2. Generally, applicants for naturalization as U.S. citizens must demonstrate that they can read, write, and speak simple English. 8 U.S.C. § 1423 (1994).

3. Cf. United States ex rel. Negron v. New York, 434 F.2d 386, 391 (2d Cir. 1970) (finding that both Sixth Amendment and "simple humaneness" require that state provide translator for non-English speaking criminal defendant); see also Tejeda-Mata v. Immigration and Naturalization Service, 626 F.2d 721, 726 (9th Cir. 1980) (finding that trial judge abused discretion by not allowing simultaneous translation into Spanish of testimony offered against defendant in deportation hearing); United States v. Mosquera, 816 F. Supp. 168, 175 (E.D.N.Y 1993) (requiring translation of court documents for non-English speaking criminal defendants in order to allow "meaningful access to relevant documents"). For a discussion of the effect of language barriers on the need for knowing and intelligent waiver of Miranda rights, see Linda Friedman Ramirez et al., When Language Is a Barrier to Justice, CRIM. JUST., Summer 1994, at 2. In contrast, the California Supreme Court found no constitutional basis for a state supplied translator in civil proceedings. Jara v. Municipal Court, 578 P.2d 94, 96 (Cal. 1978), cert. denied, 439 U.S. 1067 (1979).

4. See 42 U.S.C.§ 1973aa-1a(b)(2) (1994); see also infra note 201.

5. See Lau v. Nichols, 414 U.S. 563, 566-69 (1974) (holding that failure of San Francisco school system to provide English language instruction to students of Chinese ancestry who do not speak English violates Civil Rights Act of 1964). For a discussion of bilingual education, see generally Rachel F. Moran, Bilingual Education as a Status Conflict, 75 CAL. L. REV. 321 (1987); Rachel F. Moran, The Politics of Discretion: Federal Intervention in Bilingual Education, 76 CAL. L. REV. 1249 (1988).

6. The term Latino/a is meant to refer to all persons with ancestry in Spanish-speaking countries. Unless used in source material, this Article does not employ the "Hispanic" designation because of its controversial implications. See generally RODOLFO ACUZA, OCCUPIED AMERICA: A HISTORY OF CHICANOS ix-xii (3d ed. 1988) (describing Hispanic label as return to philosophy of Mexican positivists at turn of this century who wanted to purge indigenous Mexicans and convert Mexico into European Spanish nation). Latino/a is intended to include those persons with ancestry in countries that are commonly thought of as Spanish-speaking, but whose native languages are indigenous. See infra notes 231-34 and accompanying text (discussing diversity of languages among Latinos/as). The differences among the various statutory definitions of the Latino/a people reflect this diversity of languages and of cultures. See Lisette E. Simon, Comment, Hispanics: Not a Cognizable Ethnic Group, 63 U. CIN. L. REV. 497, 508-10 (1994) (describing range of state and federal definitions of "Hispanic").

7. For examples of such practices, see infra Part I.B.

8. Although the federal Voting Rights Act protects only language minorities who are also members of certain specified racial and ethnic minority groups, see infra note 201, the proposals in this Article can extend beyond members of minority groups. See infra note 197 and accompanying text (discussing census statistics that report French, German, and Italian as most common languages spoken in American homes after English and Spanish).

9. Paul Raeburn, Americanization Found to Reduce Immigrant Student's Performance, L.A. DAILY NEWS, Feb. 23, 1994, at N12 (commenting on 1990 census figure of 19.8 million immigrants). Census figures released in 1995 reported the number of immigrants had reached 22.6 million in 1994, the highest proportion of America's population since World War II. See Spencer Rich, U.S. Immigrant Population at Postwar High, WASH. POST, Aug. 29, 1995, at A1 (noting that current proportion of foreign-born population is nearly double that in 1970).

10. Rich, supra note 9, at A1 (noting that immigrants from Mexico comprise more than 6.2 of 22.6 million immigrants).

11. MARILYN P. DAVIS, MEXICAN VOICES/AMERICAN DREAMS 4 (1990).

12. BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, THE NATION'S HISPANIC POPULATIONC1994 (1995) (stating that in 1994, there were 27 million Hispanics in United States, and projecting Hispanic population of 31 million by 2000 and 88 million by 2050).

13. The Census Bureau itself estimates its 1990 census undercounted Latinos/as by 5.2%. 56 Fed. Reg. 33,582 (1991). An official from the Mexican American Legal Defense and Educational Fund suggested that fear of immigration officials and the lack of bilingual census takers led to the undercount of Latinos/as. See Frank M. Lowrey, IV, Comment, Through the Looking Glass: Linguistic Separatism and National Unity, 41 EMORY L.J. 223, 266 n.229 (1992) (stating that efforts of Immigration and Naturalization Service to discover and deport undocumented immigrants deter Latinos from responding to census inquiries); see also Memorandum from Laurence Hamblen, Executive Director, Lane County Legal Aid Services, Inc., to Timothy Wood, Financial Fraud Division, Oregon Attorney General's Office 5 (Oct. 24, 1992) (on file with The American University Law Review) ("Hispanics often do not respond to census-takers. They may fear that the information will be reported to the Immigration and Naturalization Service (INS). And there is a culturally rooted mistrust of government shared by Hispanics . . . .").

14. Some observers have speculated that Latino/a immigrants fail to assimilate as quickly as other immigrant groups. See, e.g., Walter P. Jacob, Note, Diversity Visas: Muddled Thinking and Pork Barrel Politics, 6 GEO. IMMIGR. L.J. 297, 303 (1992) (quoting Senator Alan Simpson's remarks that "[t]he assimilation of the English language and other aspects of American culture by Spanish-speaking immigrants appears to be less rapid and complete than for other groups"). Several studies, however, have debunked this racist stereotype of the obstinate or ignorant Latino/a immigrant. See generally Bill Ong Hing, Beyond the Rhetoric of Assimilation and Cultural Pluralism: Addressing the Tension of Separatism and Conflict in an Immigration-Driven Multiracial Society, 81 CAL. L. REV. 863 (1993) (providing comprehensive response to Senator Simpson and other assimilationists who urge immigration reform to exclude immigrants of color).

15. See Antonio J. Califa, Declaring English the Official Language: Prejudice Spoken Here, 24 HARV. C.R.-C.L. L. REV. 293, 312-17 (1989) (stating classic three-generation model of language acquisition and demonstrating its applicability to Latinos/as).

16. See, e.g., id. (discussing influential 1986 McCarthy/Valdez study of Mexican Americans in California confirming this model); Carol Schmid, Comment, Language Rights and the Legal Status of English-Only Laws in the Public and Private Sector, 20 N.C. CENT. L.J. 65, 71 (1992) (reporting results of 1988 Veltman study that points to shift toward two-generation pattern of English language acquisition for Latino/a immigrants).

17. Donald L. Horowitz, Conflict and Accommodation: Mexican-Americans in the Cosmopolis, in MEXICAN-AMERICANS IN COMPARATIVE PERSPECTIVE 78 (Walker Connor ed., 1985) (reporting results of 1978 Lopez study of 1129 couples in Los Angeles). My own family experience conforms to this normal shift in language ability and preference. My grandfather (Fernando Troncoso) immigrated to East Los Angeles from Chiapas around 1918 and my grandmother (Ramona Montes de Oca) left Guadalajara for California's Coachella Valley around 1921. Both learned English, but spoke mostly Spanish at home. My mother (Irene Troncoso), one of their five children, spoke both English and Spanish at home. Although I was born and raised in the East Los Angeles barrio, I spoke English at school and at home and know only some Spanish.

18. 1990 Census of Population and Housing, Apr. 30, 1993, available in WESTLAW, Cendata file [hereinafter 1990 Census] (reporting 17,339,172 Spanish-speakers).

19. Thomas H. Lee, Note, A Purposeful Approach to Products Liability Warnings and Non-English-Speaking Consumers, 47 VAND. L. REV. 1107, 1109 (1994).

20. 1990 Census, supra note 18.

21. 1990 Census, supra note 18.

22. See Rachel F. Moran, Irritation and Intrigue: The Intricacies of Language Rights and Language Policy, 85 NW. U. L. REV. 790, 801 n.66 (1991) (noting that census respondents exaggerate their linguistic ability to please census surveyors) (reviewing BILL PIATT, ONLY ENGLISH: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990)); see also NATIONAL COUNCIL OF LA RAZA, THE EDUCATION OF HISPANICS: STATUS AND IMPLICATIONS 12 (1986) [hereinafter LA RAZA REPORT] (illustrating unreliability of subjective language assessments using 1978 study that 72% of children identified by others as able to speak English very well or well were limited-English proficient as tested). Inability to speak English is particularly acute in the low-income Latino/a community. In a recent United Way study of low-income Latino/a households in Lane County, Oregon, 85% of respondents (many of them recent immigrants) reported difficulty in speaking English. UNITED WAY OF LANE COUNTY, REACHING OUTCLANE COUNTY HUMAN NEEDS ASSESSMENT 22 (1994) (on file with The American University Law Review).

23. There is at least one example from the reported cases of Latino/a consumers able to understand English when spoken to them but unable to read it. See United States v. Castillo, 120 F. Supp. 522, 524-25 (D.N.M. 1954) (holding that person who cannot read is not negligent for failing to verify that instrument was note rather than contract).

24. LA RAZA REPORT, supra note 22, at 36.

25. See LA RAZA REPORT, supra note 22, at 36 (estimating that one-half of Latino/a adults cannot read and write English at functional level, and that almost 9 out of 10 of these persons are also illiterate in Spanish).

26. More than Half, MEXICO BUS. MONTHLY, Jan. 1, 1993, available on 1993 WL 2508438 (reporting results of Mexican government report that seven percent of Mexico's population cannot read or write).

27. Education & Literacy Statistics, SourceMex Econ. News and Analysis on Mexico, July 22, 1992, available on 1992 WL 2397791 (stating that adult illiteracy rate is currently 12.4% (6.1 million people) compared to 25.8% in 1970). The 1994 World Factbook reports an illiteracy rate in Mexico of 13% of those age 15 and over. CENTRAL INTELLIGENCE AGENCY, THE WORLD FACTBOOK 260 (1994). E.g., Salinas Sends Educational Reform Proposal to Congress, LATIN AM. BUS. NEWS WIRE, Dec. 19, 1992 (stating that Mexican daily La Jornada estimated number of illiterates as high as 12%).

28. Report on 1990 Census Results, SourceMex Econ. News and Analysis on Mexico, Mar. 18, 1992, available on 1992 WL 2396872 [hereinafter Report on 1990 Census Results] (reporting results of government census that reported 23 million Mexicans are illiterate out of total population of 81.3 million). The disparity in numbers among the different studies likely results from different methodologies employed to measure literacy and different definitions of literacy. For example, it is unclear whether children were included or excluded in the foregoing study. High illiteracy rates are also reported in countries such as Honduras (41%), El Salvador (28%), Bolivia (26%), the Dominican Republic (23%), and Brazil (22%). 21 Latin American & Caribbean Nations: 1990 Population, Life Expectancy, 1980-1990 Average Annual Birth Rate, Notisur-South American & Caribbean Political Affairs, Mar. 11, 1992, available on 1992 WL 2410845.

29. New Revelations, MEXICO BUS. MONTHLY, May 1, 1992, available on 1992 WL 2397851 (reporting that National Parents' Union disputes Mexican government's estimate of 6.5 years of formal education and instead estimates time spent as four years); see also LINDA KING, ROOTS OF IDENTITY: LANGUAGE AND LITERACY IN MEXICO 105 (1994) (reporting national education average in Mexico as only four years of primary schooling).

30. New Revelations, supra note 29 (reporting that Education Minister (now President), Ernesto Zedillo, found that average Mexican receives 6.5 years of formal education).

31. Tanika White, Sweepstakes Fraud Targets Elderly, BEACON J., Oct. 27, 1994, at A4.

32. Jennifer Warren, Suit Links Satellite-Dish Seller, Lender to Fraud, L.A. TIMES, Apr. 1, 1989, at 1.

33. Tracy Wilkinson, Elderly, Poor Are Easy Prey for Home-Equity Schemers, L.A. TIMES, Oct. 15, 1989, at 1 (describing immigrant victims unable to read English that signed documents in English that conveyed their homes); see also How to Tell a Real Deal from a Well-Planned Scam, SACRAMENTO BEE, Jan. 14, 1990, at B10 (describing plight of immigrant Latino/a homeowners who unknowingly put their homes up as collateral to finance satellite dish and other consumer purchases).

34. Maya Blackmun, State Sues Auto Dealer, Alleging Illegal Sales Tactics, OREGONIAN, Feb. 25, 1993, at A1 (noting that unwanted extras frequently cost over $1000 and were included in financing packages carrying 39% interest).

35. Letter from Matthew Berlin, Law Clerk, Lane County Legal Aid Service, Inc., to Timothy Wood, Financial Fraud Division, Oregon Attorney General's Office 2 (Feb. 9, 1993) (on file with The American University Law Review).

36. Frederick Bermudez, Insurance Card Scam Probed, Hundreds of Drivers May Carry Fake Data, ARIZ. REP., Dec. 2, 1992, at B1.

37. See Rolo v. City Investing Co. Liquidating Trust, 845 F. Supp. 182, 197 (D.N.J.), aff'd, 43 F.3d 1462 (3d Cir. 1994).

38. See Rosalind Resnick, New Law Aims to Rein in State's Notarios Publicos, MIAMI HERALD, July 8, 1991, at 15BM (discussing Florida disclosure law enacted to combat this abuse).

39. The example that follows roughly parallels a scam in East Los Angeles that targeted Latino/a immigrants. See Wolf at the Door, L.A. TIMES, Mar. 14, 1993, at 16.

40. DAVIS, supra note 11, at 183.

41. This modern example resonates with history. See TOM S. ALMAGUER, RACIAL FAULT LINES: THE HISTORICAL ORIGINS OF WHITE SUPREMACY IN CALIFORNIA 65-87 (1994) (describing displacement of Mexican ranchero land holdings to Anglo immigrants in mid- to late 19th century California precipitated in part by exorbitant mortgage interest rates of 36% charged by Anglo creditors).

42. See Memorandum from Raul Ramirez, Hispanic Outreach Program Director, Oregon Attorney General's Office, to Timothy Wood, Financial Fraud Division, Oregon Attorney General's Office (May 24, 1995) (on file with The American University Law Review) (reporting practice in Oregon community of debt collectors threatening to turn undocumented Latinos/as in to federal immigration authorities unless they pay).

43. Passed by initiative in 1994, Proposition 187 requires educators, public health providers, and others to deny public services to those persons they suspect are not legal residents. Judges in California have enjoined the enforcement of most of its provisions pending resolution of constitutional challenges against this mean-spirited measure that are expected to reach the Supreme Court. See League of United Latin American Citizens v. Wilson, 908 F. Supp. 755, 765-68 (C.D. Cal. 1995) (severing Proposition 187 and holding that federal law preempts initiative's classification and reporting provisions and its denial of primary and secondary education to undocumented immigrants); see also infra notes 176 and 208 and accompanying text (discussing potential impact of Proposition 187 on consumer protection).

44. See infra notes 218-19 (discussing strategies to protect Spanish-Only Consumer from dangerous products).

45. Cf. United States v. Castillo, 120 F. Supp. 522, 523 (D.N.M. 1954) (involving consumers who relied on false representation that they were signing repair contract that required satisfactory completion as condition to payment and were unaware they had signed unconditional note).

46. See Steven W. Bender, Rate Regulation at the Crossroads of Usury and Unconscionability: The Case for Regulating Abusive Commercial and Consumer Interest Rates Under the Unconscionability Standard, 31 HOUS. L. REV. 721, 774-79 (1994) (discussing factors that determine fair rate of interest).

47. Cf. Teran v. Citicorp Person-to-Person Fin. Ctr., 706 P.2d 382, 387-88 (Ariz. Ct. App. 1985) (refusing to hold lender accountable for failure of translator procured by borrowers to reveal that home improvement financing was secured by lien on their residence). In the Teran case, presumably, the existence of the lien was reasonable and not unusual for home improvement loan transactions with the terms offered by the lender.

