.g., absence of equity in the collateral, poor credit record). Upon her later discovery of the rate agreed to, however, the Spanish-Only Consumer objects that she would not have agreed to purchase the home improvements on such terms.⁴⁷

Relevant to each of these bargain models, the common law "duty to read" doctrine determines the obligations of a party who signs a written contract without reading its terms. That party is "conclusively presumed to know its contents and to assent to them, and there can be no evidence for the jury as to . . . [her subjective] understanding of its terms."⁴⁸ The duty to read extends to those persons unable to read the language of the contract:

It is well settled that where a person cannot read the language in which a contract is written, it is ordinarily as much his duty to procure someone to read it to him as it would be to read the agreement before signing, were he able to do so. Failure of a party to obtain a reading and explanation is ordinarily negligence which will estop the party from avoiding the contract on the ground that the party was ignorant of the contract's provisions.⁴⁹

Thus, as applied to the Spanish-Only Consumer, the duty to read functions as a duty to obtain a translation. What appears to be an unbending rule against language minorities, however, is tempered somewhat by three exceptions, one fairly well established, one developing, and one that results from legislative intervention.

2. The duty to readthe fraud exception

Many courts recognize an exception to the duty to read when the other party has misrepresented the terms of the written contract.⁵⁰ In these circumstances, the victim may avoid the unread contract or, as recognized by the Restatement (Second) of Contracts, may claim a contract on the terms as represented.⁵¹ Some courts, however, deny relief on the grounds that the defrauded party had no right to rely on an oral statement that the explicit language of the written contract contradicts.⁵² Commentators criticize this result for allowing mere negligence to excuse deceit.⁵³ In any event, it is not clear if this controversial outcome extends to parties unable to understand the language of the written contract.

As applied to the Spanish-Only Consumer, the fraud exception falls short of addressing the range of potential marketplace abuses. In the case of the Fraud Bargain where a written term is orally misrepresented, courts that recognize the fraud exception will either rescind the contract or enforce the term as it was represented.⁵⁴ Some courts might conclude, however, that the Spanish-Only Consumer's negligence in failing to obtain a translation of the written contract precludes any remedy for the merchant's deceit.⁵⁵

The Unfair Bargain model assumes that the merchant has not misrepresented the unfair term in the written contract. As such, even when otherwise recognized, the fraud exception is not available unless the court imposes an affirmative duty on the merchant to disclose the unfair term. Merchants have no general duty to disclose Unfair Bargains, although exceptions have emerged that may ultimately overcome the merchant's right to remain silent.⁵⁶ Thus far, courts have not established an exception specifically to protect a consumer who agrees to an unfair bargain because she was unable to understand the language of the written contract. The doctrine of unconscionability, however, may provide an analogous duty to disclose unfair terms to those consumers the merchant knows (or perhaps has reason to know) are unable to protect themselves. Its usual remedies are inadequate to deter unscrupulous merchants,⁵⁷ and thus, unconscionability is no substitute for the development in the law of deceit of a comprehensive duty to disclose that protects Spanish-Only victims of Unfair Bargains.⁵⁸

Finally, the fraud exception may not protect the victim of the Unintended Bargain who has agreed to a bargain that, although objectively fair, is one that the consumer would not have agreed to had she understood the contract. Here, there has been no affirmative misrepresentation. Moreover, imposing a duty to disclose (translate) actionable as deceit is inappropriate, at least when a merchant has no reason to know that the objectively desirable deal is undesirable to the Spanish-Only Consumer.

3. The duty to readthe developing unconscionability exception

For centuries, equity courts have denied specific performance of land conveyances and certain other contracts when the bargain sought to be enforced is unconscionable.⁵⁹ Since section 2-302 of the Uniform Commercial Code (UCC) codified the unconscionability doctrine for credit sales of goods,⁶⁰ that doctrine has become part of the general common law of contracts.⁶¹ Although courts have not yet articulated a predictable formula for defining unconscionability, the developing standard holds promise for the Spanish-Only Consumer. Many courts have adopted the distinction the late Professor Arthur Leff coined between procedural unfairness or "bargaining naughtiness" in contract formation and substantive unfairness in a contract's terms.⁶² In holding a contract or contractual term unconscionable, these courts usually require some showing of both procedural and substantive unfairness.⁶³ For example, in its classic common law articulation, unconscionability has involved "an absence of meaningful choice on the part of one of the parties [procedural unfairness] together with contract terms which are unreasonably favorable to the other party [substantive unfairness]."⁶⁴

So articulated, the unconscionability doctrine should encompass the Spanish-Only victim of an Unfair Bargain and create another exception to the duty to read doctrine.⁶⁵ In this bargain model, the consumer can point to both the bargain's substantive unfairness and to the "bargaining naughtiness" that occurred when the merchant took advantage of the consumer's inability to understand the English language contract, at least when the merchant knew or had reason to know of that inability. The few cases that have applied the unconscionability doctrine to the Spanish-Only Consumer support this analysis. For example, after negotiations in Spanish, a Latino consumer in Frostifresh Corp. v. Reynos⁶⁶ signed a contract written in English to purchase an overpriced refrigerator.⁶⁷ Although commentators sometimes cite this New York case as authorizing courts to declare a contract unconscionable on substantive unfairness alone,⁶⁸ it appears that the case's outcome was influenced by the Spanish-Only Consumer's inability to understand the price of the written bargain.⁶⁹ In Albert Merrill School v. Godoy,⁷⁰ another New York court agreed that a consumer's inability to understand English is relevant in determining whether the consumer exercised a meaningful choice.⁷¹ Earlier, the same New York court applied the unconscionability provision in section 2-302 of the UCC to strike down a contract written in English in which a Spanish-Only Consumer agreed to waive warranties in the purchase of an automobile.⁷²

Although most of the reported decisions applying unconscionability to protect Spanish-Only Consumers were issued by lower courts during the 1960s and 1970s, a 1988 decision by the Eighth Circuit Court of Appeals supports application of the doctrine to the victim of an Unfair Bargain. In Besta v. Beneficial Loan Co.,⁷³ the court concluded that it was unconscionable for a lender to extend credit under a six-year loan plan without informing the borrower that the monthly payments and total payment amount under an alternative three-year plan were lower.⁷⁴ Rather than deciding the case on the substantive unfairness of the six-year plan alone, the court looked to the unfair surprise that resulted from the lender's failure to disclose the more advantageous plan to a consumer the lender knew was unaware of the better deal.⁷⁵ Although commentators have predicted that the Besta line of cases, holding lenders liable to borrowers, will be a "short-lived aberration in lender liability law,"⁷⁶ Besta, in fact, falls squarely within the mainstream of unconscionability cases that insist on a showing of both procedural and substantive unfairness. The Spanish-Only victim of an Unfair Bargain might rely on Besta to argue that a lender must disclose (translate) any disadvantageous terms that the lender knows the consumer does not understand because of the language barrier.⁷⁷

Although the unconscionability doctrine should extend to victims of an Unfair Bargain, its shortcomings limit its effectiveness as a consumer protection tool for Latinos/as and other language minorities. For example, remedies for unconscionable conduct often inadequately deter such conduct. Courts have not only declined to award tort remedies, such as punitive damages, to victims of unconscionable contracts, but have also refused to award restitution and other affirmative damages.⁷⁸ For example, when a merchant's price is unconscionably excessive, at most, courts limit the merchant's bargain to the fair price it should have charged and will not require the merchant to return any overpayment.⁷⁹ This sanction inadequately deters merchants from imposing substantively unfair terms on Spanish-Only Consumers.

Another concern is that the unconscionability doctrine might require substantive unfairness and, therefore, may not reach the victim of an Unintended Bargain. As the Official Comments to section 2-302 of the UCC articulate, the basic test for unconscionability is whether "the clauses involved are so one-sided as to be unconscionable."⁸⁰ Some commentators read decisions under section 2-302 to mean that when grossly unfair, contract terms can be unconscionable without proof of any procedural unfairness.⁸¹ Unconscionability under the common law and section 2-302, however, does not yet grant relief for procedural unfairness standing alone that lacks a separate and established basis for relief,⁸² as when there is duress or fraud.