48. Gaskin v. Stumm Handel GmbH, 390 F. Supp. 361, 366 (S.D.N.Y. 1975). The so-called duty to read is not a true duty owed to the other party to the contract. Rather, it refers to the consequence that a party must read the contract or be bound to what she fails to read. John D. Calamari, Duty to ReadCA Changing Concept, 43 FORDHAM L. REV. 341, 341 n.4 (1974); see also Stewart Macaulay, Private Legislation and the Duty to ReadCBusiness Run by IBM Machine, the Law of Contracts and Credit Cards, 19 VAND. L. REV. 1051, 1055-69 (1966) (explaining policies behind duty to read requirement).

49. Aluia v. Harrison Community Hosp., 362 N.W.2d 783, 787 (Mich. Ct. App. 1984); see also Merrill, Lynch, Fenner & Smith, Inc. v. Benton, 467 So. 2d 311, 313 (Fla. Dist. Ct. App. 1985); 2 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS§ 4:16 (4th ed. 1990). In contrast, a few decisions place responsibility on the contract drafter to interpret the English language contract for the other illiterate or non-English speaking party. E.g., Trinh v. Metro. Life Ins. Co., 894 F. Supp. 1368, 1373-74 (N.D. Cal. 1995) (following dated California authority under which illiterate insurance applicant cannot be prejudiced by her failure to read insurance contract); Miller v. Spokane Int'l Ry. Co., 143 P. 981, 984 (Wash. 1914) (refusing to adopt majority rule when injured Austrian laborer sought to avoid English language release paying him "trifling" amount for his damages). This decision is a precursor to the modern, developing unconscionability exception discussed infra Part I.C.3.

50. E.g., United States v. Castillo, 120 F. Supp. 522 (D.N.M. 1954) (finding that homeowners signing unconditional promissory note relied on false representation of agent for home insulation company that they were signing conditional contract to repair their home); Chrysler Credit Corp. v. Henry, 221 So. 2d 529, 533 (La. Ct. App. 1969) (finding that consumer was fraudulently induced into signing contract).

51. RESTATEMENT (SECOND) OF CONTRACTS§ 21A (1981). See generally Dwight Preston, Comment, "No Hablo Ingles," 11 SAN DIEGO L. REV. 415, 428 (1974) (explaining remedies under California law when Spanish-speaking consumer is defrauded in marketplace).

52. Cohen v. Wedbush, Noble, Cooke, Inc., 841 F.2d 282, 287 (9th Cir. 1988) (holding investors bound by arbitration clause in margin credit agreement despite claim they were told that margin agreement did not compromise any of their rights).

53. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS§ 108, at 750 (5th ed. 1984); see Calamari, supra note 48, at 345 n.32 (">Is it better to encourage negligence in the foolish, or fraud in the deceitful? Either course has most obvious dangers. But judicial experience exemplifies that the former is the least objectionable, and least hampers the administration of pure justice.'" (quoting Western Mfg. Co. v. Cotton & Long, 104 S.W. 758, 760 (Ky. 1907))).

54. RESTATEMENT (SECOND) OF CONTRACTS§ 21A (1981).

55. See supra note 52 and accompanying text.

56. JOHN D. CALAMARI & JOSEPH M. PERILLO, CONTRACTS§ 9-20, at 367 (3d ed. 1987).

57. See infra Part I.C.3 (explaining reach and shortcomings of unconscionability doctrine as applied to language fraud and English-Only in marketplace).

58. See infra Part III.D.3 (discussing potential grounds on which court could impose duty on merchants to disclose unfair terms to language minority consumers).

59. See generally Bender, supra note 46, at 735 (explaining judicial use and adoption of unconscionability standard to monitor bargain fairness).

60. U.C.C.§ 2-302, at 68-69 (1962).

61. Bender, supra note 46, at 735-36.

62. See Arthur Allen Leff, Unconscionability and the CodeCThe Emperor's New Clause, 115 U. PA. L. REV. 485, 550 (1967) (criticizing unconscionability standard as one causing courts to decide cases through guesswork); see also Alan Schwartz, A Reexamination of Nonsubstantive Unconscionability, 63 VA. L. REV. 1053, 1053 (1977) (labeling unconscionability classifications as "non-substantive" and "substantive").

63. See Bender, supra note 46, at 747 (describing judicial application of U.C.C.§ 2-302 to support finding of unconscionability).

64. Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965); see also Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 94-97 (N.J. 1960) (holding that automobile dealer's disclaimer of implied warranty of merchantability and its exclusion of other responsibilities violated public policy in light of parties' grossly unequal bargaining positions).

65. See Calamari, supra note 48, at 355 (observing unconscionability doctrine creates an exception to, but does not expunge, duty to read). The unconscionability doctrine should encompass Spanish-Only victims of an Unfair Bargain because one with little bargaining power who signs a contract without full knowledge of its terms can hardly be said to have consented to its provisions. See id. (describing application of unconscionability doctrine).

66. 274 N.Y.S.2d 757 (Dist. Ct. 1966), rev'd on other grounds, 281 N.Y.S.2d 964 (Sup. Ct. App. Term 1967).

67. Frostifresh Corp. v. Reynoso, 274 N.Y.S.2d 757, 758 (Dist. Ct. 1966), rev'd on other grounds, 281 N.Y.S.2d 964, 964 (Sup. Ct. App. Term 1967).

68. See Bender, supra note 46, at 749 (citing Frostifresh and other "classic" consumer price unconscionability cases); Melvin A. Eisenberg, The Bargain Principle and Its Limits, 95 HARV. L. REV. 741, 753 n.41 (1982) (citing Frostifresh and other cases that may suggest but do not rely on circumstances of high-pressure selling).

69. The Restatement (Second) of Contracts employs the Frostifresh facts to illustrate that a party's inability to understand the language of a contract is a relevant factor in determining whether the bargaining process is unconscionable. See RESTATEMENT (SECOND) OF CONTRACTS§ 208 cmt. d, illus. 3 (1979) (explaining that relevant factors in determining existence of unconscionability in bargaining process include one's inability to understand language of agreement).

70. 357 N.Y.S.2d 378 (Civ. Ct. 1974).

71. Albert Merrill Sch. v. Godoy, 357 N.Y.S.2d 378, 381-82 (Civ. Ct. 1974).

72. Jefferson Credit Corp. v. Marcano, 302 N.Y.S.2d 390, 392-94 (Civ. Ct. 1969).

73. 855 F.2d 532 (8th Cir. 1988).

74. Besta v. Beneficial Loan Co., 855 F.2d 532, 535 (8th Cir. 1988).

75. Id.

76. Warren L. Dennis & Mark Mosling, Death Knell for Fiduciary Duties of Lenders to Consumer Borrowers, 46 BUS. LAW. 1323, 1323 (1991).

77. I have argued elsewhere that courts, in the consumer setting, should strike down bargains on substantive unfairness alone. See Bender, supra note 46, at 747-51 (describing scholarly and judicial indecision whether to require proof of both substantive and procedural unfairness to support finding of unconscionability). One advantage that accrues when courts treat the failure to disclose as procedural unfairness is that courts might find a bargain unconscionable on a lesser degree of substantive unfairness. Moreover, this approach avoids the controversy over striking down bargains on substantive unfairness alone. Id. at 748.

78. See Bender, supra note 46, at 757-60 (explaining variety of judicial remedies for unconscionable contracts).

79. See Frostifresh Corp. v. Reynoso, 281 N.Y.S.2d 964, 965 (Sup. Ct. App. Term 1967) (explaining that lower court erred in failing to award reasonable profit plus net costs to seller of unconscionably priced product); cf. Carboni v. Arrospide, 2 Cal. Rptr. 2d 845, 850 (Ct. App. 1991) (affirming trial court's reduction of unconscionable 200% interest rate to reasonable 24% rate).

80. U.C.C.§ 2-302 cmt. 1, at 69 (1962).

81. See Bender, supra note 46, at 749 (citing "classic" consumer price unconscionability cases that support this conclusion).

82. See infra Part III.E (discussing theories by which unconscionability doctrine might extend to Unintended Bargains). Although the Eighth Circuit's decision in Besta might be read to have relied solely on the procedural unfairness of the lender's failure to disclose a more advantageous bargain, the existence of that better bargain made the bargain actually struck substantively unfair. Moreover, the lender's failure to disclose in these circumstances is a close cousin to fraud. See Besta v. Beneficial Loan Co., 855 F.2d 532, 535-36 (8th Cir. 1988). A lower New York court invalidated a sales contract as unconscionable because the Spanish-Only Consumer was unable to understand the English contract and because the seller invoked high pressure sales tactics without providing a Spanish-speaking interpreter, but the reporting of the facts and the court's reasoning is sketchy. Brooklyn Union Gas Co. v. Jimeniz, 371 N.Y.S.2d 289, 290 (Civ. Ct. 1975).

83. See 16 C.F.R.§ 429.1(a) (1995) (providing for delivery of three-day cancellation notice in same language as contract).

84. See 16 C.F.R.§ 455.5 (1995) (establishing disclosure requirements and format for sales conducted in Spanish language). The FTC, however, has approved exemptions from its used car rule in favor of state law in Maine and Wisconsin that fails to require Spanish language translation. In both cases, the FTC relied on evidence that the Latino/a populations in those states were small. See 53 Fed. Reg. 16,390, 16,393 (1988) (exempting Maine); 51 Fed. Reg. 20,936, 20,941-42 (1986) (exempting Wisconsin).

85. See OR. REV. STAT.§ 646.249 (1993) (stating that statutory disclosures in lease-purchase agreements must be provided in non-English language in which any portion of the transaction is conducted). This section does not apply if the consumer supplies an interpreter to conduct any part of the transaction. Id.

86. See N.Y. GEN. BUS. LAW ' 394-c7(b) (McKinney Supp. 1995) (stating that seller of social referral services must furnish buyer with contract in same language as that used principally in oral sales presentation).

87. 15 U.S.C. '' 1601-1677 (1994) (advancing disclosure of consumer credit terms to promote informed credit use, to protect consumers, and to encourage competition among financial institutions to enhance economic stability).

88. 12 U.S.C. '' 4301-4313 (1994) (specifying federal standards for clear and uniform disclosure of financial institutions' interest rates and fees).

89. Id. '' 2601-2617 (stating federal requirements for variety of steps involved in real estate settlement process in order to better protect consumers).

90. 15 U.S.C. '' 2301-2312 (1994) (specifying content of consumer product warranties).

91. Id. '' 1701-1720 (setting forth federal registration and disclosure requirements pertaining to land sales).

92. Cf. County Trust Co. v. Mora, 383 N.Y.S.2d 468, 470 (Rockland County Ct. 1975) (explaining that Truth in Lending Act does not require disclosures in Spanish even when consumers cannot understand English). On the other hand, a defective English disclosure statement that a Spanish-Only Consumer could not understand was no defense to liability. See Zamarippa v. Cy's Car Sales, Inc., 674 F.2d 877, 879 (11th Cir. 1982) (rejecting subjective standard measuring consumer's deception or misunderstanding to determine whether relief should be granted when seller's disclosure statements failed to comply with federal regulations).

At best, sometimes these federal disclosure laws expressly allow translations at the option of the business. See, e.g., 12 C.F.R.§ 230.3(b) (1995) (permitting depository institutions to give Truth in Savings disclosures in other languages if English disclosures are available upon request); 24 C.F.R.§ 3500.6(d)(3) (1995) (explaining that lender may translate special information booklet required by Real Estate Settlement Procedures Act into languages other than English); id.§ 3500.9(a)(8) (stating that settlement statement of Department of Housing and Urban Development may also be translated into languages other than English). Because creditors in Puerto Rico are expressly given the option to provide Truth in Lending disclosures in Spanish, this might imply that rate disclosure translations are improper in other locations. See 12 C.F.R.§ 226.27 (1995) (authorizing disclosure in English and/or Spanish in Puerto Rican transactions). The Board of Governors of the Federal Reserve System has concluded, however, that Arizona's state disclosure law under the Small Loans Act, requiring disclosures of Truth in Lending information in English and Spanish, is consistent with, and not preempted by, federal law if every borrower receives English disclosures and the Spanish disclosures are provided as additional information. See 50 Fed. Reg. 25,068-69 (1985) (examining state language disclosure requirements vis-B-vis federal regulations).

93. If the financing transaction results from a door-to-door sale but involves the creation of a non-purchase money loan secured by a principal dwelling, the Federal Trade Commission's door-to-door rule that would require certain Spanish-language disclosures gives way to the Truth in Lending Act. See 16 C.F.R.§ 429.1 note 1(a)(2) (1994) (stating requirements for door-to-door sales shall not apply where consumer has rescission under Consumer Credit Protection Act); see also BILL PIATT, ONLY ENGLISH? LAW AND LANGUAGE POLICY IN THE UNITED STATES 147-48 (1990) (pointing out inconsistency of federal laws that require Spanish language disclosures of warranty information in used car sales, but do not require Spanish language disclosure of interest rate and total payments due when automobile purchase is financed).

94. Rather, noncompliance with the door-to-door or the used car rule constitutes a violation of the Federal Trade Commission Act (FTCA) that is actionable only by the FTC. See Steven W. Bender, Oregon Consumer Protection: Outfitting Private Attorneys General for the Lean Years Ahead, 73 OR. L. REV. 639, 640 n.7 (1994) (detailing federal court's rejection of consumer litigants' attempts to pursue private actions under FTCA).

95. See ARIZ. REV. STAT. ANN.§ 6-651(A)(2) (Supp. 1995) (requiring consumer loan providers to provide Spanish-language disclosures on request); cf. CAL. CIV. CODE§ 1632(b)-1632(b)(1) (West Supp. 1995) (noting that financial organization complies with California's Spanish-language contract translation requirement by providing Spanish translation of disclosures required under Truth in Lending Act).

96. See, e.g., CAL. CIV. CODE§ 1689.7 (West Supp. 1995) (providing that buyer's agreement, resulting from home solicitation contract, may be canceled by buyer within specified time); N.Y. PERS. PROP. LAW ' 428 (McKinney 1992) (providing for buyer's right to cancel door-to-door sales).

97. See JONATHAN SHELDON & CAROLYN L. CARTER, NATIONAL CONSUMER LAW CENTER, UNFAIR AND DECEPTIVE ACTS AND PRACTICES§ 3.2.4.6, at 90 (3d ed. 1991) (explaining that state statutes may create private right of action by making per se violation for failure to follow federal provisions, even though private right of action may not be available at federal level).

98. CAL. CIV. CODE ' 1632 (West Supp. 1995) (requiring any person in trade or business to furnish Spanish translation contract when oral negotiations are conducted in same language).

99. ILL. ANN. STAT. ch. 815, para. 505/2N (Smith-Hurd 1993).

100. FLA. ADMIN. CODE ANN. r. 2-9.005 (1995).

101. See infra Part II.D (examining whether legislative protection of language minorities should be language neutral); infra Part III.A.2 (discussing legislative reform for protection of language minorities).

102. "Official English" refers to those laws that provide that English is the "official language" of the state. In contrast, "English-Only" refers to those laws that further purport to prohibit the government from acting in languages other than English. Some state laws are not easily categorized as one or the other. See Lowrey, supra note 13, at 283 n.311 (explaining differences between Official English and English-Only legislation).

103. See generally DENNIS BARON, THE ENGLISH-ONLY QUESTION 1-13 (1990) (describing early beginnings of state Official-Language laws); Lowrey, supra note 13, at 282-83 (describing perception of and negative sentiment against waves of immigrants and resulting changes in state legislation).

104. NEB. CONST. art. 1,§ 27; see also Jamie B. Draper & Martha JimJnez, A Chronology of the Official English Movement, in LANGUAGE LOYALTIES: A SOURCE BOOK ON THE OFFICIAL ENGLISH CONTROVERSY 89 (James Crawford ed., 1992) [hereinafter LANGUAGE LOYALTIES]. An Illinois statute, adopted in 1923, declared "American" as its official language, but was amended in 1969 to substitute English for American. ILL. ANN. STAT. ch. v., para. 460/20 (Smith-Hurd 1991); see Dennis Baron, Federal English in LANGUAGE LOYALTIES, supra, at 36, 39 (describing passage of Illinois state bill promoting American over English as official state language due to American hostility toward British).

105. Lowrey, supra note 13, at 282 & n.307.

106. Joseph Leibowicz, Official English: Another Americanization Campaign?, in LANGUAGE LOYALTIES, supra note 104, at 101, 105.

107. Many states require that examinations for business or professional licenses be conducted in English. See, e.g., ALA. CODE ' 34-29-73 (1975) (veterinary license); CAL. BUS. & PROF.§ 1630 (West 1996) (dentistry license); MO. ANN. STAT. ' 340.240 (Vernon 1995) (veterinary license); MONT. CODE. ANN.§ 37-3-311 (1993) (license to practice medicine).

108. A 1978 amendment to Hawaii's Constitution declared English and Hawaiian as official state languagesCa move intended to be inclusive of the state's primary language minority. HAW. CONST. art. XV,§ 4.

109. For more detailed history of U.S. English and the modern English language movement, see generally JAMES CRAWFORD, HOLD YOUR TONGUE: BILINGUALISM AND THE POLITICS OF "ENGLISH ONLY" (1992) (arguing that promotion of English-Only mentality or unilingualism is short-sighted and choice to speak other native languages is question of individual rights and self-determination); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269 (1992) (reporting that historical oversight of current Official English language movement is its failure to recognize that other languages, besides English, were also accepted by several states as "official" languages). For example, California's first constitution provided for laws to be published in English and Spanish. Perea, supra, at 317; see also Andre Sole, Official English: A Socratic Dialogue/Law and Economics Analysis, 45 FLA. L. REV. 803, 820-32 (1993) (describing 1983 formation of U.S. English, an activist group that advocates state and federal English-Only statutes, constitutional English-Only amendment, eradication of bilingual voting ballots and education, claiming to promote national unity and to encourage immigrants to learn English).

110. ARIZ. CONST. art. 28; ARK. CODE ANN.§ 1-4-117 (Michie Supp. 1993); CAL. CONST. art. 3,§ 6; COLO. CONST. art. 2,§ 30; FLA. CONST. art. 2,§ 9; 1986 Ga. Laws 529; IND. CODE ANN.§ 1-2-10-1 (Burns 1993); KY. REV. STAT. ANN. ' 2.013 (Baldwin 1995); MISS. CODE ANN. ' 3-3-31 (1991); N.C. GEN. STAT. ' 145-12 (1994); N.D. CENT. CODE§ 54-02-13 (1989); S.C. CODE ANN.§ 1-1-696 (Law. Co-op. Supp. 1994); TENN. CODE ANN. ' 4-1-404 (1991); VA. CODE ANN.§ 22.1-212.1 (Michie 1993). Georgia's adoption was by a nonbinding resolution. 1986 Ga. Laws 70. In 1995, however, Georgia's governor vetoed Official English legislation. See 1995 Ga. S.B. 49, 143rd Gen. Assembly, Reg. Sess. (1995) available in WESTLAW, Bill Tracking Database. See generally English Only Translates to Hostility, ATLANTA CONST., Apr. 26, 1995, at A14 (editorial) (stating Georgia governor's two reasons for vetoing Official English bill: (1) bill invites lawsuits from non-English speakers that would be expensive for state to defend; and (2) bill sends signal of hostility and disapproval to immigrants).

111. ALA. CONST. amend. 509.

112. H.R.J. Mem. Res. 16, 39th Leg., 1st Sess., 1989 N.M.; S.J. Res. 16, 65th Leg., 1989 Or. Sess.; H.R. Res. 2129, 51st Leg., 1989 Wash. Legis. Serv. 236 (West).

113. R.I. GEN. LAWS ' 42-5.1-1 (1993) (articulating state's policy that multilingualism and diverse backgrounds of its citizens contribute to state's economy and that it is every resident's right to nurture their native language, although English remains primary language of United States). Despite frequent reference to Louisiana as an "Official English" state, Louisiana law does not so provide and its legislature rejected such legislation in 1994 and in prior year efforts. See Gail D. Cox, "English-Only": A Legal Polyglot, NAT. L.J., Oct. 26, 1987, at 1, 10 (noting that English language effort that failed because of concern it would imperil efforts to promote Cajun); cf. R. Geoffrey Dillard, Note, Multilingual Warning Labels: Product Liability, "Official English," and Consumer Safety, 29 GA. L. REV. 197, 244 n.88 (1994) (listing Louisiana as an "Official-English" state since 1812, presumably referencing a since repealed provision of Louisiana's Constitution); U.S. ENGLISH, TOWARDS A UNITED AMERICA (containing promotional materials from U.S. English that reflect Louisiana as "Official English" state) (on file with The American University Law Review).

114. Former Senator Samuel I. Hayakawa of California introduced the first proposal as a constitutional amendment. S.J. Res. 72, 97th Cong., 1st Sess. (1981). That law sought to preclude Congress and every state government from making or enforcing any law that required the use of a language other than English. See generally Elliot L. Judd, The English Language Amendment: A Case Study on Language and Politics, 51 REVISTA DEL COLEGIO DE ABOGADOS DE PUERTO RICO 115 (1990) (discussing history of various federal English language proposals from 1981 to 1986).

115. H.R. 123, 104th Cong., 1st Sess. (1995); S. 356, 104th Cong., 1st Sess. (1995). Unlike some prior efforts, however, these bills are not proposed as precursors to a constitutional amendment.

116. See 1995 Conn. H.B. 5262; 1995 Ga. H.B. 378; 1995 Iowa H.B. 47; 1995 Md. H.B. 657; 1995 Md. S.B. 200; 1995 Mass. H.B. 477; 1995 Mont. H.B. 376; 1995 N.H. Laws 157; 1995 N.Y. A.B. 2432; 1995 N.Y. A.B. 6153; 1995 N.Y. S.B. 938; 1995 Ohio H.B. 273; 1995 Pa. H.B. 793; 1995 Pa. S.B. 1216; S.D. Codified Laws Ann.§ 1-27-20 (1995); 1995 Wash. S.J.R. 8209; 1995 W. Va. H.B. 2378; 1995 Wis. A.J. Res. 291.

117. MONT. CODE ANN. LAWS§ 3-1-314 (1995); 1995 N.H. LAWS 157 (to be codified at N.H. REV. STAT. ANN. ' 3-C:1); S.D. CODIFIED LAWS ANN. ' 1-27-20 (1995); 1996 Wyo. Sess. Laws 154 (to be codified at WYO. STAT.§ 8-6-101). The governors of Georgia and Maryland vetoed English-language legislation. See 1993 Md. H.B. 982, 408th Legis. Sess., Reg. Sess. (1994) available in WESTLAW, Bill Tracking Database (noting that governor vetoed this legislation in May 1994); supra note 110 (discussing Georgia governor's veto). Delaware's governor did so in 1994. See Del. H.B. 460, 137th Gen. Assembly, Reg. Sess. (1993-94).

118. 1995 Kan. H.B. 2929, 76th Legis., Reg. Sess. (1996); 1996 Mo. H.B. 985, 88th Gen. Assembly, 2d Sess. (1996); 1996 N.J. S.B. 276, 207th Legis., 1st Sess. (1996); 1995 Okla. H.B. 2054, 45th Legis., 2d Reg. Sess. (1996); 1995 R.I. S.B. 2241, Legis. Sess. (1996).

119. ARIZ. CONST. art. 28,§ 3(1)(a). For a list of exceptions, including the exception for health and safety, see ARIZ. CONST. art. 28, '' 3(2)(a)-3(2)(e).

120. Ariz. Op. Att'y Gen. I89-009 (1989).

121. Ariz. Op. Att'y Gen. I89-013 (1989); see also Califa, supra note 15, at 300-01 (describing interpretation of Florida county's English-Only ordinance). Before its repeal in 1993, the Antibilingual Ordinance of Dade County, Florida, had been construed by the county attorney's office as even forbidding Spanish-language recordings on the government's "Tel-Consumer hotline" aimed at Spanish-speaking consumers. See CRAWFORD, supra note 109, at 108.

122. Yniguez v. Arizonans for Official English, 69 F.3d 920, 930 (9th Cir. 1995) (en banc) (describing Attorney General's interpretation as attempt "to resurrect a facially unconstitutional measure"), cert. granted, 64 U.S.L.W. 3635, 3639 (U.S. Mar. 25, 1996) (No. 95-974).

123. Id. at 940-42. As a result of the Yniguez decision, Tennessee's English-Only law is also of dubious constitutional validity because its plain language encompasses the speech of government employees. See TENN. CODE ANN. ' 4-1-404 (1991) (stating that "[a]ll communications and publications, including ballots, produced by governmental entities in Tennessee shall be in English").

124. See, e.g., COLO. CONST. art. II,§ 30a; FLA. CONST. art. II,§ 9; HAW. CONST. art. XV,§ 4; NEB. CONST. art. I,§ 27; ARK. CODE ANN.§ 1-4-117 (Michie Supp. 1993); 5 ILCS 460/20 (1993); IND. CODE ' 1-2-10-1 (1993); KY. REV. STAT. ANN. ' 2.013 (Baldwin 1995); MISS. CODE ANN.§ 3-3-31 (1991); N.C. GEN. STAT. ' 145-12 (1990); N.D. CENT. CODE§ 54-02-13 (1989); VA. CODE ANN.§ 22.1-212.1 (Michie 1993).

125. Michele Arington, Note, English-only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 339 (1991) (arguing that courts should construe Official English laws as mere symbolic statements because of threat they pose to language minorities and because of concerns about fairness of initiative process employed to adopt some of these laws). But see Perea, supra note 109, at 367-68 (criticizing commentators who conclude that, as mere symbolic statements, Official English laws are constitutional and harmless, and arguing instead that racist cultural meaning of laws causes harm that offends Equal Protection Clause).

126. See Arington, supra note 125, at 339 (predicting that courts will apply overbreadth doctrine and interpret these laws narrowly).

127. Puerto Rican Org. for Political Action v. Kusper, 490 F.2d 575, 577 (7th Cir. 1973) (noting that despite provision, numerous agencies published some materials and provided some services in Spanish). After the passage of Colorado's Official English initiative, Colorado's governor and Denver's mayor ordered that government policies on bilingual assistance would remain in effect. See BARON, supra note 103, at 20-21; see also Moran, supra note 22, at 792 (stating that "[t]he limited impact of official English amendments is derived, in part, from their vagueness: confronted with doubtful language, state and local administrators have tended to preserve existing bilingual services").

128. CAL. CONST. art. 3,§ 6(c) (stating that§ 6(a) is also "intended to preserve, protect and strengthen the English language").

129. Id. ' 6(d). In 1990, Alabama voters approved an English language initiative substantially identical to the California provision. See ALA. CONST. amend. 509 (1990).

130. See Ballot Translations Legal, Attorney General Says, SAN JOSE MERCURY NEWS, May 23, 1987, at 7B (describing letter from California's Attorney General John Van de Kamp to sponsors of California's initiative explaining new law does not prohibit translations on voting ballots).

131. Gutierrez v. Municipal Court, 838 F.2d 1031, 1044 (9th Cir. 1988), vacated as moot, 490 U.S. 1016 (1989) (vacated when complainant employee quit); see also Yniguez v. Arizonans for Official English, 69 F.3d 920, 928 n.11 (9th Cir. 1995) (en banc) (observing that language laws of California and certain other states "appear to be primarily symbolic").

132. CAL. CONST. art. 3,§ 6(c) (stating that "[t]he Legislature shall enforce this section by appropriate legislation," and noting further that legislature should also do whatever acts are needed to preserve and enhance English in California).

133. Gutierrez, 838 F.2d at 1044 (noting that lack of legislative action shows symbolic nature of provision). It is possible, however, that California's law may have more than a symbolic effect even without legislative action to implement it. For example, consider the improbable case of a motor vehicle department that refuses to offer its driver's test in English. Presumably, a California resident could sue to take the test in English whether or not implementing legislation has been enacted.

134. The most recent proposal to "enforce" California's language provision was introduced to the California legislature in February, 1996. See 1995 Cal. A.B. 2183, Reg. Sess. (1995-96).

135. In Yniguez, the defendant, Arizonans for Official English, argued that the plaintiff employee sought the right to speak Spanish at will regardless of the primary language of the recipient of services. 69 F.3d at 943. The court rejected this assertion because it viewed the plaintiff's free speech claim as based on her more narrow desire to speak Spanish to only those Spanish-speaking claimants. Id.

136. To avoid conflict with the federal Voting Rights Act and other federal laws that protect language minorities, Arizona's Constitution permits the use of languages other than English when necessary to comply with federal law. ARIZ. CONST. art. 28,§ 3(2)(b).

137. See supra note 3 and accompanying text (discussing constitutional rights of criminal defendants).

138. The Ninth Circuit did note that the equal protection ramifications of the Arizona language law lent "strong[] support" to its holding. Yniguez, 69 F.3d at 948 (noting that burden under provision does not fall evenly over population). Professor Perea extensively develops the equal protection case against these laws. See Perea, supra note 109, at 367-71; see also Califa, supra note 15, at 330-46 (arguing that federal English-Only law would not survive Equal Protection Clause challenge); Daniel J. Garfield, Comment, Don't Box Me In: The Unconstitutionality of Amendment 2 and English-Only Amendments, 89 NW. U. L. REV. 690, 694-95 (1995) (arguing that English language laws adopted by initiative are unconstitutional because they affect fundamental right to participate equally in political process).

139. Although in Yniguez the Ninth Circuit struck down the entire Arizona law on First Amendment grounds, that law had no severability clause. 69 F.3d at 930-32 (stating text of provision). Moreover, the parties treated the legislation as a unit that would stand or fall as a whole. Id. As such, the decision does not necessarily reach language laws that do not prohibit government employees from dealing with non-English speaking constituents in a language other than English. Moreover, the Supreme Court may ultimately disagree with the Ninth Circuit's position.

140. Some reviewers of this Article have expressed doubts that these English language laws were intended to have the impacts on the consumer marketplace that this Article suggests. In rejecting the Arizona Attorney General's narrow interpretation of Arizona's English-Only law as "completely at odds" with its plain language, the Yniguez case is instructive in predicting the potential reach of these laws to all aspects of government. See supra notes 120-23. Certainly, these laws are not intended nor do they purport to govern private transactions such as those in the consumer marketplace. Nevertheless, their potential pervasive public reach holds implications for these private dealings as the discussion that follows suggests. In no way, however, does this Article intend to suggest that courts must or should construe the laws to the detriment of language minority consumers. Rather, these comprehensive English language laws are unconstitutional, either because they contravene the First Amendment if they restrict government speech or, as Professor Perea has urged, because they offend the Equal Protection Clause. See Perea, supra note 109, at 356-71.

141. The proposed federal Language of Government Act of 1995 provides that "[e]xcept where an existing law of the United States directly contravenes the amendments made by section 3 [declaring English the official U.S. language] (such as requiring the use of a language other than English for official business of the government of the United States), [the provisions of the proposed law] are not intended to repeal existing laws of the United States." S. 356, 104th Cong., 1st Sess.§ 2 (1995). The impact of this provision on the FTC door-to-door and used car rules discussed in Part I.C.4 is uncertain.

142. See Mapco Int'l, Inc. v. Federal Energy Regulatory Comm'n, 993 F.2d 235, 240 (Temp. Emer. Ct. App. 1993) (stating that administrative agency can only interpret statutes through regulations and decisions, not supersede them). In the absence of contradictory legislation, state agencies that are authorized to construe their state deceptive trade practice statutes could establish protections for language minorities. See Bender, supra note 94, at 650 (noting that more than half of states authorize rulemaking under these statutes).