4. The duty to readthe legislative exception

Federal or state law that requires the delivery of a translated consumer contract serves as a legislative exception to the duty to read doctrine. The potential of this legislative exception remains unrealized. Neither federal nor state law imposes a comprehensive duty on merchants to translate consumer contracts for the benefit of language minorities. Instead, most existing statutory and administrative requirements only target consumer transactions with the most notorious records of abuse. For example, federal law singles out only door-to-door and used car sales. As required by a Federal Trade Commission (FTC) rule, door-to-door sellers must provide buyers with a contract written in the same language as that used principally in the oral sales presentation.⁸³ Under another FTC rule, sellers of used motor vehicles who "conduct a sale in Spanish" must deliver prescribed warranty information, according to a specific format, in Spanish.⁸⁴ State law has singled out such problematic transactions as "rent-to-own" or lease-purchase agreements⁸⁵ and social referral (dating) service contracts by imposing translation requirements.⁸⁶

This selective approach provides only limited protection. Federal consumer disclosure statutes of general application usually fail to require translations for language minorities. For example, the Truth in Lending Act,⁸⁷ the Truth in Savings Act,⁸⁸ the Real Estate Settlement Procedures Act,⁸⁹ the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act,⁹⁰ and the Interstate Land Sales Full Disclosure Act,⁹¹ require disclosure of certain information to aid consumers in making an informed choice, but none of the statutes compels translation of the required disclosures for language minorities.⁹² For example, under the Truth in Lending Act, a lender has no obligation to supply interest rate disclosures to a Spanish-Only Consumer in Spanish.⁹³ Moreover, even when federal law requires translated disclosures, it fails to provide a private right of action to enforce these requirements.⁹⁴

State law overcomes some of the inadequacies of federal law. First, at least one state requires certain lenders to translate their Truth in Lending disclosures into Spanish.⁹⁵ Also, many states have enacted counterparts to the federal door-to-door rule that allow for private enforcement to ensure that merchants write home solicitation sales contracts in the same language they used in the oral sales presentation.⁹⁶ Alternatively, state "baby" or "little" FTC acts may authorize a private action for violations of FTC regulations, such as those for door-to-door and used car sales.⁹⁷ Finally, a few state statutes impose a translation requirement that covers more than isolated consumer transactions. For example, California law requires written translations of certain loan contracts, residential leases, and other consumer contracts that are negotiated primarily in Spanish.⁹⁸ Under an Illinois statute, it is an unlawful practice to fail to provide a translated written contract, if the retail transaction is negotiated in a language other than English.⁹⁹ Finally, a Florida regulation declares it an unfair or deceptive trade practice to fail to provide a translation of a contract negotiated principally in a language other than English.¹⁰⁰

Despite these provisions, state law does not fully overcome the inadequacies of federal law. Several states, other than California, Florida, and Illinois, with large and growing language minority populations do not have comprehensive consumer translation requirements. As the next section discusses, the English language movement threatens both to hinder the enactment of translation laws in these states and to undermine the few existing translation laws. Moreover, design flaws in existing state translation laws limit their effectiveness. These flaws are also discussed below.¹⁰¹

II. OBSTACLES AND CONSIDERATIONS IN ENSURING CONSUMER PROTECTION FOR LANGUAGE MINORITIES

A. Impact of English Language Movement on Consumer Protection Regulation

Roots of the Official English and English-Only movements¹⁰² are apparent in xenophobic hostility during the early 1900s toward immigrants from southern and eastern Europe.¹⁰³ For example, Nebraska's 1920 constitutional amendment declaring English the official state language¹⁰⁴ grew out of anti-German sentiment.¹⁰⁵ By 1923, thirty-four states had laws that declared English the language of school instruction.¹⁰⁶ Since then, most states have enacted laws that require the use of English in specific situations, such as in testing for occupational licenses.¹⁰⁷

During the 1980s, resurgent xenophobia, directed this time toward Latino/a and Asian immigrants, revived interest in and support for comprehensive English language laws.¹⁰⁸ Organizations, such as U.S. English, formed to urge states and Congress to enact Official English and English-Only laws¹⁰⁹ that encompass all aspects of government. Arizona, Arkansas, California, Colorado, Florida, Georgia, Indiana, Kentucky, Mississippi, North Carolina, North Dakota, South Carolina, Tennessee, and Virginia adopted English language laws by legislation or initiative during the 1980s.¹¹⁰ In 1990, Alabama joined these states.¹¹¹

By the end of the 1980s, the language movement had begun to lose momentum. In 1989, legislatures in New Mexico, Oregon, and Washington adopted resolutions that embraced multilingualism.¹¹² Rhode Island's legislature did so in 1992.¹¹³ The success of California's Proposition 187, however, has revived the English language campaign. Although none of the many Official English or English-Only bills introduced in Congress since 1981¹¹⁴ progressed beyond a committee hearing, the Language of Government Act of 1995 stands a real chance of passage.¹¹⁵ In 1995, Connecticut, Georgia, Iowa, Maryland, Massachusetts, Montana, New Hampshire, New York, Ohio, Pennsylvania, South Dakota, Washington, West Virginia, and Wisconsin considered Official English or English-Only bills.¹¹⁶ Montana, New Hampshire, and South Dakota enacted language legislation in 1995, and Wyoming joined them in 1996, becoming the first states to do so since 1990.¹¹⁷ In the first two months of 1996, English language laws were introduced in Kansas, Missouri, New Jersey, Oklahoma, and Rhode Island, as well as in many of the states that considered but failed to adopt these laws in 1995.¹¹⁸

The legality of these language laws and their impact on consumer protection remain unresolved. Resolution of these issues may depend on the precise wording of the particular language law. At one extreme, Arizona's "English-Only" constitutional provision states that all political subdivisions in Arizona must "act in English and in no other language" except in certain narrow circumstances such as to protect health and safety.¹¹⁹ Shortly after the provision's adoption by initiative in 1988, Arizona's Attorney General construed this provision narrowly to conclude that it does not "interfere with the fair and effective delivery of governmental services in languages other than English, or otherwise affect governmental operations so as to unreasonably disadvantage non-English speakers."¹²⁰ A subsequent Attorney General opinion concluded that Arizona's new constitutional provision did not prohibit the production of Spanish public service announcements by the Commission on the Arizona Environment.¹²¹ In 1995, however, the Ninth Circuit rejected this construction as incompatible with the provision's plain language, which prohibited state employees from using languages other than English.¹²² The Ninth Circuit held that the law, as written, is overbroad and violates the First Amendment of the United States Constitution.¹²³

Of lesser effect are laws that simply declare English the "official" state language.¹²⁴ As one commentator observed, these "Official English" laws "appear on their face to have little more [legal] significance than a state's choice of an official motto or the official state bird."¹²⁵ Courts will likely adopt this narrow interpretation.¹²⁶ For example, in concluding that no Illinois law prohibited city election officials from giving voter assistance information in Spanish, the Seventh Circuit observed that the Illinois Official English statute appears with those naming the state bird and the state song and has "never been used to prevent publication of official materials in other languages."¹²⁷ So construed, laws that merely declare English as the state's "official" language should create no legal rights in favor of the English-speaking majority.

Substantial legal questions surround the validity of a third form of comprehensive language law that does more than declare English the official language of government but does not expressly restrict the speech of government employees. Following an initiative in 1986, a provision incorporated into California's constitution established English as the official state language and declared further that the legislature "shall make no law which diminishes or ignores the role of English as the common language of the State of California."¹²⁸ Moreover, California residents and businesses have standing to enforce these declarations.¹²⁹ Unofficially, California's Attorney General interpreted the state's constitution narrowly to permit other languages to accompany English in official publications.¹³⁰ In a decision later vacated as moot, the Ninth Circuit interpreted California's law as "primarily a symbolic statement" that did not require Spanish-speaking government employees to speak English at work.¹³¹ The court recognized, however, that should the legislature take action to implement the language law as the initiative directs,¹³² then the Constitution "may conceivably have some concrete application to official government communications."¹³³ Since the adoption of the initiative in 1986, implementing legislation has been introduced regularly in the California legislature, but has not yet been enacted.¹³⁴

In summary, authorities to date support the following tentative conclusions on the legal effect and validity of English language laws. In considering laws that merely declare English as the official language of government, courts will construe those laws as having no substantive legal effect on the provision of bilingual services. In contrast, laws that prohibit public employees, acting in their official capacity, from using a language other than English to serve constituents unable to speak English¹³⁵ contravene the First Amendment. A declaration that prohibits the government from requiring the use of a language other than English, however, might survive scrutiny if it does not conflict with federal law¹³⁶ or the constitutional rights guaranteed to criminal defendants.¹³⁷ The courts have not yet considered directly the urgings of many commentators that these and the Official English laws contravene the Equal Protection guarantee.¹³⁸

Should English language laws survive constitutional scrutiny, they could frustrate efforts to extend consumer protection to language minorities.¹³⁹ English-Only provisions in state constitutions that prohibit the state's legislature from requiring the use of languages other than English would preclude laws that require translation of consumer contracts and disclosures of essential terms. Even if enacted as statutes, rather than as amendments to a state constitution, English-Only laws can wreak havoc on consumer protection for language minorities.¹⁴⁰ Courts might construe these laws as repealing existing statutes that require bilingual consumer disclosures and contracts.¹⁴¹ Moreover, these laws would prevent an administrative agency, such as the state's Attorney General Office, from exercising its rulemaking authority to require translations in consumer transactions.¹⁴²

These English-Only laws may also limit the authority of courts to dispense consumer justice to language minorities. For example, South Carolina's language statute prohibits any "order" or "decree" that "require[s]" the use of any language other than English.¹⁴³ Consider how a South Carolina court should resolve a claim that a merchant engaged in an unfair trade practice by failing to provide a translated contract following oral negotiations in Spanish.¹⁴⁴ Another interesting question is whether a court could conclude that a merchant has committed fraud by failing to translate an unfair contract term for a Spanish-Only Consumer.¹⁴⁵ In either case, a decision that favors the consumer arguably "requires" the use of a language other than English, creating a result presumably contrary to the English-Only law.

As shown, English-Only laws may impede the development of legislative, administrative, and judicial reforms to protect language minorities. Even the "symbolic" Official English laws may hinder reform. For example, one of the primary policy arguments made in favor of Official English (and English-Only) laws is that a multilingual government encourages immigrants to forego acquisition of English.¹⁴⁶ When urging legislation to require translated contracts and disclosures, consumer advocates will be met with the same claim that such reform runs counter to assimilation goals. Despite compelling arguments that the accommodation of other languages does not discourage or delay the acquisition of English,¹⁴⁷ the adoption of Official English laws reflects the rhetorical power and political popularity of these assimilationist claims. The Official English argument that multilingual government frustrates assimilative goals may also impede judicial activism. For example, defendants might rely on an Official English law to urge that a court should not obligate a business to translate unfair contract terms in favor of language minorities.¹⁴⁸

Given these potential impacts on consumer protection, consumer advocates should add their voices to those opposing the English language movement. Even when urged as a merely symbolic expression of patriotism,¹⁴⁹ English language laws are unsound because of their tangible impact on the development of consumer protection for language minorities. Once enacted, a "symbolic" Official English law may remain unchallenged on constitutional grounds due to its apparent lack of impact, yet still cause pernicious injury to language minorities.