143. S.C. CODE ANN. ' 1-1-697 (Law. Co-op. Supp. 1994); see also ARIZ. CONST. art. 28,§ 3(1)(b) ("No entity to which this Article applies [the legislative, executive, and judicial branches] shall make or enforce a law, order, decree or policy which requires the use of a language other than English.").

144. See infra Part III.C (discussing this potential claim under state unfair or deceptive trade practice acts).

145. See infra Part III.D.3 (discussing argument that merchant should have duty to make such disclosure). That discussion assumes an English-Only law does not constrain the court.

146. Elliot L. Judd, The Federal English Language Amendment: Prospects and Perils, in NOT ONLY ENGLISH 37, 39 (Harvey A. Daniels ed., 1990). But see Jeffrey L. Harrison, Class, Personality, Contract, and Unconscionability, 35 WM. & MARY L. REV. 445, 497 (1994) (noting, and later rejecting as permitting "undue advantage-taking," potential law and economics argument in favor of enforcing unconscionable bargains to motivate disadvantaged to read their contracts, become better educated, search for better terms in marketplace, and other similar goals).

147. E.g., Note, "Official English": Federal Limits on Efforts to Curtail Bilingual Services in the States, 100 HARV. L. REV. 1345, 1360 (1987) ("Given the overwhelming social and economic incentives that already exist to learn English, the deprivation of bilingual services seems at most a small added incentive." (citations omitted)). Even if multilingualism policies could lessen the immigrant's incentive to learn English, it is not fair for government to encourage assimilation by declaring open season on immigrants while they learn English. See Alfonso v. Board of Review, 444 A.2d 1075, 1085 (N.J.) (Wilentz, J., dissenting), cert. denied, 459 U.S. 806 (1982). Judge Wilentz stated:

Some might think that the rule of the majority [by finding no constitutional basis to receive notice of unemployment appeal rights in Spanish] provides an incentive to learn English. No such incentive is needed, for every day of their lives provides Hispanic-Americans with innumerable, often devastating reminders of their disadvantaged position resulting from the language barrier they face. There is no carrot in this decision, only a stick.

Id. Affirmative policies designed to promote the acquisition of English, such as English education programs, would better address this concern of the official language law proponents. See generally Califa, supra note 121, at 347 (arguing that real motivation of those promoting English-Only laws is "cultural insecurity" and prejudice, not assimilation).

148. See Ramirez v. Plough, Inc., 12 Cal. Rptr. 2d 423, 428-29 (Ct. App. 1992) (concluding that official language policy does not override consumer protection policies), rev'd on other grounds, 863 P.2d 167 (Cal. 1993). In Ramirez, defendant drug manufacturer argued that California's English language law abolished, for public policy reasons, a manufacturer's liability for failing to warn of product dangers in languages other than English. See generally Dillard, supra note 113, at 223 (discussing Ramirez and noting possibility of courts interpreting Official English amendment to constitution as support for assertion that legislature should not require use of languages other than English).

Looking back to the "harshly decided" cases of German-speaking immigrants by the Wisconsin Supreme Court in the 1870s to the early 1900s, Professor Macaulay has commented that the court's refusal to allow these immigrants to testify that their oral bargains differed from the written contracts served the social policy of integration by encouraging them to learn English. See Macaulay, supra note 48, at 1065-66 n.31 (citing cases from 1875-1901).

149. But see Perea, supra note 109, at 367-71 (arguing that Official English laws should not be treated as unobjectionable symbols of "national unity" because in fact they symbolize rejection of the Latino/a heritage and culture).

150. Arthur Allen Leff, Unconscionability and the Crowd-Consumers and the Common Law Tradition, 31 U. PITT. L. REV. 349, 356 (1970) (describing wasteful cycle that occurs when quality of goods is regulated on case-by-case basis). Addressing high pressure and deceptive door-to-door transactions, Professor Epstein has commented that the unconscionability doctrine may function "at best as a blunt instrument . . . and that it is better to adopt some legislative solution to control the problem." Richard A. Epstein, Unconscionability: A Critical Reappraisal, 18 J.L. & ECON. 293, 305 (1975). I have argued elsewhere for a statutory standard of unconscionability that defers to the courts to judge the fairness of interest rates. Cognizant of these concerns, my proposal was offered as an alternative to the offensive effects of usury laws on freedom of contract. See Bender, supra note 46, at 743-44. Translation laws, in contrast, have little impact on the parties' freedom to self-determine their substantive bargain.

151. Alan Schwartz, Unconscionability and Imperfect Information: A Research Agenda, 19 CAN. BUS. L.J. 437, 453 (1991) (arguing that because courts are not well suited to resolve market perfection problems, unconscionability doctrine should not be used often).

152. Id. at 441 (describing function of courts as one of interpreting contracts and function of legislature as responding to situations that create unfair consumer contracts). Schwartz argued elsewhere that administrative agencies can address information problems in consumer markets more effectively than courts. See Alan Schwartz & Louis L. Wilde, Intervening in Markets on the Basis of Imperfect Information: A Legal and Economic Analysis, 127 U. PA. L. REV. 630, 681 (1979) (listing three advantages as factfinding resources, potential power to order effective remedies to make markets more competitive, and more effective policing of disclosure schemes). Initiating a federal administrative solution to aid language minorities is problematic because of the plethora of federal agencies with jurisdiction over consumer transactions. For example, the FTC oversees finance companies, while the National Credit Union Administration oversees credit unions. Rather, federal legislation should be pursued with compliance enforced by the various federal agencies.

153. Moran, supra note 22, at 807.

154. Moran, supra note 22, at 807, 813.

155. Moran, supra note 22, at 808.

156. Moran, supra note 22, at 813.

157. Moran, supra note 22, at 808-09; see also Leff, supra note 150, at 357 (raising possibility that more would be changed by specific statutes, backed up by administrative regulations, as opposed to establishing consumer protection through expensive process of case law).

158. Moran, supra note 22, at 808.

159. In Yniguez, the Ninth Circuit relied on the distinction between positive and negative rights to reject the language law proponent's reliance on cases refusing to require government to provide bilingual services. Yniguez v. Arizonans for Official English, 69 F.3d 920, 936-37 (9th Cir. 1995) (en banc). In contrast to those cases seeking judicial establishment of a positive right, the employee in Yniguez sought relief from the gag that Arizona's language law placed on the free speech of government employees. Id.

160. Ramirez v. Plough, Inc., 863 P.2d 167, 175 (Cal. 1993) (determining that legislature is "able and willing" to specify in what instances it requires non-English language communications); see Lee, supra note 19, at 1121-22 (describing measures by various states requiring foreign language communications, such as Arizona's requirement that process servers provide notice of legal action in Spanish).

161. Ramirez, 863 P.2d at 174 (noting that California's legislature already required multilingual warning in other areas). But see Linda M. Baldwin, Note, Ramirez v. Plough, Inc.: Should Manufacturers of Nonprescription Drugs Have a Duty to Warn in Spanish?, 29 U.S.F. L. REV. 837, 867 (1995) (arguing that legislatures do not necessarily have superior technical and procedural resources to enact laws to protect language minorities from dangerous products).

162. Ramirez, 863 P.2d at 176.

163. Id. at 174-75.

164. Id. at 178 (quoting Carmona v. Sheffield, 325 F. Supp. 1341, 1342 (N.D. Cal. 1971) (concluding that unemployment claimants have no constitutional right to Spanish language services from government)), aff'd, 475 F.2d 738 (9th Cir. 1973)); see also State v. Olivo, 337 N.E.2d 904, 910 n.6 (Mass. 1975) (stating that if translating notices to vacate public housing into other languages is "desirable," then "it should be done by legislative action and with carefully delineated rules and guidelines. It is not appropriate for this court to enter so difficult and obscure an area without legislative mandate"); Alfonso v. Board of Review, 444 A.2d 1075, 1077 (N.J.), cert. denied, 459 U.S. 806 (1982). In Alfonso, the court stated:

The decision to provide translation [of unemployment appeal rights], encompassing as it does the determination of when a translation should be provided, and to whom, and in what language, is one that is best left to those branches of government that can better assess the changing needs and demands of both the non-English speaking population and the government agencies that provide the translation.

Id.

165. Jeffrey Davis, Revamping Consumer Credit Contract Law, 68 VA. L. REV. 1333, 1349 (1982) (stating that assumption that unique concerns exist locally for creditors and consumers is basis of theory that states are better suited to regulate in this area).

166. Id. at 1349.

167. Mark E. Budnitz, The Revision of U.C.C. Articles Three and Four: A Process Which Excluded Consumer Protection Requires Federal Action, 43 MERCER L. REV. 827, 851 (1992) (arguing that regulatory power in consumer protection area belongs at federal level).

168. See Kathleen Patchel, Interest Group Politics, Federalism, and the Uniform Laws Process: Some Lessons from the Uniform Commercial Code, 78 MINN. L. REV. 83, 148 (1993) (commenting that state legislative forum often favors special interest groups' concerns as opposed to interests of consumers).

169. Budnitz, supra note 167, at 850 (citing Edward Rubin, Efficiency, Equity and the Proposed Revision of Articles 3 and 4, 42 ALA. L. REV. 551, 588-89 (1991)).

170. See supra Part II.A (discussing potential for English language laws to impede consumer protection).

171. U.S. CONST. art. VI,§ 2, cl. 2.

172. For examples of existing federal preemption of state language laws in the areas of voting and bilingual education, see Laura A. Cordero, Constitutional Limitations on Official English Declarations, 20 N.M. L. REV. 17, 45-49 (1990) (discussing challenge to federal bilingual programs by state English-Only legislation).

173. CAL. CONST. art. III,§ 6.

174. See generally Kevin R. Johnson, An Essay on Immigration Politics, Popular Democracy, and California's Proposition 187: The Political Relevance and Legal Irrelevance of Race, 70 WASH. L. REV. 629 (1995) (commenting on California's initiative process that produced Proposition 187).

175. In 1995, California's legislature did require the state Insurance Commissioner to develop and distribute explanations of automobile insurance policies in Spanish and Vietnamese. See C.A. A.B. 1150, Reg. Sess. (1995-96) (specifying that these requirements impose no duty on insurers to provide insurance policies in non-English language).

176. Some commentators might express concern that a national language policy is unfair to businesses in states with small language minority populations. Language policies, however, could account for such variations. For example, legislation could be based on the federal Voting Rights Act that requires non-English voting materials in just those political subdivisions that meet a prescribed numerical threshold. See infra note 201 (noting minority population threshold of 10,000 or 5%). For a discussion of various approaches to decide the question of which language minorities should be protected by consumer protection reform, see infra Part II.D (outlining various state and federal statutory standards referred to as Language of Consumer Standard, Language of Bargain, Language of Solicitation, Variable Language Threshold, Fixed Language, and combination approaches). Moreover, a federal agency could be authorized to grant exemptions in those states with small language minority populations. See supra note 84 (discussing exemptions granted by FTC from its used car rule in these circumstances).

177. In addition to English language legislation, the 104th Congress is considering legislation to tighten immigration laws and limits. See S. 1394, 104th Cong., 1st Sess. (1995) (amending Immigration and Nationality Act). See generally Jennifer Gordon, We Make the Road by Walking: Immigrant Workers, the Workplace Project, and the Struggle for Social Change, 30 HARV. C.R.-C.L. L. REV. 407, 409 n.3 (1995) (describing various punitive federal and state measures directed towards immigrants).

178. See supra note 115 and accompanying text (discussing various federal English-Only legislative proposals).

179. S. 356, 104th Cong., 1st Sess.§ 4 (1995).

180. See infra Part II.D (noting approaches to language reform that may fail to protect every language minority).

181. See infra Part II.E (commenting on deficiencies in market perfection paradigm).

182. Cf. Neil G. Williams, Offer, Acceptance, and Improper Considerations: A Common-Law Model for the Prohibition of Racial Discrimination in the Contracting Process, 62 GEO. WASH. L. REV. 183, 225-28 (1993) (arguing that because current restrictive political trend makes congressional protection against racial discrimination unlikely, courts should expand common law of contracts to embrace broad antidiscrimination principle). Establishing positive rights of language minorities to receive translated consumer contracts might also be attacked as unduly burdensome to small business and generally as antithetical to the movement to curb government regulation of business.

183. See supra notes 39-40 and accompanying text (describing inducement of Mexican family to purchase overpriced water purification system).

184. DAVIS, supra note 11, at 183. In this scenario, the discrimination may stem from economic opportunism but it could also be driven by animus toward Latinos/as, particularly given the current political climate in which Spanish speakers are often viewed as undocumented immigrants. This Article generally does not attempt to discern the motive of the discrimination. Cf. Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV. L. REV. 817, 845-47 (1991) (concluding that discrimination encountered by blacks and women in empirical study of car market appears to be revenue-based, but also indicates animus).

185. 15 U.S.C. '' 1691(a)-(f) (1994).

186. See infra Part III.B.2 (noting application of ECOA to language-based practices).

187. See Anthony D. Taibi, Banking, Finance, and Community Economic Empowerment: Structural Economic Theory, Procedural Civil Rights, and Substantive Racial Justice, 107 HARV. L. REV. 1463, 1479-84 (1994) (urging reform of banking law to adopt community-empowerment paradigm instead of failed equality model in ECOA). An example of a positive right under the ECOA is the right to receive notification of the reasons for an adverse credit decision. 15 U.S.C.§ 1691(d).

188. William C. Whitford, Structuring Consumer Protection Legislation to Maximize Effectiveness, 1981 WIS. L. REV. 1018, 1042.

189. See John Boudreau, Effort to Outlaw Affirmative Action Promoted in California; Civil Rights Groups See Initiative as Political-Cultural Grenade, WASH. POST, Dec. 27, 1994, at A3 (discussing upcoming initiative in California to outlaw state government affirmative action programs).

190. See infra Part III.F.2.

191. See FERNANDO DE LA PEZA, DEMOCRACY OR BABEL: THE CASE FOR OFFICIAL ENGLISH 62 (1991) (suggesting that government could not provide services for one language group without providing them for all language minorities); Facts & Issues (U.S. English, Washington, D.C.) (urging that to add some languages other than English for government business discriminates against remaining languages) (on file with The American University Law Review).

192. BARON, supra note 103, at 31 (citing RONALD WARDBAUGH, LANGUAGE IN COMPETITION: DOMINANCE, DIVERSITY AND DECLINE 22 (1987)).

193. See Lee, supra note 19, at 1109 n.7 (noting numbers of American non-English language speakers based on 1990 census); cf. Ramirez v. Plough, Inc., 863 P.2d 167, 170 (Cal. 1993) (noting that litigants agreed, in product liability case, that more than 148 languages are spoken in the United States).

194. See Frontera v. Sindell, 522 F.2d 1215, 1219 (6th Cir. 1975). In Frontera, the court stated:

If Civil Service exams are required to be conducted in Spanish . . . what about the numerous other nationality groups which inhabit metropolitan Cleveland? These other nationality groups would have just as much right as Frontera [plaintiff] to have their examinations conducted in their own languages.

. . . This would, of course, be at the expense of the city . . . and would ultimately be saddled upon the harried taxpayers of Cleveland.

Id.; see also Guerrero v. Carleson, 512 P.2d 833, 837-38 (Cal. 1973) (rejecting constitutional challenge to English notices of welfare termination in part because of concern that to require notice in Spanish would entitle other language minorities to same accommodation), cert. denied sub nom. Guerrero v. Swoap, 414 U.S. 1137 (1974).

195. See generally MATT S. MEIER & FELICIANO RIBERA, MEXICAN AMERICANS/AMERICAN MEXICANS 21 (1993) (noting establishment of Spanish settlement in Nuevo MJxico (now part of New Mexico and other American states) nine years before English established Jamestown).

196. See Califa, supra note 15, at 293-95 (noting general perception among Americans that English is dominant language).

197. See Americans Speaking Languages Other Than English, available in WL, Cendata file, RN 05 99 02 120, Sept. 21, 1993.

198. See CAL. CODE REGS. tit. 16,§ 3840 (1985) (requiring immigration consultants to provide disclosures in English and language of client); MASS. REGS. CODE tit. 940,§ 8.05 (1987) (requiring mortgage brokers and lenders to take "reasonable steps," such as using interpreters or supplying translations, to communicate material facts of loan transaction in language borrower understands); cf. ILL. ANN. STAT. ch. 20 para. 1015/8.2 (Smith-Hurd 1993) (instructing that non-resident farmworkers must be given summary of Illinois labor laws in English and language in which worker is fluent). A Massachusetts regulation prohibits a door-to-door seller from inducing a purchaser to sign documents that the seller knows or has reason to know the purchaser "is unable to read" or does not understand. MASS. REGS. CODE tit. 940,§ 3.09(6) (1987). In order to comply with this regulation, sellers dealing with a language minority would have to translate any purchase documents.

199. The FTC door-to-door rule and state law counterparts to that rule use this approach. See 16 C.F.R.§ 429.1 (1995) (noting that sales contracts must be furnished in same language in which oral negotiations transpire); see also supra note 96 (citing state counterparts).

200. See, e.g., CAL. GOV. CODE ' 8219.5 (West 1992 & Supp. 1995) (requiring inclusion of translated disclosure in advertisements by non-attorney notary publics in languages other than English); CONN. AGENCIES REGS. ' 42-110b-21 (1975) (mandating non-English advertisements must make any required disclosures in that language); FLA. ADMIN. CODE ANN. r. 61B-8.003 (1992) (stating subdivision public offering statements in land, condominium, and mobile home sales must be translated into any language of advertisements); ILL. ANN. STAT. ch. 765, para. 85/6 (Smith-Hurd 1993 & Supp. 1995) (requiring that land and mobile home sales transactions must be translated into advertised language); NEB. REV. STAT. ' 69-1604 (1990) (stating that merchant must give cancellation notice form in door-to-door sales in language other than English if seller regularly uses that other language in any advertising); N.J. STAT. ANN. ' 17:16C-100(d) (West 1984) (requiring home repair contractors who advertise in language other than English to provide one receipt in other language); WIS. STAT. ANN.§ 423.203 (West Supp. 1994) (specifying same provision for cancellation notice in "consumer approval transactions").

201. The federal Voting Rights Act employs a variation of this approach. As reauthorized in 1992, that Act requires non-English voting materials if at least 10,000 or five percent of a state or political subdivision's voting age citizens are (1) members of a single language minority defined as American Indians, Asian Americans, Alaskan Natives, or those of Spanish "heritage," (2) unable to speak or understand English adequately for purposes of the electoral process, and (3) have a rate of failure to complete the fifth primary grade that exceeds the national rate. 42 U.S.C.§ 1973aa-1a (1994). The Act is also triggered if the political subdivision contains an Indian reservation on which more than five percent of the American Indian or Alaskan Native voting age citizens are members of a single language minority meeting the latter two requirements. Id. at (b)(2)(A)(i)(III).

202. See ARIZ. REV. STAT. ANN. ' 6-651(A) (Supp. 1995) (requiring consumer loan licensees to provide Truth in Lending disclosures in Spanish on request); id.§ 6-1411 (Supp. 1995) (mandating premium finance company licensees to provide Truth in Lending disclosures in Spanish on request); CAL. CIV. CODE§ 1799.91 (West 1992 & Supp. 1995) (requiring lenders to provide Federal Credit Practices Rule disclosure to consumer cosigners in English and Spanish).

203. For example, the FTC Used Motor Vehicle Trade Regulation Rule employs both the Fixed Language and Language of the Bargain approaches in requiring the delivery of warranty disclosures in Spanish whenever the merchant conducts a sale in Spanish. 16 C.F.R.§ 455.5 (1995).

204. See infra note 290 and accompanying text (noting cost-benefit considerations in translating consumer documents). When using the Language of the Consumer Standard, legislatures should also exclude those disclosures that are mass-mailed to prospective customers, such as the Truth in Lending disclosures that must accompany credit card solicitations. 15 U.S.C.§ 1637 (1994); cf. Charles F. Adams, Comment, "Citado a Comparecer": Language Barriers and Due ProcessCIs Mailed Notice in English Constitutionally Sufficient?, 61 CAL. L. REV. 1395, 1414 n.95 (1973) (urging that complainants send notice of legal proceedings in language of recipient when they know of language barrier, but that Spanish surname alone should not compel investigation of recipient's language ability).

205. See infra note 450 and accompanying text (discussing technological advances in translating). Admittedly, it might cost more to obtain these rare bargain-specific translations that merchants cannot use in multiple transactions.

206. Merchants probably would add some disclaimer to their contracts that the customer is able to understand English. It is uncertain what deference the law would give these disclaimers.

If a state law employs the Language of the Consumer Standard, lenders might be concerned whether probing the loan applicant's ability to understand English violates the Equal Credit Opportunity Act (ECOA). Regulations under the ECOA prohibit the creditor from inquiring about the applicant's race or national origin. 12 C.F.R.§ 202.5(d)(5) (1995). Lenders who probe the applicant's language abilities in order to help discern the applicant's race or national origin may violate the ECOA, but lenders under a Language of the Consumer Standard probably have a sufficient justification to probe for purposes of providing a translation. See infra Part III.B.2 (discussing standards for ECOA liability).

207. Cf. Sam Howe Verhovek, Mother Scolded by Judge for Speaking in Spanish, N.Y. TIMES, Aug. 30, 1995, at A9 (reporting remarks of Texas judge in child-custody case who likened Latina mother's conversations with her five year-old daughter in Spanish to child abuse, sparking fear that speaking Spanish could have legal consequences).

208. Another problem with the Language of the Consumer Standard is the uncertain point at which a language minority is sufficiently able to understand English to relieve the merchant of the duty to translate. If the consumer appears only partially able to bargain in English, but has some ability, the merchant may be concerned that he will offend the consumer if he questions her English ability.

209. Cf. ARIZ. REV. STAT. ANN. ' 6-651(A)(2) (Supp. 1995) (requiring consumer loan licensees to display conspicuous sign stating lender will provide federal Truth in Lending disclosures in Spanish on request); CAL. CIV. CODE§ 1632(c) (West 1985 & Supp. 1995) (requiring posting of Spanish-language notice of translation rights by persons regularly conducting business in Spanish). Because displaying signs in every language might undercut their effectiveness, any sign requirement should be limited to Spanish or to a few languages. Although this approach may seem contrary to the language neutrality of the Language of the Consumer Standard, it is a wise compromise to make that standard work better for the common language minority groups.

210. CAL. CIV. CODE§ 1632 (West 1985 & Supp. 1995).

211. Most of the state door-to-door sale statutes use this standard. See supra note 96 and accompanying text.

212. Cf. Yates Ford, Inc. v. Benavides, 684 S.W.2d 736, 739-40 (Tex. Ct. App. 1984) (finding sufficient evidence to support trial court finding that Spanish was primary language of oral sales presentation after reconstructing entire oral bargain for purchase of car). Unlike the Language of the Consumer Standard, it appears irrelevant under the Language of the Bargain Standard whether the consumer that bargains in another language is in fact fluent in English, although the merchant may point to the consumer's fluency in English to cast doubt on the consumer's claim that she struck the entire oral bargain in a language other than English. Of course, a statute might expressly call for a finding that the consumer was not fluent in English.

213. See ILL. ANN. STAT. ch. 815, para. 505/2N (Smith-Hurd 1993) (holding failure to provide copy of unexecuted contract in language of negotiation unlawful); 16 C.F.R.§ 455.5 (1995) (specifying when used car warranty disclosures must be provided in Spanish).

214. See OR. REV. STAT.§ 646.249(5) (1993) (requiring translation of rent-to-own disclosures if "any portion of the transaction is conducted in a language other than English").

215. In 1973, California's Governor Ronald Reagan vetoed a consumer translation bill requiring translations when the merchant advertised in Spanish. See 1973 Cal. A.B. 212, Reg. Sess. (1973-74). Apparently, Reagan did so because Spanish-language broadcasters feared they would lose Spanish advertising from merchants who did not wish to undertake the duty to translate. See Carl P. Blaine, Breaking the Language Barrier: New Rights for California's Linguistic Minorities, 5 PAC. L.J. 648, 671 (1974) (suggesting that legislature address broadcasters' concern by shifting focus from advertising to that of language used in conducting transaction, which legislature did in 1974 legislation).

216. See NEB. REV. STAT. ' 69-1604(3) (1990) ("A seller who in the ordinary course of business regularly uses a language other than English in any advertising or other solicitation of customers . . . or in any face-to-face negotiations . . . shall give the [home solicitation sale cancellation] notice . . . to a buyer whose principal language is such other language, both in English and in the other language."). The FTC's Used Motor Vehicle Trade Regulation Rule provides that merchants who "conduct" a sale in Spanish must translate the warranty disclosure. 16 C.F.R.§ 455.5 (1995). The FTC Staff Compliance Guidelines state that this requirement is triggered if the dealer expects to conduct sales in Spanish. 52 Fed. Reg. 18,552-02 (1987). To evidence this intent, the FTC will look to advertisements in Spanish language newspapers and telephone books, and to "Se Habla EspaZol" signs. Id.

217. Cf. Michael S. Jacobs, Toward a Process-Based Approach to Failure to Warn Law, 71 N.C. L. REV. 121, 153-54 (1992) (noting need to warn non-English speakers of product risks); Lee, supra note 19, at 1139.

218. See Lee, supra note 19, at 1139 ("An appropriate balance, therefore, is to subject manufacturers to liability, as a matter of law, when they purposefully avail themselves of non-English speaking markets and then fail to warn in those markets in the language consumers speak."). A Florida federal district court opinion suggested this approach in 1992. It concluded that the jury should decide whether English warnings were adequate when the injured Nicaraguan product users could not read English and the manufacturer had employed the Latino/a media to advertise the product. Stanley Indus., Inc. v. W.M. Barr & Co., 784 F. Supp. 1570, 1575-76 (S.D. Fla. 1992).

219. In the area of product warnings, one commentator suggested that labels with too many languages can intimidate or confuse consumers, causing them to ignore the disclosures. See Jacobs, supra note 217, at 153-54 (noting that purpose of failure to warn doctrine is to articulate risks intelligibly to consumers). By contrast, significant consumer transactions that involve individualized bargaining allow for transaction-specific translations that avoid this scenario.

220. In the case of the Fixed Language Standard, the threshold is implicit in the designation of one or more (but less than all) languages for protection.

221. The District of Columbia Court of Appeals held that a landlord's failure to deliver both English and Spanish notices to quit as required by a Fixed Language Standard was excused when the commercial tenant understood English. Ontell v. Capitol Hill E.W. Ltd. Partnership, 527 A.2d 1292, 1295 (D.C. 1987). Courts that construe this standard (or the Variable Language Threshold Standard), however, should refuse to consider whether the consumer in fact could understand English. If the legislature intends to add this decision point, it will do so explicitly. For a case that illustrates the court's often difficult task in assessing the consumer's language ability, see Chesire Mortgage Serv., Inc. v. Montes, 612 A.2d 1130, 1136 (Conn. 1992) (holding that trial court did not err in concluding that Puerto Rican borrowers understood English loan documents though one testified she could not read or write in any language and other testified he could speak English only a "little bit").

222. 16 C.F.R.§ 455.5 (1995); see also TEX. ADMIN. CODE tit. 7,§ 1.15 (1976) (requiring regulated loan licensees to provide Spanish loan contract disclosures when "all or a majority of the negotiations" are in Spanish).

223. FLA. ADMIN. CODE ANN. r. 2-9.005 (1995).

224. Presumably, the cautious merchant will need to determine the language of each of its customers to ascertain those languages that exceed the threshold. This inquiry raises the same problems as those under the Language of the Consumer Standard. See supra notes 206-09 and accompanying text (discussing how current anti-immigrant climate would undermine this inquiry process).

225. In addition, legislatures should avoid articulating the threshold in such vague terms as the language "prevalent" in the county. Cf. CAL. WELF. & INST. CODE§ 18915 (West 1991) (requiring food stamp materials be made available in English, Spanish, and any other "non-English language prevalent in each county"); see also 7 C.F.R.§ 1944.555 (1995) (stating FHA tenant grievance procedure providing translated notice to tenants when there is "concentration" of non-English speaking persons); 24 C.F.R.§ 50.25 (requiring notice of NEPA hearing will be bilingual if affected public is "largely" non-English speaking); 47 C.F.R.§ 76.75(a)(1) (stating that notice of cable television employee equal employment opportunity rights should be posted in Spanish when "significant percentage" of employees are Hispanic); OR. REV. STAT.§ 471.551 (1993) (requiring that tavern alcohol warning signs include language other than English if "significant number of patrons" use that language).

Another problem inherent in this Variable Language Threshold Standard is choosing the appropriate percentage or numerical threshold for protection. California's use of this standard suggests that the appropriate threshold may vary depending on the context. See CAL. EDUC. CODE§ 48985 (West 1993) (requiring 15% non-English speaking student body for bilingual public school notices); CAL. ELEC. CODE ' 1635 (West 1977) (providing that 3% non-English speaking population triggers efforts to recruit bilingual election officials); CAL. GOV'T CODE§ 53112 (West 1983) (requiring 5% non-English speaking population for bilingual emergency 911 operators); CAL. HEALTH & SAFETY CODE ' 1113 (West 1990) (requiring 10% non-English speaking population for bilingual family planning pamphlets); CAL. HEALTH & SAFETY CODE§ 1599.74 (West 1990) (invoking 1% threshold for purposes of translating nursing home patient bill of rights). To add to merchants' certainty, some administrative agency might provide notice to affected merchants when a percentage or numerical threshold is satisfied for a particular language minority group.

226. Although somewhat merchant-specific because of merchants' ability to dictate the language of the oral bargain, the Language of the Bargain Standard at least creates the expectation that the consumer will receive written translations whenever oral negotiations occur in a language other than English.

227. See Ramirez v. Plough, Inc., 863 P.2d 167, 176-77 (Cal. 1993) (refusing to require aspirin danger warnings in languages in which product is advertised because court believes legislature is appropriate forum to adopt this standard). But see Torres v. Sachs, 381 F. Supp. 309, 313 (S.D.N.Y. 1974) (ordering elections board to provide bilingual election officials at polls in election districts with 5% or more Puerto Rican population in order to assure this population's constitutional and statutory right to vote). This decision influenced the adoption of the federal Voting Rights Act standard. See supra note 201 (noting percentage thresholds requiring non-English voting materials).

228. See supra note 201 (discussing federal Voting Rights Act).

229. See supra note 202 (noting state statutes that require contract disclosure in Spanish).

230. See supra note 38 and accompanying text (discussing Florida law enacted to combat fraud on non-English speakers).

231. FERNANDO PEZALOSA, CHICANO SOCIOLINGUISTICS 24 (1980) (citing 1959 study of indigenous influences on language diversity).

232. Report on 1990 Census Results, supra note 28. In Guatemala, 32% of the population speaks an indigenous language. Michael Ross Fowler & Julie M. Bunck, Legal Imperialism or Disinterested Assistance? American Legal Aid in the Caribbean Basin, 55 ALB. L. REV. 815, 833 n.97 (1992).

233. For example, a Mexican Spanish-speaker would refer to an orange as a "naranja," but a Puerto Rican Spanish-speaker would use "china." Substantial differences in word meanings are often confined to nouns. Another example is the slang "nieve" which means ice cream in Mexico, but means snow among Spanish-speakers in other regions. See Marty Westerman, Death of the Frito Bandito, AM. DEMOGRAPHICS, Mar. 1989, at 28, 32 (describing impact of this diversity in dialects on Borden ice cream advertising campaign). See generally ROSAURA SANCHEZ, CHICANO DISCOURSE: SOCIO-HISTORIC PERSPECTIVES 98-138 (1983).

234.PEZALOSA, supra note 231, at 25.