B.Proposition 187 and Other Considerations in Choosing the Appropriate Legal Institution for Reform

Legislation is the best vehicle to protect language minorities against the market's failure to translate their bargains. Professor Alan Schwartz and the late Professor Arthur Leff have led the attack on judicial efforts to remedy imperfection in consumer markets generally. Professor Leff viewed the case-by-case application of the judicial doctrine of unconscionability to regulate the quality of consumer transactions as an expensive and frustrating proposition.¹⁵⁰ Professor Schwartz has argued that courts are "relatively poor social institutions" to resolve problems of imperfect information in consumer markets.¹⁵¹ He argues that legislatures are the institution best situated to promote the delivery of information to consumers through such policies as plain-language laws or statutes requiring the disclosure of relevant information.¹⁵²

Considerations specific to language minorities also favor legislative solutions to the current market abuses. In a discussion of the appropriate forum for the articulation of language rights, Professor Moran has distinguished between positive and negative rights.¹⁵³ Moran argues that courts are well equipped to enunciate negative rights, which are guarantees that a person will not suffer discrimination based on an exercise of choice, such as the decision to speak Spanish in a restaurant or tavern.¹⁵⁴ The legislature is an "inapt forum" to articulate such negative rights because its "orientation to the give-and-take of special-interest politics"¹⁵⁵ is likely to favor "assimilative approaches [over] those that preserve linguistic difference."¹⁵⁶ In contrast, positive rights, such as bilingual education programs, are better established by legislation followed by administrative enforcement.¹⁵⁷ Among other institutional constraints, "[c]ourts have limited resources to undertake enforcement of their decrees, and judges may not be able to oversee the broad-ranging structural reforms that implementation of a positive right requires."¹⁵⁸ Because reform to require translations in consumer transactions establishes a positive right, Professor Moran's analysis favors legislative intervention on behalf of language minorities.¹⁵⁹

Moreover, judicial reluctance to protect language minorities from unsafe products supports legislative intervention. In establishing, as a matter of law, that an aspirin manufacturer had no duty to warn of product dangers in Spanish, the California Supreme Court inferred from legislative silence that the California legislature had deliberately chosen not to protect language minorities.¹⁶⁰ The court reasoned that deciding when product warnings in a language other than English are required is a task for which "legislative and administrative bodies are particularly well suited."¹⁶¹ The court assumed that this policymaking would require collection of empirical data and consideration of questions such as the cost of multilingual warnings and the number of persons likely to benefit from warnings given in a particular language.¹⁶² The court cited many instances in which the California legislature had presumably engaged in such study to establish rights to bilingual information in public and private transactions, including consumer transactions.¹⁶³ The court also looked to a federal judge's comment that ">[t]he extent to which special consideration should be given to persons who have difficulty with the English language is a matter of public policy for consideration by the appropriate legislative bodies and not by the Courts.'"¹⁶⁴ The potential that courts will defer to a legislature's failure to establish positive rights for language minorities compels legislative initiative.

As to whether Congress or a state legislature is better suited to establish positive rights for language minority consumers, consumer protection experience supports federal intervention. One commentator has debunked the view that state legislatures are best able to engineer consumer protection policy because they are familiar with the unique local concerns of businesses and consumers.¹⁶⁵ Arguing for a "completely preemptive federal takeover" of consumer credit regulation, Professor Jeffrey Davis maintains that creditors and consumers do not have unique local needs.¹⁶⁶ Similarly, in arguing for establishment of federal payment systems law, Professor Mark Budnitz contends that "[c]onsumer concerns are national in scope and require national solutions."¹⁶⁷ Moreover, in the state legislatures, consumer groups are often less influential than the special interest groups that represent businesses.¹⁶⁸ In contrast, national consumer organizations are most effective before Congress.¹⁶⁹

The English language movement poses additional obstacles, both legal and political, that make federal intervention crucial. In those states with comprehensive English language laws adopted as constitutional amendments, notably California, state legislatures may be unable to establish positive consumer protection rights for language minorities.¹⁷⁰ Under the Supremacy Clause,¹⁷¹ Congress could override these state provisions.¹⁷²

Another obstacle to reform in the state legislatures is the anti-immigrant political climate that exists in many states with large immigrant populations. In California, for example, this attitude prompted both the 1986 Official English constitutional amendment¹⁷³ and 1994's Proposition 187. Although both these laws were adopted by initiative¹⁷⁴ rather than through legislation, it is unlikely that California's legislature will enact any positive rights to protect its immigrant population.¹⁷⁵ Although the concentration of language minorities in certain states may argue for localized solutions, local solutions are now politically unfeasible in most of those states. Therefore, in order to protect Spanish-Only Consumers and other language minorities, Congress must act.¹⁷⁶

Although Congress is the appropriate institution to establish positive rights for language minorities in their consumer transactions, other considerations compel reforms in every institution, legal and nonlegal. Congress too could fall victim to the anti-immigrant agenda.¹⁷⁷ Should it pass the proposed Language of Government Act of 1995 or similar legislation,¹⁷⁸ subsequent federal enactments of consumer protection for language minorities would contradict that legislation and be politically unfeasible. In fact, because the Act as introduced would not preempt state law,¹⁷⁹ the same factors necessitating congressional leadership in consumer language law reform support the need for simultaneous state reform.

Positive rights that Congress or the states establish may ultimately fail to protect every language minority.¹⁸⁰ Moreover, as the archetypical design of consumer protection regulation, disclosure laws may not address the needs of language minority consumers who are not literate in their native language.¹⁸¹ Finally, the current political climate may frustrate any source of legislative reform.¹⁸² Therefore, this Article considers and proposes reforms in other institutions, as well as designs for legislative reforms, that are facially applicable to consumers generally and therefore removed from any anti-immigrant backlash.

C. Racial Discrimination in Consumer Markets: Are Language-Based Solutions Too Narrow?

Reformers must consider whether solutions addressing marketplace language barriers miss the mark. Perhaps reform should aim to eradicate all forms of racial discrimination in consumer markets. Examples such as the water purification sales scheme¹⁸³ lend support to broader reform. In this instance, a scam targeting Spanish-speaking Latinos/as exploited not just the language barrier, but also Latinos/as' "almost religious quest" for pure water and their hesitancy to complain to government authorities.¹⁸⁴

Because continued immigration and an active anti-immigrant climate present increased opportunities for racial discrimination against Latinos/as in consumer markets, consumer and Latino/a advocates may hope for comprehensive reform. While not opposing comprehensive solutions, this Article aims to isolate and address the narrower issue of how to level the language playing field. Experience under the Equal Credit Opportunity Act (ECOA)¹⁸⁵ demonstrates that broad-brush efforts targeting racial discrimination through the creation of negative rights often fail to influence consumer markets. Among other problems, racial discrimination is difficult to prove under the ECOA and similar acts.¹⁸⁶ As a result, most ECOA claims rely on technical provisions that create bright line standards for compliance.¹⁸⁷ Because violations of more narrowly drawn positive rights are easier to establish, they are likely to have more deterrent influence on merchants than are vague, admonitory laws. Professor Whitford has argued persuasively that "increasing the specificity" of consumer legislation yields greater voluntary compliance by merchants.¹⁸⁸ Targeting language barriers with translation laws is the type of specific regulation that is likely to produce acceptable levels of compliance.

The apparent strength of the English language movement might argue for solutions that avoid direct focus on language issues. However, any broader attack on racial discrimination in consumer markets is likely to encounter allied prejudices: the anti-immigrant sentiment behind California's Proposition 187 and the anti-minority backlash apparent in current efforts to dismantle affirmative action.¹⁸⁹

Although it offers language-based solutions, this Article proposes strategies that may have broader impact on racial and ethnic discrimination in consumer markets. For example, aggressive public enforcement against language fraud practiced on Spanish-Only Consumers¹⁹⁰ should send merchants the more general message that there is no open season on Latinos/asany scam that victimizes them will prompt enforcement action.

D. Should Protection of Language Minorities Be Language-Neutral or Language-Specific?

Reforms that protect the Spanish-Only Consumer may be met with the English language movement's policy argument that accommodating a single language minority group itself discriminates against other language minorities.¹⁹¹ Pointing to the existence of over 4000 world languages¹⁹² and to the approximately 298 languages other than English spoken in American homes,¹⁹³ this argument assumes that fairness compels all-or-nothing solutions. Not surprisingly, in the realm of government services, this rhetoric usually favors the latter.¹⁹⁴

As a policy argument, however, this claim is nonsense. It overlooks the plain fact that any choice to conduct government business only in English discriminates against all other languages. Moreover, indigenous languages and Spanish were in use in America before the introduction of English.¹⁹⁵ The dominant status that the English language now enjoys is not an American birthright. Instead, the language movement urges English as the sole language of government because of its now overwhelming use by Americans.¹⁹⁶ This approach apparently assumes that at some point a numerical threshold was crossed that requires government to operate in English. There is no good reason why the threshold must admit only English, however, when there is an enormous gap between Spanish, the second most spoken language in American homes, and other languages. As reported by the 1990 census, there are 17.3 million Spanish-speakers in America, trailed by speakers of French at 1.7 million, German at 1.5 million, Italian at 1.3 million, and Chinese at 1.2 million.¹⁹⁷ These circumstances establish a strong case for the recognition of English and, at least, the Spanish language in the provision of government services and also in consumer settings.