235. See Robert D. Cooter & Edward L. Rubin, Orders and Incentives as Regulatory Methods: The Expedited Funds Availability Act of 1987, 35 UCLA L. REV. 1115, 1174 (1988) (referring to market control as "market displacing" and suggesting market stimulation as third model). One example of market stimulation is to take bank policies toward language minorities into account in approving the mergers of regulated lenders. Cf. Bender, supra note 46, at 809-10 (describing relevance of compliance with ECOA when national banks seek federal approval of acquisitions). In theory, market perfection regulation also stimulates the market to respond to the agenda of the informed consumer.

236. See Robin A. Morris, Consumer Debt and Usury: A New Rationale for Usury, 15 PEPP. L. REV. 151, 157 n.22 (1988) (referring to market perfection solutions as "those which perfect the ideal dialogue between sellers and buyers by helping buyers to negotiate more effectively or to comparison shop more easily").

237. Cooter & Rubin, supra note 235, at 1175 (acknowledging that disclosure was part of Expedited Funds Availability Act, designed to inform consumers when market fails to do so).

238. Cooter & Rubin, supra note 235, at 1178-79 (arguing that disclosure allows regulators to make efficient decisions and consumers to protect their own interests).

239. Cooter & Rubin, supra note 235, at 1174. For example, the FTC's Credit Practices Rule employs market control in outlawing various terms in consumer credit transactions such as confessions of judgment, wage assignments, and certain blanket security interests in household goods. 16 C.F.R.§ 444.2 (1995).

240. James P. Nehf, Effective Regulation of Rent-To-Own Contracts, 52 OHIO ST. L.J. 751, 758 (1991).

241. 15 U.S.C. '' 1601-1677 (1994).

242. Id. '' 1632, 1637, 1637a, 1638.

243. Id.§ 1647. The Truth in Lending Act (TILA) also employs what Professors Cooter and Rubin refer to as market stimulating strategies. See Cooter & Rubin, supra note 235, at 1174 ("A market stimulating statute is based on the premise that the market's operation can be restored, but only by imposing governmental rules. For such rules to restore, rather than displace, the market they must mimic some aspect of the market's operation that has been eliminated by the market failure."). For example, by excluding voluntary credit insurance premiums from its definition of the finance charge and therefore from the calculation of the annual percentage rate, TILA encourages lenders to offer optional rather than required credit insurance. See 15 U.S.C.§ 1605(b).

244. See 15 U.S.C.§ 1635 (allowing for right to rescind transaction during specified window of time). Cooling-off legislation reflects the market perfection model by allowing the consumer time to consider the bargain and to comparison shop. See Peter M. Juzwiak, Mr. Micawber Revisited: A Critique of the Credit Practices Rule, 64 S. CAL. L. REV. 417, 454 (1991) (describing cooling-off legislation and its benefit to market efficiency and consumers). This legislation also controls the substantive terms of the bargain by delaying the final bargain until the specified cooling-off period has passed. Id.

245. 15 U.S.C.§ 1601(a). See generally Jonathan M. Landers, Some Reflections on Truth in Lending, 1977 U. ILL. L.F. 669 (observing that TILA relies on consumer's own efforts to police marketplace).

246. See William C. Whitford, The Functions of Disclosure Regulation in Consumer Transactions, 1973 WIS. L. REV. 400, 470 (describing benefit of disclosure laws over regulation of substantive terms as "less complete interference with freedom of contract"); see also E. ALLAN FARNSWORTH, CONTRACTS§ 4.29, at 519 (2d ed. 1990) (remarking that legislatures have favored disclosure rather than control of terms "as more consistent with a market economy").

247. See Schwartz & Wilde, supra note 152, at 667 (criticizing regulations for forcing consumers to accept harsh terms or higher price in place of them); see also Howard Beales et al., The Efficient Regulation of Consumer Information, 24 J.L. & ECON. 491, 513 (1981) ("[I]nformation remedies allow consumers to protect themselves according to personal preferences rather than place on regulators the difficult task of compromising diverse preferences with a common standard.").

248. Bender, supra note 46, at 740 (discussing use of inflated cash prices to take advantage of unsuspecting consumers in order to compensate for restriction on interest rates).

249. Bender, supra note 46, at 728-32 (arguing that lowering rate ceiling merely increases number of borrowers "unable to qualify for credit at or below legal limit"); see also Nehf, supra note 240, at 781 n.133 ("To the extent that rate limits exclude high-risk individuals from obtaining credit, usury laws can actually hurt the poorer segments of the population.").

250. Beales et al., supra note 247, at 513; Schwartz & Wilde, supra note 152, at 668-71, 673; Whitford, supra note 246, at 470.

251. See Edward L. Rubin, Legislative Methodology: Some Lessons From the Truth-in-Lending Act, 80 GEO. L.J. 233, 239 (1991) (questioning effectiveness of Truth in Lending Simplification and Reform Act in informing consumers or encouraging effective credit shopping).

252. See Rubin, supra note 251, at 236 (stating that studies indicate that benefits from disclosure are "limited to the same upscale consumers who would manage perfectly well" absent legislation).

253. See Davis, supra note 166, at 1356 ("Recent studies have shown that consumers think disclosure statements are complicated, that they do not read the statements, and that they remain ignorant of much of their legal relationship with the creditor.") (citations omitted); Ndiva Kofele-Kale, The Impact of Truth-in-Lending Disclosures on Consumer Market Behavior: A Critique of the Critics of Truth-in-Lending Law, 9 OKLA. CITY U. L. REV. 117, 132 (1984) (noting studies that report consumer awareness of such disclosed terms as annual percentage rate correlates strongly to education and income).

254. See generally Jeffrey Davis, Protecting Consumers from Overdisclosure and Gobbledygook: An Empirical Look at the Simplification of Consumer-Credit Contracts, 63 VA. L. REV. 841 (1977) (discussing overwhelming effect of disclosure on consumers and suggesting simplification of process).

255. See Jonathan M. Landers & Ralph J. Rohner, A Functional Analysis of Truth in Lending, 26 UCLA L. REV. 711, 725 (1979) (describing usual physical setting as "extremely stressful" because salesperson is usually close to consumer, children or noise may distract the consumer, and there may be subtle urging of "need for speed").

256. See id. at 715 (stating that disclosures are usually made to consumers at point in time which they are not likely to comparison shop); Whitford, supra note 246, at 426 ("Even in the rare case in which a consumer actually reads the contract before signing, it must be remembered that he usually views himself as already morally committed.").

257. IRWIN S. KIRSCH ET AL., NATIONAL CTR. FOR EDUCATION STATISTICS, ADULT LITERACY IN AMERICA (1993).

258. Id. at xiv.

259. Id.

260. Eric J. Gouvin, Truth in Savings and the Failure of Legislative Methodology, 62 U. CIN. L. REV. 1281, 1300 (1994).

261. See supra notes 23-30 and accompanying text (discussing literacy rates of Latino/a population).

262. KIRSCH ET AL., supra note 257, at 13.

263. See supra notes 26-28 and accompanying text (noting disparity of results for studies of literacy rates among Spanish-speaking people).

264. KIRSCH ET AL., supra note 257, at 25.

265. See supra note 29 and accompanying text (discussing length of formal education in Mexico).

266. Cf. KIRSCH ET AL., supra note 257, at 35 (detailing 1992 statistics that state average years of schooling of white adults in America as 12.8).

267. The need for such a study of a particular language minority is especially acute when the legislature is inclined to adopt a Fixed Language Standard to protect that group.

268. Dwight Golann, Beyond Truth in Lending: The Duty of Affirmative Disclosure, 46 BUS. LAW. 1307, 1312 (1991).

269. See infra Part III.F.1 (discussing need for consumer education programs for language minorities).

270. See supra Part II.A (discussing impact of English language movement on consumer protection regulation).

271. See supra Part II.D (discussing various language-neutral and language-specific standards for extending protection to language minority consumers).

272. Another potential area for study is whether Spanish-Only Consumers who are illiterate in Spanish nonetheless can readily find someone literate in Spanish to accompany them in their significant consumer transactions. It is possible that language minorities can find such literate Spanish-speaking persons more easily than a bilingual person able to orally translate an English writing into Spanish.

273. See Landers & Rohner, supra note 255, at 722 (stating that atmosphere in which contracts are generally read prevents consumers from paying attention to particulars, and at best, consumers might quickly confirm that they are signing the type of contract they intended).

274. To aid this function, translation laws should adopt Florida's requirement that the translation also disclose in the same non-English language: "READ THIS FIRST. This is a translation of the document that you are about to sign." FLA. ADMIN. CODE ANN. r. 2-9.005 (1992).

275. Price control would also fall short of addressing those language minorities who might unknowingly agree to an unintended lease bargain. So long as they make some profit, merchants would still have an incentive to defraud language minorities into a lease bargain through the lure of low monthly payments in relation to a purchase.

276. See Landers & Rohner, supra note 255, at 727 (reporting penetration rates of over 90%).

277. See Landers & Rohner, supra note 255, at 727-28 (asserting that Truth in Lending requirements for term disclosures fail to achieve intended purpose of lowering cost to consumers).

278. See supra Part II.A.

279. See supra Part II.B.

280. See supra Part II.D.

281. See supra Part II.C.

282. See supra Part II.E.

283. Rubin, supra note 251, at 285-86.

284. See, e.g., 16 C.F.R.§ 444.2 (1995) (outlawing confessions of judgment, waivers of exemptions, and certain other clauses in consumer credit contracts).

285. See supra Part I.C.4 (discussing limited legislative requirements for translations).

286. See CAL. CIV. CODE§ 1632 (West Supp. 1995).

287. Id. ' 1632(d). But cf. 5000 Park Assoc. v. Collado, 602 A.2d 803, 805 (N.J. Super. Ct. Law Div. 1991) (establishing common law right to receive apartment rules and regulations in Spanish, based on large local Latino/a population).

288. See Rodolpho Sandoval, A Critical Analysis of the Cooling-Off Period for Door to Door Sales, 3 CHICANO L. REV. 110, 146 (1976) (criticizing California statute because it "fails to cover areas of importance to non-English speaking consumers").

289. Often, the need for disclosure regulation may survive the adoption of market control measures. For example, usury laws might provide an outside limit on interest rates, but consumers who deserve a rate lower than the rate ceiling would benefit from rate disclosures.

290. FLA. ADMIN. CODE ANN. r. 2-9.005 (1992). Another cost-benefit determination will involve whether to require translation of just those disclosures mandated by other law or of the written contract too. In loan transactions, for example, should translation extend beyond the TILA disclosure to encompass the promissory note and any security documents? Must the lender translate any subsequent foreclosure notice too? Because individualized foreclosure notices might be expensive to translate, the legislature might require a standardized warning of the need for translation. See UNIFORM LAND SECURITY INTEREST ACT§ 112(f) (1985) (requiring foreclosure and other notices to contain statement in languages designated by state enforcement agency that "[t]his is an important notice regarding your rights in real estate. Get it translated immediately"); cf. Reyes v. Household Fin. Corp., 173 Cal. Rptr. 267, 267-68 (Ct. App. 1981) (construing California's translation statute to extend to notice of repossession and deficiency under automobile loan).

291. OR. REV. STAT. ' 646.249 (1993).

292. CAL. CIV. CODE ' 1632(e) (West Supp. 1995).

293. See Teran v. Citicorp Person-to-Person Fin. Ctr., 706 P.2d 382, 384-87 (Ariz. Ct. App. 1985) (refusing to hold lender accountable for fraudulent interpretation of loan bargain given by employee of home improvement contractor to Spanish-Only Consumers where lender did not attempt interpretation or furnish interpreter); see also In re Hyun-Bok Chung, 43 B.R. 368, 369 (1984) (finding minority boutique owners bound by security agreement written in English because their English-speaking daughter present at signing should have interpreted agreement for them).

294. See CAL. CIV. CODE ' 1632(e) (West Supp. 1995) (defining interpreter in relevant part to mean "a person, not a minor, able to speak fluently and read with full understanding the English and Spanish languages").

295. Cf. Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165, 1191 (1993) (noting translator's practice consists of power to change text); Grace Leonard, Patents and Translation, 76 J. PAT. & TRADEMARK OFF. SOC'Y 561, 563 (1994) (noting importance of continuity in work with translator so that translator may become familiar with client's business requirements and style).

296. A reasonable exception to any translation statute would exclude persons not engaged in a trade or business. The judicial doctrines of fraud and unconscionability would still apply to overreaching by individuals in isolated transactions (e.g., sales of cars). See supra Part I.C (discussing fraud and unconscionability).

297. See supra Part II.B (advocating legislation as appropriate protection for language minorities against market's failure to translate their bargains and discussing appropriate legislative bodies to address issue); Part II.D (articulating various language-neutral and language-specific standards).

298. 49 Fed. Reg. 45,692, 45,711 (1984).

299. 16 C.F.R.§ 455.5 (1995). Claims by drug manufacturers of the difficulty in obtaining accurate translations of drug package insert warnings led the Food and Drug Administration to prepare a Spanish language insert for the industry. 46 Fed. Reg. 160, 163 (1981). The FDA ultimately abandoned its package insert requirements. See 47 Fed. Reg. 39,147-55 (1982) (revoking 46 Fed. Reg. 160).

300. CAL. CIV. CODE§ 1632(h) (West Supp. 1995). Presumably, to negate the inference that the government passed on the substantive fairness of the contract, the statute prohibits the merchant from advertising or representing that the government has verified the translation. Id.§ 1632(j).

301. Id. ' 1632(g).

302. This would likely be the case for victims of an Unintended Bargain where the interest rate, although more than the consumer would have incurred knowingly, is a fair rate given the consumer's credit standing.

303. See Bender, supra note 94, at 667-71 (discussing need for additional damage formulas under state unfair trade practice acts).

304. See supra Part II.E (discussing benefits and drawbacks of market perfection paradigm and use of disclosure laws to correct market's failure to provide necessary information to consumers).

305. E.g., 16 C.F.R.§ 429.1(b) (1995). Typically, a "door-to-door" sale refers to a transaction in which the seller personally solicits the sale at a place other than the seller's place of business. Id. note 1(a).

306. See 15 U.S.C.§ 1635 (1994) (establishing right to rescind for buyer before midnight of third business day after parties have entered into certain credit transactions involving buyer's principal dwelling as security interest).

307. See generally Byron D. Sher, The "Cooling-Off" Period in Door-to-Door Sales, 15 UCLA L. REV. 717 (1968) (discussing pros and cons of "cooling-off" period legislation and problems associated with drafting such legislation). Whether the benefits of cooling-off periods outweigh their delay of the bargain, however, has been called into question by evidence that consumers rarely exercise their cancellation rights. See John E. Bryson & Stephen S. Dunham, Note, A Case Study on the Impact of Consumer Legislation: The Elimination of Negotiability and the Cooling-Off Period, 78 YALE L.J. 618, 628-30 (1969) (discussing impact of Connecticut's "cooling-off" statute as limited because provision allowing rescission by midnight of day of sale is too short). Dean Kronman once remarked that legislatures rarely employ a cooling-off period because of its "antidemocratic" affect on the parties' freedom of contract and, therefore, that lawmakers "would never think of imposing a cooling-off period in every contractual relationship." Anthony T. Kronman, Paternalism and the Law of Contracts, 92 YALE L.J. 763, 795 (1983).

308. See Whitford, supra note 246, at 448-49 (suggesting that oral disclosure during precontract negotiations may be particularly effective to convey information to consumers with substandard reading abilities, but notes various drawbacks of oral disclosures such as merchant's ability to lessen their impact by tone of voice). Some federal and state statutes require oral disclosures with or instead of written disclosures. See, e.g., 16 C.F.R.§ 429.1(e) (1995) (requiring both written and oral notice of consumer's right to cancel transaction to comply with FTC door-to-door rule); CAL. BUS. & PROF. CODE§ 22502.1 (1995) (requiring ticket seller to inform purchaser of disclosures in writing and orally); S.D. CODIFIED LAWS ANN.§ 58-33-73 (1995) (requiring insurance company to make oral and written disclosure to insured regarding automobile glass replacement or repair services); UTAH CODE ANN.§ 57-23-6 (1994) (establishing that seller of real estate cooperative interest must make prescribed disclosures to purchaser both orally and in writing).

For dangerous product warnings, symbols might effectively convey information to consumers regardless of their language and literacy in that language. See Campos v. Firestone Tire & Rubber Co., 485 A.2d 305, 310 (N.J. 1984) (holding that symbols may be more appropriate than written warnings when many product users are illiterate). In other consumer settings, however, pictorial warnings appear to be of little practical value. For example, how would one illustrate a high interest rate loan?

309. Professor Nehf has expressed reservations about oral disclosures in consumer transactions because businesses might not easily refute false claims that they failed to provide the required oral disclosure. See Nehf, supra note 240, at 844 n.361 (explaining difficulty in enforcing oral disclosure requirements and offering alternative solutions). Retention in the lender's file of a copy of the tape (or a written transcript of the disclosure), however, would serve as the equivalent of a copy of a written disclosure form. Moreover, testimony of a practice of oral disclosure might overcome such claims. See Tashof v. FTC, 437 F.2d 707, 714-15 (D.C. Cir. 1970) (upholding FTC order requiring merchant guilty of deceptive practices to disclose its credit terms both orally and in writing despite merchant's fear of false claims).

310. See generally Michael S. Friman, Plain English Statutes: Long Overdue or Underdone?, 7 LOY. CONSUMER L. REP. 103, 106 (1995) (citing 10 states with this legislationCConnecticut, Hawaii, Maine, Minnesota, Montana, New Jersey, New York, Oregon, Pennsylvania, and West Virginia).

311. See infra Part III.F.1 (discussing consumer education programs as possible solution to some of language minority problems if programs are adequately funded and specifically targeted to meet needs of language minorities).

312. See supra note 182 and accompanying text (discussing how current political climate may not support legislation favorable to language minorities, but how courts may adopt broad antidiscrimination principle).

313. See infra Part III.B-F (discussing alternative approaches to reform aside from legislative initiatives, including using civil rights laws, unfair trade practice laws, doctrine of fraud, doctrine of unconscionability, or other institutional strategies).

314. 42 U.S.C.§ 1981 (1994).

315. Id.§ 1982. For a discussion of the statutory precursors to '' 1981 and 1982, see Mary J. Woodhead, Comment, Ethnic Origin Discrimination as Race Discrimination Under Section 1981 and Section 1982, 1989 UTAH L. REV. 741, 742-43. Courts typically construe '' 1981 and 1982 the same on such general issues as the need for intentional discrimination and the recoverable damages. Under their plain terms, however,§ 1981 protects noncitizens as "persons," but§ 1982 protects only "citizens." Compare 42 U.S.C.§ 1981(a) (using language "[a]ll persons") with id.§ 1982 (using language "[a]ll citizens").

316. Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 439-40 (1973) (noting historical interrelationship between '' 1981 and 1982); Jones v. Mayer Co., 392 U.S. 409, 413 (1968) (holding that§ 1982 bars public and private discrimination in sale or rental of property). As part of the Civil Rights Act of 1991, Congress added an express reference in§ 1981 to nongovernmental discrimination. Pub. L. No. 102-166,§ 101, 105 Stat. 1071, 1071-72 (1991) (codified as amended at 42 U.S.C.§ 1981 (1994)).

317. See Clark v. Universal Builders, Inc., 501 F.2d 324, 334 (7th Cir.) (allowing claim under§ 1982 alleging discriminatory housing market), cert. denied, 419 U.S. 1070 (1974). In the Civil Rights Act of 1991, Congress overrode the Supreme Court's refusal to extend§ 1981 to post-contract formation discrimination. See Pub. L. No. 102-166,§ 101, 105 Stat. 1071, 1071-72 (1991) (codified as amended at 42 U.S.C.§ 1981 (1994)) (defining "make and enforce contracts" to include the performance of contracts, thereby overruling Patterson v. McLean Credit Union, 491 U.S. 164, 179-80 (1989) (holding that racial harassment occurring in course of employment is not actionable under§ 1981))).

318. See Johnson v. Railway Express Agency, 421 U.S. 454, 460 (1975) (noting that§ 1981 entitles successful claimants to equitable and legal relief and, under certain circumstances, compensatory and punitive damages). Despite the prospect of similar remedies in a successful action for deceit, discussed infra Part III.D, an action under the Civil Rights Acts would enable the plaintiff to sue in federal court and to avoid certain elements of proof required in fraud actions, such as the reasonableness of reliance on the false representation.

319. 42 U.S.C.§ 1981 ("All persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . ."); id.§ 1982 ("All citizens . . . shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property.").

320. See General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 390 (1982) (finding that discriminatory purpose is required for§ 1981 claim); see also Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686, 687-89 (5th Cir. 1981) (holding that successful§ 1981 claimant must show discriminatory intent).

321. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609-13 (1987).

322. The lower courts had failed to reach a consensus. Compare Vera v. Bethlehem Steel Corp., 448 F. Supp. 610, 612-13 (M.D. Pa. 1978) (dismissing plaintiffs'§ 1981 claim against employer alleging discrimination based on their Puerto Rican background) with Ortiz v. Bank of Am., 547 F. Supp. 550, 559-68 (E.D. Cal. 1982) (allowing claim by Puerto Rican plaintiff and refusing to follow those courts that rejected national origin claims under§ 1981, instead adopting a "dynamic" definition of racial discrimination without identifying bright line between racial and national origin discrimination). See generally Gary A. Greenfield & Don B. Kates, Jr., Mexican Americans, Racial Discrimination, and the Civil Rights Act of 1866, 63 CAL. L. REV. 662 (1975) (arguing that Mexican Americans are protected under '' 1981 and 1982 as nonwhite racial group).

323. Saint Francis, 481 U.S. at 609-13.

324. Id. at 613; see also Shaare Telfila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987) (applying court's holding in Saint Francis in finding that "Jews and Arabs were among the peoples then considered to be distinct races and hence within protection of [' 1982]").

325. Saint Francis, 481 U.S. at 612. See generally Juan F. Perea, Ethnicity and the Constitution: Beyond the Black and White Binary Constitution, 36 WM. & MARY L. REV. 571, 604-07 (1995) (postulating that broad 19th century conception of "race" adopted for '' 1981 and 1982 claims could be more inclusive than treatment of ethnicity-based claims under Equal Protection Clause).

326. See Quintana v. Byrd, 669 F. Supp. 849, 850 (N.D. Ill. 1987) (refusing to dismiss§ 1981 claim brought by Cuban who alleged discrimination based on Hispanic ethnic characteristics).

327. See Franceschi v. Hyatt Corp., 782 F. Supp. 712, 720-21 (D.P.R. 1992) (holding that regardless of color or appearance, plaintiff may bring§ 1981 claim as Puerto Rican who, identified as such, was discriminated against because of his race).

328. See Hernandez v. Erlenbusch, 368 F. Supp. 752, 755 (D. Or. 1973) ("There is no question but that 42 U.S.C. '' 1981 and 1982 have been interpreted to ban the discrimination alleged [here].").

329. Id.

330. 401 U.S. 424 (1971).

331. Hernandez, 368 F. Supp. at 755 (citing Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)).

332. General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982) (holding that successful§ 1981 claim must demonstrate intentional discrimination).

333. Id.

334. See Vasquez v. McAllen Bag & Supply Co., 660 F.2d 686, 688 (5th Cir. 1981) (citing precedent illustrating that§ 1981 standard may be equated with purposeful discrimination standards of Fifth and Fourteenth Amendments), cert. denied, 458 U.S. 1122 (1982). Because claimants under the Equal Employment Opportunity Act need only prove disparate impact, employer language policies are best challenged under that Act. See generally BILL PIATT, LANGUAGE ON THE JOB 49 (1993). In Vasquez, the lower court dismissed the employee's claim under the Act because he failed to satisfy its jurisdictional prerequisites. Vasquez, 660 F.2d at 687.

335. See supra Part I.C.1 (providing example of Fraud Bargain as when non-English speaking consumer signs promissory note in English and merchant/lender orally represents rate of interest lower than rate in promissory note).

336. Ayres, supra note 184, at 859.

337. Ayres, supra note 184, at 862 (quoting Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1531 (7th Cir. 1990)).

338. Contract Buyers League v. F & F Inv., 300 F. Supp. 210, 216 (N.D. Ill. 1969), aff'd sub nom. Baker v. F & F Inv., 420 F.2d 1191 (7th Cir.), cert. denied, 400 U.S. 821 (1970); see also JONATHAN SHELDON, CREDIT DISCRIMINATION ' 4.2.10.3, at 85-86 (1993 & Supp. 1995) (explaining that practice of targeting minority groups for predatory loans (known as "reverse redlining") is actionable discrimination under '' 1981 and 1982, and other laws, even though "[o]n first blush it may appear contradictory to find a creditor to discriminate by offering minorities credit").

339. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) (concluding that Congress intended to protect persons discriminated against "solely because of their ancestry or ethnic characteristics"); see Juan F. Perea, Ethnicity and Prejudice: Reevaluating "National Origin" Discrimination Under Title VII, 35 WM. & MARY L. REV. 805, 832-34 (1994) (defining ethnicity as consisting of one's ethnic traits such as language).

340. The purveyor of a Fraud Bargain might argue similarly that it was seeking "suckers" who would not compare the written contract to the oral misrepresentations. It seems unlikely, however, that merchants will misrepresent the written bargain to all their customers. In contrast, it is likely that a business will offer unfair terms to all its customers, looking for "sucker" sales to victims white and nonwhite. Professor Ayres pioneered the concept of sucker pricing in describing an auto dealer's business as a "search for suckers"Creferring in that context to a search for customers willing to pay high markups for whatever reason. Ayres, supra note 184, at 854.

341. Cf. Note, supra note 147, at 1358 (explaining that government distribution of materials in English only is not purposeful discrimination under Equal Protection Clause because "there is no design to disadvantage those who do not understand the language").

342. 15 U.S.C. '' 1691-1691f (1994); SHELDON, supra note 338,§ 2.2.2, at 41. ECOA remedies are somewhat less forceful than those under '' 1981 and 1982 because of the statutory limit on punitive damages. See 15 U.S.C.§ 1691e (limiting punitive damages in individual ECOA actions to amount not greater than $10,000); Johnson v. Railway Express Agency, 421 U.S. 454, 460 (1975) (noting that under certain circumstances punitive damages may be awarded in '' 1981 or 1982 claim).

343. Shaare Telfila Congregation v. Cobb, 481 U.S. 615, 615 (1987); Saint Francis, 481 U.S. at 604.

344. 15 U.S.C.§ 1691(a)(1) (1994).

345. Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 276 (1990); see also Yniguez v. Arizonans for Official English, 69 F.3d 920, 947-48 (9th Cir. 1995) (en banc) ("Since language is a close and meaningful proxy for national origin, restrictions on the use of languages may mask discrimination against specific national origin groups or, more generally, conceal nativist sentiment.") (citations omitted); Califa, supra note 130, at 332-34 (discussing strict scrutiny and language-based classifications); Manuel del Valle, Language Rights and Due Process-Hispanics in the United States, 17 REV. J. U. INT'L P.R. 91 (1982) (discussing language-based discrimination); Wendy Olson, The Shame of Spanish: Cultural Bias in English First Legislation, 11 CHICANO-LATINO L. REV. 1, 28-32 (1991) (arguing that English-Only provisions are unconstitutional); Perea, supra note 109, at 357-60 (urging that courts recognize language discrimination as proxy for national origin discrimination); Rey M. Rodriguez, The Misguided Application of English-Only Rules in the Workplace, 14 CHICANO-LATINO L. REV. 67, 73-75 (1994) (asserting that language is proxy for national origin).

346. 29 C.F.R.§ 1606.7(a) (1995). An Office of Thrift Supervision rule articulates the same nexus between language and national origin. See 12 C.F.R.§ 571.24(c)(2) ("Requiring fluency in the English language as a prerequisite for obtaining a loan may be a discriminatory practice based on national origin.").

347. 717 F.2d 36 (2d Cir. 1983), cert. denied, 466 U.S. 929 (1984).

348. Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983) ("A classification is implicitly made, but it is on the basis of language, i.e., English-speaking versus non-English-speaking individuals, and not on the basis of race, religion or national origin."), cert. denied, 466 U.S. 929 (1984).

349. Frontera v. Sindell, 522 F.2d 1215, 1219-20 (6th Cir. 1975). See also Vialez v. New York City Housing Auth., 783 F. Supp. 109 (S.D.N.Y. 1991) (holding that failure of housing authority to provide termination of tenancy documents in Spanish does not implicate protected class for purposes of an equal protection challenge); Kathryn J. Zoglin, Recognizing a Human Right to Language in the United States, 9 B.C. THIRD WORLD L.J. 15, 18-24 (1989) (observing that courts generally have failed to accord suspect or quasi-suspect class status to language minorities in their equal protection claims); Andrew P. Averbach, Note, Language Classifications and the Equal Protection Clause: When Is Language a Pretext for Race or Ethnicity?, 74 B.U. L. REV. 481, 484-503 (1994) (examining holdings in equal protection claims brought by language minorities).

350. Soberal-Perez, 717 F.2d at 42.

351. Id.

352. 12 C.F.R.§ 202.6(a) n.2 (1995). The Federal Reserve Board has concluded that Congress intended to borrow the effects test from Title VII for use in ECOA claims. See Cherry v. Amoco Oil Co., 490 F. Supp. 1026, 1029 (N.D. Ga. 1980) (concluding that effects test is available to ECOA claimants). Although after the adoption of the ECOA the Supreme Court undercut the Title VII effects test, the Civil Rights Act of 1991 restored prior law. SHELDON, supra note 338,§ 9.5.2.2, at 154-55 (discussing ECOA commentary standards).

353. Because the ECOA disparate impact test is borrowed from cases under Title VII, the EEOC Title VII Guideline equating language with national origin is especially persuasive. See supra note 346 and accompanying text (discussing presumption in EEOC guidelines that employer English-Only rules constitute national origin discrimination). Although the Ninth Circuit regrettably has rejected that Guideline as "wrong," it rejected only the presumption that an employer's English-Only rule establishes the employee's prima facie case under the disparate impact analysis. See Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir. 1993) (finding that enactment of English-Only policy does not inexorably lead to abusive environment), cert. denied, 114 S. Ct. 2726 (1994). It did not reject the linkage between language and national origin, and remanded the case to allow monolingual Spanish-speaking employees the opportunity to establish the language rule's discriminatory impact, but without the presumption. Id.

Professor Perea has predicted that the Supreme Court will reject the EEOC Guideline because it may go beyond statutory language and legislative history. Perea, supra note 339, at 831. He concluded that existing protection against national origin discrimination in Title VII (and presumably under the ECOA too) does not adequately encompass discrimination based on a person's ethnic traits such as language. Id. Therefore, he urges reform of Title VII to expressly reach discrimination on the basis of "ethnic traits." Id.

354. See Sayers v. General Motors Acceptance Corp., 522 F. Supp. 835, 839 (W.D. Mo. 1981) (explaining operation of effects test in acceptance of credit applications). See generally Jeffrey I. Langer & Andrew T. Semmelman, Creditor List Screening Practices: Certain Implications Under the Fair Credit Reporting Act and the Equal Credit Opportunity Act, 43 BUS. LAW. 1123 (1988) (observing that paucity of ECOA litigation on effects test has left several unresolved questions such as level of justification needed to establish legitimate business need and what constitutes less discriminatory alternative).

355. Policy Statement on Discrimination on Lending, 59 Fed. Reg. 18,266 (1994) [hereinafter Policy Statement].

356. Id. at 18,268. Monolingual language minorities should be able to establish the requisite disparate impact. Cf. Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980) (employer's English-Only rule had no disparate impact on bilingual employee who could readily comply with rule if he so desired), cert. denied, 449 U.S. 1113 (1981). Courts should reject any argument that the borrower's ease in obtaining a third party to translate dispels any adverse impact. There is disparate impact simply because language minorities do not routinely obtain their own translations. Cf. Alfonso v. Board of Review, 444 A.2d 1075, 1080 (N.J. Sup. Ct. 1982) (Wilentz, J., dissenting) (highlighting difficulties language minorities face in obtaining translations from agencies, family, or friends), cert. denied, 459 U.S. 806 (1982).