Of the current approaches the law uses to extend positive rights to language minorities as consumers, some are language neutral because under the circumstances any language minority might qualify. Others protect a single language minority group (usually Spanish-speakers), while others strike a middle ground. These approaches include:

(1) protecting any consumer whom the merchant knows or has reason to know is unable to understand English (the Language of the Consumer Standard);¹⁹⁸

(2) protecting any consumer with whom the merchant negotiates in a language other than English (the Language of the Bargain Standard);¹⁹⁹

(3) protecting any language minority group that the merchant has targeted in non-English advertising (the Language of the Solicitation Standard);²⁰⁰

(4) protecting any language minority group that represents more than a specified percentage of the population or of the merchant's past customers (the Variable Language Threshold Standard);²⁰¹

(5) protecting only those members of a designated language minority group(s) (usually Spanish-speakers) (the Fixed Language Standard);²⁰² and

(6) some combination of these approaches.²⁰³

Language-neutral approaches include the Language of the Consumer, Bargain, and Solicitation Standards. They stand in contrast to those approaches that, by design, fail to protect at least some language minority groupsthe Variable Language Threshold and the Fixed Language Standards. Each of these approaches has its own unique advantages and shortcomings.

Rarely employed, the Language of the Consumer Standard would require businesses to determine whether each consumer can understand English and, if not, to translate any required disclosures and the written contract. Merchants likely would oppose this standard with horror stories of the cost and inconvenience of translating their contracts into every language that their customers might conceivably speak. Moreover, merchants might object to the burden placed on them to determine when their customers are unable to understand English. In practice, however, these concerns are overstated. In most locations, it is unlikely that merchants will encounter more than a few predictable language minority groups. Because the legislature should limit any translation requirement to significant consumer transactions above a floor dollar amount,²⁰⁴ in the rare event that a business bargains with an unanticipated language minority there will likely be sufficient opportunity to obtain a translation before the transaction is concluded. Public or private intermediaries could provide speedy translations to address this concern, as might on-line services or software programs.²⁰⁵

A more valid drawback of the Language of the Consumer Standard results from its emphasis on whether the merchant knows (or, perhaps, has reason to know) of the consumer's inability to understand the English contract. This standard will prompt the cautious merchant to probe affirmatively its customer's English ability.²⁰⁶ Unfortunately, the current anti-immigrant climate is likely to undermine this process. First, the Spanish-Only Consumer may be inclined to overstate her English language ability because of the stigma attached by the English language movement to the failure to understand English.²⁰⁷ The current anti-immigrant climate may cause the same exaggeration because Spanish-speakers are assumed to be undocumented immigrants. Moreover, laws such as California's Proposition 187 may require Latinos/as (and others) to verify their immigration status on demand. Latinos/as might perceive questions about their English language ability as attempts to verify their immigration status or as a precursor to discrimination targeted at Latinos/as.²⁰⁸ Perhaps posting prominent signs in Spanish that address the right to translations would alleviate some of the concerns that are particularly acute for the Spanish-Only Consumer.²⁰⁹ Still, the cautious merchant would want to assure himself of the consumer's English ability unless legislation relied on such signs to shift responsibility to the consumer to protect her own interest.

Legislatures that create positive rights for consumer language minorities usually employ the Language of the Bargain Standard. Because this standard looks to the language of the oral bargain, merchants can predict and control when and in which language(s) they must provide translations. This greater certainty, however, leads to several shortcomings. First, despite its facial neutrality, the standard is not language neutral in practice: a merchant can determine which language minority groups it will accommodate and refuse to bargain in any other languages. Second, by negotiating a bargain in English when a consumer is able to struggle through price and other simple deal terms, a merchant can escape the duty to translate the more complex provisions of the written documents and consumer disclosures even when it knows the consumer cannot comprehend them.

Most statutes that employ the Language of the Bargain Standard aggravate these problems by limiting the merchant's translation duty to just those transactions negotiated "primarily"²¹⁰ or "principally"²¹¹ in a language other than English. Therefore, merchants might elude the duty to translate even when they conduct some part of the negotiation in a language other than English. Statutes that look to the "primary" or "principal" language of the negotiation also engage the court in an undisciplined weighing of the English and non-English components of the negotiation process.²¹² Statutes that require translations when the business "conducts" a bargain in a language other than English are equally vague.²¹³ To avoid these difficulties, legislatures employing the Language of the Bargain Standard should require translations if "any portion" of the transaction is negotiated in a language other than English.²¹⁴

The Language of the Bargain Standard works best when conjoined with the Language of the Solicitation Standard.²¹⁵ This combination prevents manipulation of the Language of the Bargain Standard by merchants who lure language minorities with non-English advertising and then negotiate deals in simple English to avoid any translation requirement.²¹⁶ In the related area of dangerous product warnings, commentators have urged courts to adopt the Solicitation Standard.²¹⁷ Presumably manufacturers will object to any standard that looks to the language of the ultimate purchaser because it would overwhelm them with the duty to label in every potential language. By limiting the duty to warn to just those language minorities whose markets they entered with advertising, the Solicitation Standard, when operating alone, overcomes this objection.²¹⁸ For significant consumer transactions that involve oral bargaining, however, it is reasonable to extend the duty to translate to those transactions negotiated in languages other than English or, perhaps, to transactions where the business knows or has reason to know that the consumer cannot understand English.²¹⁹

Two alternate approaches are the Variable Language Threshold and the Fixed Language Standards. Unlike transaction-linked standards, these alternatives offer no protection to language minorities that do not meet their thresholds.²²⁰ Language minority groups that are protected, however, are spared the problems of proof under the other standards; for either approach it is immaterial whether the merchant knows the consumer is unable to understand English (the Language of the Consumer Standard),²²¹ negotiates some portion of the bargain in a language other than English (the Language of the Bargain Standard), or advertises to the particular language market (the Language of the Solicitation Standard).

When employed in consumer settings, however, the Variable Language Threshold and Fixed Language Standards are usually combined with the Language of the Bargain Standard. For example, the FTC used car rule requires that merchants translate warranty disclosures in transactions "conducted" in Spanish, but not those conducted in other languages.²²² A Florida regulation requires translation of documents in deals negotiated principally in a language other than English, but only if the language minority group accounts for five percent or more of the merchant's transactions at the particular business location.²²³ Under Florida's merchant-specific threshold, language minorities are never certain whether a merchant who does not deliver translations has nonetheless triggered the translation threshold.²²⁴ To avoid proof problems, thresholds should be unrelated to particular merchants, such as a standard based on state or county population.²²⁵ These population-based thresholds help to create a consumer expectation of translations in covered regions based on the conduct of other merchants in the area. Once established, this expectation helps consumers to identify and seek redress from merchants who fail to comply with the translation law.²²⁶

Instead of using the Variable Language Threshold or the Fixed Language Standard to limit the reach of the Language of the Bargain Standard, legislatures should consider using one of these language-specific standards to augment protection under a transaction-specific standard. For example, the legislature could require translations into Spanish in every transaction (Fixed Language Standard) together with any other language in which the merchant negotiates a particular transaction (Language of the Bargain).

In selecting the appropriate standard to protect language minorities, the following general considerations are relevant: (1) the type of forum selecting the standard and the need to distinguish between positive and negative rights; (2) the nature of the consumer transaction for which protection is sought; and (3) in targeting Latinos/as for protection, the diversity of their native languages and the differences in dialect of Spanish-speaking persons.

The standard employed may turn on whether the consumer seeks negative rights from the courts or positive rights from the legislatures. For example, a legislature may decide to require translations of bargains with any language minority group that exceeds a numerical threshold. A court is unlikely, however, to adopt such a bright-line standard.²²⁷ Moreover, the appropriate standard may be different for Congress than for the state legislatures. For example, if choosing between the Fixed Language and the Variable Language Threshold Standards, Congress is more likely to employ the latter standard to address national diversity,²²⁸ whereas the individual states might employ the Fixed Language Standard to designate the dominant language minority group(s) in the state.²²⁹

The appropriate standard may be different for various consumer transactions. For example, because Latinos/as may mistake their notary public for a lawyer and fall victim to inflated prices exploiting this potential confusion,²³⁰ a legislature might require that notaries clarify that they are not lawyers in Spanish only. In contrast, when addressing abuses common to language minority groups such as merchants' failing to translate consumer contracts, universal, language-neutral reform may be necessary.

Finally, in considering whether the large Latino/a population demands special attention, such as through the Fixed Language Standard, reformers must confront the diversity of languages and dialects among Latinos/as. For example, Brazilians and some other Latinos/as speak Portuguese rather than Spanish, while in Mexico and Guatemala alone approximately 260 different indigenous languages are spoken.²³¹ In Mexico, over five million people speak an indigenous language.²³² Moreover, diversity in dialects among Spanish-speakers raises concerns for reforms that require translations into the Spanish language. Differences in dialect, though in practice not too substantial,²³³ may render translations at least partially inaccurate. Because speakers of the four primary varieties of Spanish spoken in AmericaMexican, Puerto Rican, Cuban, and Peninsular²³⁴tend to concentrate in different locations, merchants may be able to accommodate these differences.

E. Inadequacies of the Market Perfection Paradigm as Applied to Language Minorities

Consumer protection regulation usually employs either a market perfection or a market control design.²³⁵ Market perfection solutions aim to improve the performance of market participants.²³⁶ The classic example is disclosure legislation intended to correct the market's failure to provide information necessary to ensure competition.²³⁷ The market perfection paradigm views markets as healthy institutions and consumers as competent to protect their own interests once given the necessary disclosures.²³⁸ In contrast, market control solutions assume that efficient operation of the market cannot be restored and must therefore be displaced by government control of the substantive terms of the bargain.²³⁹

Described as the "cornerstone of consumer credit legislation,"²⁴⁰ the federal Truth in Lending Act (TILA)²⁴¹ employs both models of consumer regulation. Among its provisions, TILA requires that lenders disclose the annual percentage rate and other basic terms of the loan transaction.²⁴² In addition to market perfecting disclosure, TILA employs market controls, such as prohibiting creditor termination of home equity credit plans except in certain specified circumstances.²⁴³ Employed by TILA for certain home loans, cooling-off periods share attributes of both the market control and market perfection models.²⁴⁴ Market control strategies in TILA, however, usually target isolated loan transactions and are overshadowed by TILA's typical reliance on disclosures. TILA's declaration of purpose emphasizes this market perfection model:

The Congress finds that economic stabilization would be enhanced and the competition . . . would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this title to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available . . . and avoid the uninformed use of credit . . . .²⁴⁵

TILA's predilection toward the market perfection paradigm reflects the usual tendency of legislatures and of many commentators to reject market control solutions as antithetical to freedom of contract.²⁴⁶ One commentator urges that legislatures resist market control solutions because such substantive regulation is easily eluded and limits consumer choices in a non-optimal manner.²⁴⁷ Usury regulation is a familiar market control strategy that illustrates these concerns. In order to elude restrictions on the legal rate of interest, lenders often charge unregulated fees and costs that fall outside the statutory definition of interest.²⁴⁸ Moreover, usury laws may exclude high risk borrowers from the legal lending market.²⁴⁹

Because of these free market concerns, many commentators promote market perfection by disclosure laws as the preferred legislative response to imperfect markets.²⁵⁰ Other commentators, however, point to the many weaknesses of disclosure regulation, aiming their criticism at TILA's disclosure scheme.²⁵¹ Critics of TILA charge that disclosure of the true cost of credit has had little effect on consumers, particularly those with low incomes.²⁵² Among the evaluative disabilities consumers face in reading consumer contracts and disclosures are a lack of education,²⁵³ so-called information overload,²⁵⁴ physical settings for consumer bargaining that are not conducive to careful deliberation and analysis,²⁵⁵ and the lack of opportunity to read the disclosures or the contract before becoming psychologically committed to the bargain.²⁵⁶

Results of a national literacy study released in 1993 (1993 Study) further fuel criticism of disclosure regulation.²⁵⁷ The study revealed that forty to forty-four million of America's 191 million adults achieved in the lowest of five levels of proficiency in interpreting prose, documentary, and quantitative information.²⁵⁸ Another fifty million adults performed at the next second lowest literacy level.²⁵⁹ Based on these findings, one commentator has remarked that faith in the value of disclosure laws "to >level the playing field' . . . should be reexamined in light of . . . [the evidence] that almost half of all Americans over age sixteen lack basic reading and math skills."²⁶⁰

The legislative tendency to favor market perfecting disclosure laws must also be reexamined to address the needs of the growing number of Spanish-Only Consumers and other language minorities. There are indications that disclosure may be even less effective for language minorities than it has proven for consumers generally. First, illiteracy rates of language minorities in their native languages might be higher than for English-speakers.²⁶¹ The 1993 Study did not measure the literacy of Americans in languages other than English.²⁶² Because they use different methodologies than the 1993 Study, literacy studies in Mexico and in other countries do not provide an accurate comparison to the literacy of Americans in English.²⁶³

Counterpart statistics on the level of educational attainment, however, may provide a means of comparing literacy levels. Of the variables explored in the 1993 Study, the level of education had a stronger relationship to the level of literacy proficiency than any other single variableincluding age and sex.²⁶⁴ Reports that on average Mexicans spend as few as four years in formal education in Mexico²⁶⁵ portend that the degree of literacy in Spanish of immigrants from Mexico may be much less than that in English for Americans generally.²⁶⁶ Before enacting laws requiring written translations for Spanish-Only Consumers and other language minorities, more study is needed of their levels of literacy in their native languages.²⁶⁷

Another factor that may affect disclosure solutions is the cultural familiarity of language minorities with the information to be translated. Disclosure laws assume that consumers will read the information disclosed, understand its meaning, and then comparison shop for the best package of terms.²⁶⁸ Reformers would profit from careful study of the level of language minorities' understanding of concepts such as balloon payments, credit insurance, as-is warranties, security interests, and others. Findings that language minorities are unfamiliar with concepts American businesses employ in consumer transactions may require market control solutions, more detailed disclosure than straight translations, and the establishment of consumer education programs to complement disclosure.²⁶⁹

Finally, the English language movement may restrict or impede the enactment of non-English disclosure regulation. For example, a statute that demands disclosure of essential terms in a language other than English may contravene a state constitution that prohibits the legislature from enacting any law that requires the use of non-English languages.²⁷⁰ In contrast, market control legislation that ensures a fair bargain without reference to language issues will evade any state (or national) English language law and, perhaps, the political climate that drives the English language movement. Moreover, because it is language neutral, market control legislation avoids the dilemma created under disclosure laws of deciding whether some or all language minority groups deserve protection.²⁷¹

Despite these language minority-specific considerations that raise doubts about disclosure solutions, there are indications that disclosure may prove more effective for language minorities than for consumers generally. Legislatures should weigh both sets of indications carefully. First, language minorities might be more inclined than consumers generally to read disclosures or contracts in their native language. Studies might reveal that translations offer a source of cultural grounding when presented in an otherwise unfamiliar marketplace setting.²⁷²

Second, although consumers may only give their contract a quick reading to confirm that it is, in fact, the "right" contract,²⁷³ a translation may enable language minorities, who cannot compare English contracts to the oral bargain they have struck, to perform this important task.²⁷⁴ For example, a Spanish-Only Consumer who intends to purchase but, through fraud or mistake, leases an automobile, is protected by a translation law if she at least reads the translated document's caption. This example also exposes an important constraint on market control regulation in addressing problems of language minorities. Because it would infringe too severely on consumer choice, few consumer advocates would urge that legislatures outlaw consumer leasing transactions.²⁷⁵ Here, translation laws present an attractive alternative.

In general, the choice between market control and market perfection should turn on a balancing test. The extent of the inability to correct the particular market failure through disclosure should be weighed against the degree of infringement that market control places on the consumer's freedom of contractual choice. Therefore, the appropriate choice may vary for different consumer transactions. For example, studies of the credit insurance industry that report high saturation²⁷⁶ and unfair pricing demonstrate that disclosure laws do little to encourage competition and fair pricing in that industry.²⁷⁷ Here, price control may be necessary to protect not only language minorities but consumers generally. In contrast, the appropriate protection for language minorities who misinterpret lease bargains as sales is to require translated disclosure of the contract rather than to outlaw often beneficial consumer leases.

III. AN AGENDA FOR REFORM: CONSUMER PROTECTION FOR LANGUAGE MINORITIES

A. Agenda for Legislative Reform

1. Overview

In addressing the marketplace abuse of language minorities, any legislature or advocate of legislative reform must confront and resolve the issues that this Article has examined: (1) whether an English language law or the movement that encourages these laws impedes legislative action;²⁷⁸ (2) whether legislation is the appropriate vehicle to establish protection of language minorities;²⁷⁹ (3) whether reform should extend to all languages other than English;²⁸⁰ (4) whether reform should level the language playing field or address broader issues of racial discrimination in consumer transactions;²⁸¹ and (5) whether reform should employ a market perfection or market control model.²⁸² In summary, this Article argues that legislatures are the best vehicle to establish consumer protection for language minorities and that reform efforts initially should target language issues rather than discrimination generally. If Congress establishes language policy, it can overcome state English language laws. In the state legislatures and agencies, however, the impact of these laws must be determined on a state-by-state basis. Although it offers guidelines, this Article does not answer definitively whether to choose market control over market perfection, and whether reform should extend to all language minorities. The answers depend on factors such as the particular consumer transaction for which protection is sought, as well as the outcome of the additional studies proposed. In resolving these and other open issues, legislatures should follow Professor Edward Rubin's suggestion that instead of a precise bill, the proper starting point to enact effective consumer legislation is an issue for development in hearings.²⁸³

2. Designing effective disclosure legislation for language minorities

Because market control legislation is usually reserved for particularly abusive transactions and terms,²⁸⁴ comprehensive legislative reform to protect language minorities will likely rely on market perfection strategies, particularly disclosure through translation. In structuring effective disclosure solutions for language minorities, legislatures must consider, among other issues, (1) the scope of transactions covered, (2) whether disclosure requirements should be language neutral, (3) how to ensure accurate translation, and (4) the adequacy of sanctions for noncompliance.

The range of consumer transactions includes loans, home and personal property rentals and purchases, the purchase of insurance, and the purchase of services, such as home improvements, car repairs, and even legal services. Most existing translation laws, however, are directed at isolated transactions such as door-to-door sales.²⁸⁵ Even California's comprehensive translation law, which governs a wide range of transactions such as retail installment sales, leases of dwellings for over one month, vehicle leases, and fee agreements for legal services, excludes sales of homes and many home loan transactions.²⁸⁶ It also excludes certain documents incidental to covered transactions, such as rules and regulations under residential leases.²⁸⁷ Shortly after its enactment, California's statute drew criticism for its failure to cover all transactions important to Spanish-Only Consumers.²⁸⁸ In enacting a translation statute, a legislature should include all consumer transactions unless: (1) a market control solu-tion for a particular transaction eliminates the need for disclosures;²⁸⁹ (2) a particular transaction is shown to have no record of abuse of language minorities, whether because of merchant self-regulation or otherwise; or (3) the legislature determines that the cost of translation would exceed its benefit in a particular transaction. For example, Florida translation law excludes both cash sales receipts and any documents in sale transactions under $150.²⁹⁰

Some existing translation statutes exclude transactions in which the language minority provides her own interpreter. For example, Oregon's rent-to-own translation law excludes transactions conducted through an interpreter "supplied" by the lessee.²⁹¹ Similarly, California's translation statute is inapplicable when the consumer has an interpreter not employed by or made available through the other party.²⁹² To protect against self-interested translations, these statutes should not defer to any interpreter who stands to benefit financially from the transaction, such as when a bilingual home improvement contractor acts as an intermediary between the consumer and a lender that finances the contractor's improvements.²⁹³ Even so limited, this interpreter exception seems ill-advised. The court must determine whether the consumer's interpreter was in fact competent to interpret the bargain.²⁹⁴ Moreover, those bargain terms that the interpreter deems important enough to translate may not coincide with those terms important to the consumer.²⁹⁵ Finally, if the transaction calls for a standard contract or disclosure that the merchant has translated in advance for language minorities without interpreters, it would be little trouble to provide that translation to consumers with interpreters.²⁹⁶

In requiring translations, the legislature must select a standard to determine when and in what languages the requirement is triggered. This selection will depend on factors such as whether the legislation is adopted by Congress or a state legislature, whether the legislature desires a language neutral standard, and the particular transaction for which translation is required. Recommendations and guidance to the legislature for resolving these issues may be found elsewhere in this Article.²⁹⁷

Another issue the legislature should address is how to ensure accurate translations. Concern over the accuracy of translations led the FTC to limit its used car rule translation requirement to just those sales conducted in Spanish.²⁹⁸ The FTC assured an accurate translation by specifying in Spanish the exact language of the required disclosure.²⁹⁹ When the material to be translated is not standardized, other approaches might ensure accuracy. For example, under California's general translation law the state Department of Consumer Affairs will verify translation accuracy for a fee.³⁰⁰

Finally, a legislature that requires translations must determine a sufficient sanction for noncompliance. California's translation law authorizes consumers to rescind untranslated contracts.³⁰¹ Ordinarily, the availability of rescission may avoid the need for courts to determine the extent of any unfairness in fixing an actual damages remedy. Limiting relief to rescission, however, may be inadequate in some circumstances. For example, a consumer who rescinds an untranslated loan bargain used to finance a vacation presumably would need to borrow the money at the market rate to repay the loan proceeds. If the original loan rate is equal to or below that market rate,³⁰² then the consumer gains nothing by exercising rescission and incurs the transaction costs of obtaining a substitute loan. Therefore, legislatures should consider authorizing minimum damages or a doubling or trebling of actual damages to help deter noncompliance.³⁰³

Legislatures that require translations should also consider ways to overcome the inadequacies of disclosure laws.³⁰⁴ Employed in door-to-door transactions,³⁰⁵ home equity loans,³⁰⁶ and certain other transactions, "cooling-off" laws might be extended to additional transactions, thus giving language minorities sufficient opportunity to examine the terms of the translated bargain and generally aiding comparison shopping for consumers.³⁰⁷ To overcome consumer illiteracy, legislatures might require oral translations of important terms in addition to written disclosures.³⁰⁸ Merchants not fluent in the particular language could provide the oral disclosure on a voice recording cassette prepared by some translation intermediary.³⁰⁹ To simplify the content of written translations, the legislature might look to the "plain English" laws in effect in several states.³¹⁰ Making contracts easier to read in English should also make them easier to translate into other languages. Finally, funding consumer education programs can help to overcome evaluative disabilities that the translation laws cannot address.³¹¹

Because legislative attention to the needs of language minorities may not be forthcoming,³¹² or may leave gaps in coverage, reformers must look to other means to establish protection. One strategy that holds promise is to seek the judicial and administrative interpretation and expansion of existing civil rights laws, consumer protection laws, and common law doctrines to encompass abuses of language minorities.³¹³ The next sections of this Article examine the potential reach of these existing laws into the new realm of language minority consumer protection.

B. Employing Civil Rights Laws Against Language Fraud and the English-Only Marketplace

1. The Civil Rights Acts

The federal Civil Rights Acts, '' 1981 and 1982, give all persons the same right to make and enforce contracts,³¹⁴ and all citizens the same right to purchase and sell real and personal property.³¹⁵ These requirements extend beyond state action to encompass private discrimination,³¹⁶ including discrimination in consumer transactions.³¹⁷ Successful claimants may recover compensatory and punitive damages.³¹⁸

Two significant obstacles that could impede the use of '' 1981 and 1982 by the Spanish-Only Consumer and other language minorities injured by language fraud or other English-Only practices in the marketplace are the requirements that the claimant: (1) prove racial discrimination;³¹⁹ and (2) prove that the discrimination was purposeful.³²⁰ Until a 1987 Supreme Court decision involving an Arabian professor denied tenure,³²¹ it was uncertain whether '' 1981 and 1982 protected Latinos/as.³²² In an effort to understand race, the Supreme Court explored Congress' intent behind the predecessors to '' 1981 and 1982.³²³ The Court concluded that Congress "intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics."³²⁴ Among those groups referred to as a race in debates that preceded the enactment of '' 1981 and 1982 were Mexicans and Spaniards.³²⁵ Since the Supreme Court's decision, district courts have refused to grant summary judgment against� claims brought by Cuban³²⁶ and Puerto Rican plaintiffs.³²⁷

Although it now appears that all or most Latinos/as constitute a nonwhite race (or races) for purposes of '' 1981 and 1982, it is not clear whether exploiting a language barrier is racial discrimination. In 1973, one of the few cases to consider the application of '' 1981 and 1982 to language-based discrimination held that a tavern's English-Only policy constituted "patent racial discrimination" against its Mexican customers.³²⁸ The tavern's language rule deprived Spanish-speaking persons of their right to contract for the purchase of beer and the right to drink it at the bar on an equal footing with white, English-speaking, customers.³²⁹

Although it arose in a consumer setting, this decision has dubious persuasive value for language minority consumers because it established a negative right in outlawing the tavern's ban on the speaking of Spanish. This is distinguishable from the positive right to obtain a Spanish-language translation from a business. Moreover, citing Griggs v. Duke Power Co.,³³⁰ the court looked to the language rule's impact on Mexican customers, not to the tavern owner's intent, in deciding that the policy violated '' 1981 and 1982.³³¹ Later, however, the Supreme Court refused to apply the Griggs disparate impact standard of proof in� litigation.³³² Instead, it held that�, like the Equal Protection Clause, "can be violated only by purposeful discrimination."³³³ Subsequently, the proof requirement frustrated an analogous� language claim brought against an employer that refused to hire truck drivers who spoke only Spanish.³³⁴

Whether the need for purposeful racial discrimination will hamper the claims of language minority consumers under '' 1981 and 1982 probably depends on the nature of their claim. The victim of the Fraud Bargain³³⁵ has the best chance to state a claim. In his much acclaimed study concluding that blacks pay more than white men in retail car transactions, Professor Ayres explained that to establish intentional discrimination under '' 1981 and 1982 the black car purchaser "would need to show that the specific car dealer with whom he or she had bargained considered the plaintiff's race in deciding how to bargain."³³⁶ Therefore, the Fraud Bargain victim must establish that the business took her race into account in deciding to misrepresent to her the terms of the written bargain.

Among its rejoinders, the business might argue: (1) its motive was to make money, not to discriminate against the consumer; (2) discrimination claims contemplate the refusal to deal with a certain race, not bargains struck on disparate terms; and (3) exploiting the consumer's language barrier is not discrimination based on race. Courts should reject them all. As to the first rejoinder, Professor Ayres reached the analogous conclusion that car dealers cannot attribute the higher prices obtained from black purchasers to a nondiscriminatory motive of maximizing profit because ">[d]iscrimination may be instrumental to a goal not itself discriminatory [such as profit].'"³³⁷ As to the second rejoinder, courts have established that '' 1981 and 1982 extend beyond the refusal to deal with a certain race to guard against bargains struck on discriminatory terms. For example, one court concluded that "there is no reason to distinguish a refusal to sell on the ground of race and a sale on discriminatory prices and terms."³³⁸ Finally, exploiting a consumer's language barrier should constitute racial discrimination because the native language of a nonwhite consumer is one of her "ancestry and ethnic characteristics."³³⁹ Thus, the language minority should state a claim when targeted for a fraudulent bargain that exploits her language barrier.

Consumer victims of an Unfair Bargain are less likely to state claims under '' 1981 and 1982 than victims of fraud. In this bargain model, language minorities have agreed to unfair terms but without any affirmative misrepresentations. Here, in addition to its arguments against the Fraud Bargain victim, the merchant might add that it did not target the consumer for any unfair treatment. Instead, the business may claim its practice to offer substantively unfair terms is racially neutral because it entraps "suckers" of any race who fail to read the contract or comparison shop. For the Unfair Bargain victim to prevail under '' 1981 and 1982, the factfinder would have to reach the unlikely conclusion that the business included the unfair term in its English language contract to discriminate against nonwhites.³⁴⁰

Finally, language minority victims of an Unintended Bargain probably have no claim under '' 1981 and 1982. Although subjectively undesirable, these bargains are objectively fair and have not been misrepresented. In these circumstances, the business will claim that it did not engage in any purposeful discrimination,³⁴¹ and, at least when the merchant believed that the bargain was acceptable to the consumer, the court will probably side with the merchant.

2. The Equal Credit Opportunity Act

Compared to their actions under '' 1981 and 1982, language minority claimants who invoke the federal Equal Credit Opportunity Act (ECOA)³⁴² face two obstacles but gain an important advantage. Although the ECOA governs only credit transactions and its application to language-based claims against lenders is uncertain, it does not require proof of intentional discrimination.

In contrast to the Supreme Court's liberal interpretation of '' 1981 and 1982 to prohibit ethnicity-based discrimination,³⁴³ courts have not yet construed the ECOA's prohibition of "race," "color," or "national origin" discrimination³⁴⁴ to encompass ethnic characteristics such as language. In pursuing language-based claims, ECOA claimants may reference several commentators who urge that an individual's primary language is "closely correlated and inextricably linked with their national origin."³⁴⁵ Claimants may also refer to Equal Employment Opportunity Commission Guidelines that create a presumption that employer English-Only rules constitute national origin discrimination under Title VII because "[t]he primary language of an individual is often an essential [characteristic of] national origin."³⁴⁶

Lenders, however, might cite cases that refuse to apply the strict scrutiny standard of review reserved for race and national origin classifications when claimants level equal protection challenges against government language policies. In Soberal-Perez v. Heckler,³⁴⁷ the Second Circuit concluded that the Government's failure to provide social security benefit forms and services in Spanish did not create an illicit classification based on race or national origin.³⁴⁸ Similarly, the Sixth Circuit held that an equal protection challenge against a city employment exam conducted in English did not implicate a suspect nationality or race.³⁴⁹ Equal protection claimants, however, must prove intentional discrimination.³⁵⁰ Courts consider the govern-ment's decision to provide services only in English as a facially neutral act and a "reflect[ion], at most, [of] a preference for English over all other languages,"³⁵¹ so necessarily, these cases usually fail. In ECOA litigation, by contrast, claimants may challenge facially neutral rules and policies under the disparate impact ("effects test") analysis.³⁵² If language minorities can prove that a lender's language practices unreasonably burden a particular race or nationality, they are able to establish a nexus between language and national origin that has eluded claimants in the equal protection context.³⁵³

Although ECOA litigation has produced little case law applying the "effects test,"³⁵⁴ a 1994 Policy Statement on ECOA and Fair Housing Act compliance issued by ten government agencies explained the ECOA disparate impact analysis.³⁵⁵ Discrimination is established by disparate impact "when a lender applies a practice uniformly to all applicants but the practice has a discriminatory effect on a prohibited basis [e.g., national origin] and is not justified by business necessity."³⁵⁶ Factors relevant to establishing business necessity include cost and profitability.³⁵⁷ As the Policy Statement suggests, however, even if business necessity justifies a practice with disparate impact, that practice is nonetheless discriminatory "if an alternative policy or practice could serve the same purpose with [a] less discriminatory effect."³⁵⁸

Under the standard established in the Policy Statement, victims of a Fraud Bargain can establish discrimination. Disproportionately successful when practiced on language minorities, there is no legitimate business necessity for language fraud.³⁵⁹ Victims of an Unfair Bargain should also satisfy the threshold showing of discriminatory effect. Here, however, the lender might convince the court that it failed to translate the written bargain on the business ground of cost rather than as a scheme to entrap borrowers into unfair deals.³⁶⁰ Unfair Bargain claimants may still prevail by suggesting alternate business practices which are both less discriminatory and not unduly expensive. For example, given the large number of Spanish-Only borrowers, a Spanish-Only Consumer could attempt to establish that lenders could efficiently utilize the Spanish language in their transactions.³⁶¹ Alternatively, the claimant could argue that, if it is unduly expensive to translate, the lender could simply eliminate the unfair terms from its bargains.

Finally, even Unintended Bargain claimants might utilize the disparate impact analysis. Presumably, a language minority can at least establish a prima facie case if a lender's English-Only policy results in a disproportionate number of Unintended Bargains for a particular language group.³⁶²

3. Other civil rights laws

The Federal Fair Housing Act³⁶³ protects home purchasers, lessees, and borrowers against race and national origin discrimination by employing the same proof standards available to ECOA claimants.³⁶⁴ Complementing federal law, many state laws proscribe racial, and sometimes, national origin discrimination in consumer credit³⁶⁵ and other consumer transactions.³⁶⁶

C. Employing Unfair Trade Practice Laws Against Language Fraud and the English-Only Marketplace

Federal law prohibits "unfair or deceptive acts or practices" in interstate commerce.³⁶⁷ In addition, all fifty states and the District of Columbia address these practices with laws known as Unfair or Deceptive Acts or Practices (UDAP) statutes.³⁶⁸ The UDAP laws provide language minorities several alternative means to challenge marketplace abuses.

UDAP statutes usually prohibit fraudulent misrepresentations in consumer transactions. They can complement, and in some instances, supplant a common law fraud action.³⁶⁹ Thus, Fraud Bargain victims may rely on the UDAP laws. In addition, UDAP laws may impose a duty on businesses to disclose unfair terms, either expressly or under the "catch-all" prohibition of unfair or deceptive business practices generally.³⁷⁰ The victim of an Unfair Bargain might, therefore, have recourse to UDAP laws.³⁷¹ UDAP laws may also ad-dress the Unintended Bargain. Consent agreements entered into by the FTC in the 1970s indicate that in some circumstances it may be unfair or deceptive for a business to fail to translate the terms of a bargain for language minority customers even though the bargain is not necessarily unfair and the business does not misrepresent its terms.³⁷² Several of these consent agreements declared the practice of merchants who failed to translate the written contract and disclosures following negotiations in a language other than English, as unfair or deceptive.³⁷³ Most of the consent agreements only required translation of the documents into Spanish.³⁷⁴ A few consent agreements required translation into any language in which the transaction was "principally conducted" (a Language of the Bargain approach).³⁷⁵ Often, the consent agreements looked beyond the oral sales presentation to require translations of bargains initiated by advertisements in Spanish (a Language of the Solicitation approach).³⁷⁶ Finally, a few of the agreements seemed to employ the broad Language of the Consumer Standard, although just for the Spanish-Only Consumer.³⁷⁷ In addition to these consent agreements, language minorities can point to the FTC door-to-door and used car rules, and to state UDAPs and regulations thereunder, which declare the failure to provide translations in certain situations an unfair or deceptive practice.³⁷⁸ Together with the consent agreements, these rules and regulations can be urged as guides to construe a UDAP "catch-all" that outlaws unfair or deceptive practices generally.

Despite these opportunities in existing UDAP laws, many inadequacies and uncertainties compel the exploration of other solutions. Reform of the UDAP laws might address some of the problems detailed below. These shortcomings include the lack of any private action under the federal and a few state UDAPs,³⁷⁹ together with the broad exclusions from coverage in many UDAPs that may exempt such mainstream transactions as loans of money,³⁸⁰ insurance,³⁸¹ and residential leases.³⁸² When compared to the few freestanding translation statutes that now exist, UDAPs sometimes add criteria for recovery that frustrate consumers. For example, some UDAPs require that private litigants prove they suffered an ascertainable loss.³⁸³ Sometimes, language minorities must urge the favorable construction of their UDAP unfair or deceptive "catch-all" to encompass a merchant's language practices.³⁸⁴ Further, some state UDAPs have no "catch-alls" and the language minority must look for an applicable enumerated unfair or deceptive practice.³⁸⁵ Finally, the FTC consent agreements preceded the FTC's adoption of new federal standards of unfairness and deception in 1980 and 1983 respectively.³⁸⁶ "Unfairness" now asks whether the particular practice causes "substantial injury to consumers that is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition."³⁸⁷ One commentator does conclude that failing to provide translations "falls nicely" into this new standard:

A non-English speaking consumer cannot reasonably avoid the fact that he or she cannot understand English disclosures. The confusion can lead to substantial injury. And in a situation where a seller has a large number of non-English speaking customers, it would not be costly to add disclosures in a second language.³⁸⁸

D. Language Fraud and the English-Only Marketplace as Fraudulent Conduct

1. Overview of common law remedies

After considering whether drug manufacturers must warn language minorities of product dangers, California's Supreme Court recently decided to defer to the legislature as the proper institution to impose such a duty.³⁸⁹ Because neither the legislature nor any administrative agency had done so, the court refused to establish a judicial duty to translate product warnings.³⁹⁰ Although this Article urges legislatures to enact standards that entitle language minorities to translations in consumer transactions, justice for language minorities depends on the concurrent evolution of common law fraud and unconscionability. Courts should also liberally interpret the existing codification of each of these doctrines so as to encompass translation rights.

2. Fraud bargains as common law and UDAP fraud

Businesses that misrepresent the terms of a written bargain to language minorities might claim that the consumer's reliance on the misrepresentation is unreasonable. They would refer to courts that have held that someone who fails to read a contract has not acted reasonably to protect herself and cannot protest the other party's misrepresentation.³⁹¹ Courts must reject this argument and punish intentional fraud without regard to whether the victim relied reasonably on the misrepresentation; to recognize negligence as a defense to an intentional tort is bad social policy.³⁹²

In transactions that they govern, state UDAPs have effectively displaced the common law as a remedy for fraud in part because UDAPs often eliminate some elements of proof that the common law requires. Because some UDAPs abandon the need to establish reasonable reliance, language minorities should plead their claims for relief from the Fraud Bargain under a UDAP whenever possible.³⁹³

3. Unfair and unintended bargains as common law and UDAP fraud

Courts usually hold illiterate parties to the terms of their unread contract unless the other party has misrepresented the writing to them.³⁹⁴ This fraud exception to the so-called duty to read has not been extended to nondisclosure of unfair or otherwise material terms. In tort and contract law generally, however, the action for nondisclosure is gaining momentum. Silence is considered the equivalent of misrepresentation only when there is some legally recognized duty to speak.³⁹⁵ The courts, however, have established several grounds for such a duty.³⁹⁶ Once limited to a few narrow exceptions such as the existence of a fiduciary relationship between the parties, erosion of the right to remain silent is now "so broad that a resourceful judge can almost always find a way to fit the facts of a case within the confines of one of the exceptions."³⁹⁷

Although the doctrine of unconscionability may also address the nondisclosure of unfair terms,³⁹⁸ its remedial limitations make that doctrine less than ideal.³⁹⁹ In contrast to the tepid remedies of unconscionability, fraudulent nondisclosure unleashes a more potent arsenal that might include punitive damages.⁴⁰⁰ Language minorities, therefore, should actively seek the judicial recognition of a duty to disclose (translate) certain bargains.

One emerging exception to the right to remain silent should be of particular use to victims of an Unfair Bargain. The leading torts treatise describes this exception as "a rather amorphous tendency on the part of most courts in recent years to find a duty of disclosure when the circumstances are such that the failure to disclose something would violate a standard requiring conformity to what the ordinary ethical person would have disclosed."⁴⁰¹ Using this exception, most courts now require sellers of realty or personalty to disclose material, latent defects.⁴⁰² For language minorities, unfair terms written in English are the equivalent of latent defects. Just as courts have begun to protect the buyer of a house with latent termite damage, even if she failed to inspect the home, courts should protect language minorities⁴⁰³ against the nondisclosure of unfair terms, even though they did not seek a translation.⁴⁰⁴

Courts could construe other exceptions to the general right to remain silent to protect language minorities. For example, nondisclosure constitutes fraud when the silent party takes some positive action to conceal the truth.⁴⁰⁵ Language minorities should argue that a merchant's decision to strike the written bargain in English is positive action to conceal unfair terms from a consumer unable to read English.⁴⁰⁶

The so-called half-truth exception requires full disclosure when necessary to prevent a partial statement of facts from being misleading.⁴⁰⁷ For example, when the merchant undertakes to translate the written bargain orally, but leaves out certain unfair terms, the omission should constitute fraud. Similarly, if a party conducts oral negotiations, wholly or in part, in a language other than English, the language minority should argue that any unfair term in the written bargain must also be translated.⁴⁰⁸

Some courts extend the duty to disclose in all fiduciary or confidential relationships to bargains where one party justifiably believes the other is looking out for her interests.⁴⁰⁹ Dealing with language minorities might give rise to one of these special relationships that imposes a duty to disclose unfair terms,⁴¹⁰ especially if the business targets language minorities with assurances, express or implied, that it will treat them fairly. For example, Spanish-Only Consumers might justifiably perceive a "Se Habla EspaZol" sign as the merchant's assurance that it will translate any unfair or otherwise material terms of the bargain.⁴¹¹ Arguably, the merchant creates the same expectation when it provides a bilingual salesperson to negotiate the oral bargain.⁴¹²

Finally, language minorities might establish a duty to disclose under applicable UDAP laws. Several UDAPs expressly require the disclosure of material facts in the transactions they govern.⁴¹³ Unfair terms in the English-language contract are material facts that should be disclosed (translated). These laws may also protect the victim of the Unintended Bargain, at least when the seller is aware of the buyer's misunderstanding, by treating the mistaken terms in the English-Only bargain as material facts to be translated. Most UDAPs also generally prohibit unfair or deceptive practices.⁴¹⁴ Failing to disclose or translate unfair terms, therefore, might be actionable by language minorities under these UDAP "catch alls."⁴¹⁵

E. Language Fraud and the English-Only Marketplace as Unconscionable Conduct

Although the unconscionability doctrine should encompass the Unfair Bargain, its insistence on substantive unfairness may exclude victims of the Unintended Bargain.⁴¹⁶ Moreover, the unconscionability doctrine's inadequate remedies fail to deter unconscionable conduct.⁴¹⁷ Codifications of the doctrine have begun to address both concerns, but additional reform is needed.

In contrast to the inadequate remedies under the common law and the first generation codification of the doctrine in UCC Section 2-302, some second generation codifications authorize more potent reme-dies. By invoking UDAPs that proscribe unconscionable practices,⁴¹⁸ language minorities can access the range of UDAP remedies that might include restitution, attorneys' fees, minimum damages, double or treble damages, and even punitive damages.⁴¹⁹ Another second generation statute, Article 2A of the UCC, authorizes courts to grant "appropriate relief" and attorneys' fees to victims of unconscionable consumer leases.⁴²⁰ To continue the development of adequate remedies, state legislatures should reform their UDAPs to (1) explicitly encompass unconscionable conduct, (2) extend to consumer transactions generally,⁴²¹ and (3) provide remedies sufficient to deter unlawful practices.⁴²² Current revision of UCC Article 2 must address the need for remedies sufficient to deter unconscionable conduct.⁴²³

Legislatures should also address the failure of the common law and the first generation statutes to explicitly authorize judges to strike down bargains as unconscionable based on procedural unfairness alone.⁴²⁴ Some second generation statutes have begun to expand the reach of the doctrine. For example, the 1974 Uniform Consumer Credit Code (UCCC) specifically addresses the abuse of language minorities. The UCCC's unconscionability standard asks whether the seller, lessor, or lender "has knowingly taken advantage of the inability of the consumer or debtor reasonably to protect his interest by reason of . . . illiteracy, inability to understand the language of the agreement, or similar factors."⁴²⁵ Similar language provisions are found in the 1968 UCCC,⁴²⁶ the Uniform Consumer Sales Practices Act,⁴²⁷ and in the various state consumer laws that codify or are influenced by these uniform laws.⁴²⁸ The Official Comments to the 1974 UCCC suggest that its language provision contemplates a substantively unfair bargain:

[A consumer is entitled to relief from] a sale of goods on terms known by the seller to be disadvantageous to the consumer where the written agreement is in English, the consumer is literate only in Spanish, the transaction was negotiated orally in Spanish by the seller's sales[person], and the written agreement was neither translated nor explained to the consumer, but the mere fact a consumer has little education and cannot read or write and must sign with an "x" is not itself determinative of unconscionability.⁴²⁹

If so construed, victims of Unfair Bargains are protected. These second generation statutes, however, may not extend to the Unintended Bargain, unless perhaps the merchant is aware of the consumer's mistake and takes knowing advantage by failing to translate.⁴³⁰ Even when the merchant is unaware of the consumer's mistaken understanding of the bargain, courts should exercise their wide discretion under these laws and protect the language minority if the merchant knew of the language barrier.⁴³¹ Alternatively, the victim of an Unintended Bargain can urge relief under those second generation statutes that expressly proscribe unconscionable "conduct" without reference to unfair terms. For example, Article 2A-108 of the UCC outlaws lease contracts "induced by unconscionable conduct."⁴³² Finally, even the common law and first generation standard might extend to Unintended Bargains if the court agrees that subjectively undesirable terms are always substantively unfair.⁴³³

Admittedly, extending the unconscionability doctrine to Unintended Bargain victims may have significant impact on transactions with language minorities. Because a merchant may not know when a language minority has mistaken expectations about the written bargain, cautious merchants will translate every bargain to protect their transactions against later attack. As a result, the unconscionability doctrine might serve as an equivalent to the Language of the Consumer model of positive law.⁴³⁴

F. Multi-Institutional Strategies to Protect Language Minority Consumers

1. Consumer education programs for language minorities

Consumer advocates often urge consumer education to complement the disclosure paradigm of consumer protection regulation.⁴³⁵ Apart from the need for adequate funding that generally plagues these programs,⁴³⁶ an effective consumer education program for language minorities must address issues specific to these consumers.

Any program of consumer education must address issues of content. For language minorities, education should include concepts and devices of the American marketplace with which they are unfamiliar. These concepts may include "as is" sales of used cars, credit insurance, extended product warranties, variable interest rates, rent-to-own transactions, and home loan escrow accounts. Because language barriers present opportunities for abuse, adult English instruction plays a role in the consumer education model for language minorities. Unfortunately, these language programs are often overbooked and underfunded.⁴³⁷

In designing consumer education programs for language minorities, it is crucial that planners consult representatives of the particular language group to help determine appropriate content. Moreover, language minorities are often suspicious of government activities.⁴³⁸ This is particularly true for the Latino/a community in the wake