357. Policy Statement, supra note 355, at 18,269.

358. Policy Statement, supra note 355, at 18,269.

359. The Policy Statement provides that the challenged practice need not adversely affect every member of a protected group to have a disparate impact. Policy Statement, supra note 355, at 18,269. Therefore, it is not fatal to the claim that some members of a particular race or national origin are fluent in English and therefore not susceptible to language fraud. Id.

360. See Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir. 1973) (holding that operation of state unemployment office business in English had rational basis because of additional burdens Spanish translations would impose on California's finite resources).

361. See supra notes 191-97 and accompanying text (singling out substantial language minority group for protection does not necessarily discriminate against others). Indeed, the Federal Reserve Board has determined that California's requirement that certain lenders translate certain loan documents into Spanish is consistent with the ECOA. See FRB Official Board Interpretation, 42 Fed. Reg. 22,861,§ 202.1102 (1977) ("A state requirement that contract terms be made more easily understandable for one group is . . . not inconsistent with the [ECOA].").

362. Cf. Pabon v. Levine, 70 F.R.D. 674, 675-77 (S.D.N.Y. 1976) (denying motion for summary judgment against challenge of state unemployment office language practices under federal law that prohibits race or national origin discrimination in programs receiving federal assistance because plaintiff alleged that state's failure to employ Spanish-speaking personnel and to provide bilingual forms and notices had discriminatory impact on Spanish-speaking persons).

363. 45 U.S.C.§ 3601 (1994).

364. Id.§ 3617; see SHELDON, supra note 338,§ 2.3, at 53-55 (providing overview of antidiscrimination provisions of Fair Housing Act). Regulations adopted under that Act provide that "the use of English language media alone or the exclusive use of media catering to the majority population in an area, when, in such area, there are also available non-English language or other minority media, may have discriminatory impact." 24 C.F.R.§ 109.25 (1995).

365. See SHELDON, supra note 338,§ 2.5, at 56, app. E (compiling state credit discrimination laws). The ECOA requires an election of remedies between the ECOA and any counterpart state law when the claimant seeks monetary damages. 15 U.S.C.§ 1691d(e) (1994).

366. E.g., CAL. CIVIL CODE§ 51 (West Supp. 1995) (stating that all persons in California are free and equal, no matter what ancestry or national origin, in all business establishments whatsoever); id. at§ 1812.642 (extending ECOA protection to rent-to-own transactions).

367. 15 U.S.C.§ 45 (1994).

368. Bender, supra note 94, at 640-41. See generally DEE PRIDGEN, CONSUMER PROTECTION AND THE LAW '' 3.03-.06, at 3-8 to -70 (1995) (discussing deceptive trade practices); SHELDON & CARTER, supra note 97,§ 3.2, at 85-90 (discussing state UDAP provisions).

369. See infra Part III.D.2 (contrasting interplay between common law fraud and UDAP action).

370. See infra Part III.D.3 (comparing Unfair and Unintended Bargains under common law and UDAP); see also SHELDON & CARTER, supra note 97, '' 4.2.13 to -.14, at 118-20 (discussing failure to disclose and other deceptive practices).

371. The UDAP may also codify the unconscionability doctrine to authorize courts to invalidate a bargain based on the substantively unfair term. See infra notes 418-19 and accompanying text (discussing more potent remedies available under UDAPs than under UCC and common law).

372. For discussion of the precedential value of FTC consent agreements, see SHELDON & CARTER, supra note 97,§ 3.4.4.3, at 101-02 (observing that courts use these agreements as guide to interpreting state UDAP laws).

373. SHELDON & CARTER, supra note 97,§ 3.4.4.3, at 101-02.

374. See In re Grand Spaulding Dodge, Inc., 90 F.T.C. 406, 408-10 (1977) (ordering car dealer to cease from failing to translate loan documents and disclosures into Spanish following negotiations in Spanish; this approach uses both Language of the Bargain and Fixed Language Standards); In re J. Kurtz & Sons, Inc., 87 F.T.C. 1300, 1312-34 (1976) (requiring appliance retailer to provide English/Spanish disclosures of customers' rights); In re Weil & Co., 87 F.T.C. 406, 407-10 (1976) (requiring furniture retailer to furnish buyers with Spanish language translations of contracts); In re Almacenes Hernandez Corp., 87 F.T.C. 400, 402-05 (1976) (requiring furniture distributor to cease failing to provide buyers with Spanish language translations); In re Busch's Jewelry Co., 87 F.T.C. 394, 396-99 (1976) (requiring jewelry merchant to provide Spanish-speaking customers with Spanish translations of sales documentation); In re Daby's Furniture Corp., 87 F.T.C. 389, 391-93 (1976) (requiring furniture seller to furnish Spanish translations of sales documents to Spanish-speaking customers and to display in store notices of customers' right to receive same); In re J & J Furniture Corp., 87 F.T.C. 383, 385-88 (1976) (requiring furniture distributor to display notices in store of customers' rights regarding Spanish translations); In re Joseph's Furniture Co., 84 F.T.C. 1310, 1316-27 (1974) (requiring furniture dealer to furnish buyers with Spanish and English contracts and disclosures following sales presentations in Spanish).

375. See In re Kelocor Corp., 93 F.T.C. 9, 15-22 (1979) (requiring finance company to provide translation of Truth in Lending credit insurance disclosures); In re Crown Trading Co., 86 F.T.C. 77, 81-85 (1975) (requiring television dealer to disclose Truth in Lending information to customers in language of sales presentation).

376. E.g., Grand Spaulding Dodge, 90 F.T.C. at 408-10 (requiring automobile dealer to furnish bilingual disclosures and documents).

377. See In re Lafayette United Corp., 88 F.T.C. 683, 704 (1976) ("[R]espondents shall not contract for the sale of any course of instruction . . . to any Spanish-speaking person who cannot read and write English proficiently, unless the sales contract or other agreement is itself set forth in the Spanish language."); In re Michael Yaccarino, 82 F.T.C. 279, 283-87 (1973) (requiring New Jersey automobile dealer to provide customers with contracts and credit disclosures printed in Spanish).

378. See, e.g., 16 C.F.R.§ 429.1 (1995) (declaring it "unfair or deceptive act or practice" to fail to translate contract into same language as used principally in oral sales presentation); CONN. AGENCIES REGS.§ 42-110b-21 (1975) (designating failure to include disclosures in same language as non-English advertising as unfair or deceptive practice); FLA. ADMIN. CODE ANN. r. 2-9.005 (1995) (making illegal failure to provide translations in certain consumer transactions); ILL. ANN. STAT. ch. 815, para. 505/2N (Smith-Hurd 1993) (declaring it "unlawful practice" to fail to provide translation when conducting retail transaction in language other than English); MASS. REGS. CODE tit. 940,§ 8.05 (1995) (treating mortgage broker's or lender's failure to interpret or translate material terms of loan transaction into language borrower understands as unfair or deceptive practice); cf. 49 Fed. Reg. 7740, 7778 n.79 (1984) (explaining that lenders should give cosigner disclosure required by 16 C.F.R.§ 444.3 (1994) in same language as underlying loan contract or they will commit unfair or deceptive practice).

379. See Bender, supra note 94, at 640-41 (explaining that most states expressly or implicitly authorize private enforcement of their UDAP laws, but that there is no private right under Federal Trade Commission Act).

380. See, e.g., Barber v. National Bank, 815 P.2d 857, 861 (Alaska 1991) (holding that loan is not good or service covered by state UDAP); Lamm v. Amfac Mortgage Corp., 605 P.2d 730, 731 (Or. Ct. App. 1980) (finding that Unfair Trade Practices Act does not apply to loans or extensions of credit); see also SHELDON & CARTER, supra note 97,§ 2.2.1.2, at 43-46 (discussing shortcomings of exemptions for credit and banking activities).

381. See PRIDGEN, supra note 368,§ 8.05[2], at 8-19 (noting that Congress exempted insurance industry from federal UDAP).

382. See SHELDON & CARTER, supra note 97,§ 2.2.6, at 52-54 (discussing UDAPs with regard to personalty related to real estate, residential leases, and landlord/tenant relations).

383. See PRIDGEN, supra note 368,§ 5.04[1], at 5-21 (noting in addition that some courts have implied this requirement). The loss condition could pose problems to victims of both Unfair and Unintended Bargains. Some unfair provisions may not result in an ascertainable loss of money until exercised. Cf. Orlando v. Finance One of West Virginia, Inc., 369 S.E.2d 882, 888 (W. Va. 1988) (holding that claimant failed to demonstrate ascertainable loss because lender had not yet attempted to enforce unfair waiver of homestead exemption). Undisclosed provisions that are fair, but unintended, might not result in the requisite loss even when enforced. Id.

384. For discussion of the degree of deference to federal standards of unfairness and deception in interpreting state UDAPs, see SHELDON & CARTER, supra note 97,§ 3.4.4, at 99-102; Bender, supra note 94, at 648-49. Cf. Ayres, supra note 184, at 865 (commenting that using UDAPs to reach discrimination against women and minorities in automobile purchases will require reconceptualization of what is considered unfair and deceptive).

385. See Bender supra note 94, at 645-50 (explaining Oregon law that conditions use of its "catch-all" on prior administrative rulemaking). In those states that proscribe "deceptive" practices generally but not "unfair" practices, the FTC translation consent agreements are instructive in their assumption that the failure to provide the translations is both unfair and deceptive. E.g., In re Grand Spaulding Dodge, Inc., 90 F.T.C. 406, 408-10 (1977) (holding that automobile dealer's practice of failing to provide Spanish-speaking customers with relevant bilingual disclosures is "unfair, misleading and deceptive").

386. See SHELDON & CARTER, supra note 97,§ 4.2.2.0, at 127-29 (discussing deception); id.§ 4.3.2, at 129-30 (discussing unfairness in context of FTC). Congress codified the 1980 FTC standard of unfairness in its 1994 reauthorization of the FTC. See Federal Trade Commission Act Amendments of 1994, Pub. L. No. 103-312,§ 9, 108 Stat. 1691, 1695 (codified at 15 U.S.C.§ 45(n)).

387. 15 U.S.C.§ 45(n) (1994).

388. SHELDON & CARTER, supra note 97,§ 5.2.1, at 187.

389. Ramirez v. Plough, Inc., 863 P.2d 167, 167 (Cal. 1993).

390. Id. at 176.

391. See supra Part I.C.2 (discussing fraud exception to duty to read); cf. Rivergate Corp. v. McIntosh, 421 S.E.2d 737, 739 (Ga. Ct. App. 1992) (rejecting claim of lessee that it was too dark to determine that he was not signing purchase agreement as he was led to believe because party cannot rely on misrepresentations when he can read and no fraud prevents him from reading contract). The merchant may be particularly inclined to raise this argument when its bilingual salesperson negotiates the oral bargain but has not been asked to translate the English written bargain. In the event that the salesperson assumes to translate the written bargain, courts must hold the merchant liable in fraud for a false translation.

392. See KEETON ET AL., supra note 53,§ 108, at 750 (rejecting contributory negligence as defense to intentional deceit).

393. See Duran v. Leslie Oldsmobile, Inc., 594 N.E.2d 1355, 1361 (Ill. App. Ct. 1992) (reviewing how Illinois UDAP eliminates common law fraud element that requires plaintiff to ascertain diligently accuracy of misstatements); Robertson v. Boyd, 363 S.E.2d 672, 676-77 (N.C. Ct. App. 1988) (holding that trial court properly dismissed common law fraud claim against seller because buyer did not make diligent inquiries and inspect for termite damage, but finding that claimant did state fraud claim under UDAP). But see Massey v. Thomaston Ford Mercury, 395 S.E.2d 663, 664-65 (Ga. Ct. App. 1990) (stating that claimant under Georgia UDAP cannot recover if she had ">equal and ample opportunity to ascertain the truth'" but did not do so diligently (quoting Delta Chevrolet v. Wells, 377 S.E.2d 250, 251 (1988))).

394. See supra Part II.C.3(1)-(2).

395. See Nicola W. Palmieri, Good Faith Disclosures Required During Precontractual Negotiations, 24 SETON HALL L. REV. 70, 124 (1993) (discussing exceptions to rule that party may remain silent).

396. Id. at 125.

397. Id.

398. See infra Part III.E (discussing unconscionability and recommending that legislatures reform UDAP laws to include provisions protecting against unconscionable conduct).

399. See id. (noting limit on remedies under unconscionability doctrine and urging legislation to expand those remedies).

400. See, e.g., Godrey v. Steinpress, 180 Cal. Rptr. 95, 109-11 (Ct. App. 1982) (holding that fraudulent nondisclosure of termites in real estate transaction is grounds for awarding punitive damages).

401. KEETON ET AL., supra note 53,§ 106, at 739. The Restatement (Second) of Torts articulates this exception as a duty to disclose facts basic to the transaction when one party to the bargain knows "that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts." RESTATEMENT (SECOND) OF TORTS§ 551(2)(e) (1977). Similarly, The Restatement (Second) of Contracts requires disclosure of facts necessary to correct "a mistake of the other party as to a basic assumption on which that party is making the contract and if non-disclosure of the facts amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing." RESTATEMENT (SECOND) OF CONTRACTS,§ 161(b) (1979).

402. See, e.g., Cohen v. Vivian, 349 P.2d 366, 367 (Colo. 1960) (holding that latent defect "known to the seller of a house" creates duty of disclosure); Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985) (holding that nondisclosure is equivalent to willful misrepresentation); Foust v. Valleybrook Realty Co., 446 N.E.2d 1122, 1125 (Ohio App. 1981) (same). See generally Serena Kafker, Sell and Tell: The Fall and Revival of the Role on Nondisclosure in Sales of Used Real Property, 12 U. DAYTON L. REV. 57 (1986) (noting that modern trend is to require disclosure rather than old doctrine of caveat emptor). See also RESTATEMENT (SECOND) OF CONTRACTS§ 161 cmt. d (1979) ("A seller of real or personal property is . . . ordinarily expected to disclose a known latent defect of quality or title that is of such a character as would probably prevent the buyer from buying at the contract price."). In the analogous area of products liability, courts require manufacturers to warn of certain product dangers. See RESTATEMENT (SECOND) OF TORTS ' 388 (1965) (stating that suppliers of chattels known to be dangerous are liable for physical harm that results). The First Circuit has held that a jury could consider whether a manufacturer must use symbols to warn of insecticide dangers, even if the government only required a written warning, when it should have foreseen that illiterate farmworkers would use its product. Hubbard-Hall Chem. Co. v. Silverman, 340 F.2d 402, 405 (1st Cir. 1965).

403. This duty to disclose should also extend to protect English-speaking consumers whom the merchant knows are unable to read English.

404. Arguably, courts should extend the duty to disclose to victims of Unintended Bargains when the business knows that the consumer does not intend a particular bargain. For example, a salesperson fluent in Spanish might overhear a conversation between two customers that they intend to purchase a car, not to lease one. In such a scenario, the merchant should disclose in Spanish that the bargain to be struck is a lease.

405. Cf. Smith v. First Family Fin. Servs., Inc., 626 So. 2d 1266, 1273 (Ala. 1993) (holding that lender must disclose all finance charges to borrower). See generally CALAMARI & PERILLO, supra note 56, at 367 (stating that actions "designed to hide the truth" may result in liability).

406. Cf. Heuter v. Coastal Air Lines, 79 A.2d 880, 883 (N.J. Super. Ct. App. Div. 1951) (holding that jury should decide whether airline intended to deceive Puerto Rican crash victim when he signed release written in English, in which he was not literate, despite absence of any affirmative misstatement).

407. See RESTATEMENT (SECOND) OF TORTS ' 551(2)(b) (1976) (stating that "[o]ne party . . . [has] duty . . . to prevent his partial or ambiguous statement of the facts from being misleading").

408. Supporting this result are the FTC consent agreements that declared bargains to be deceptive when the seller struck the oral bargain in Spanish, but the written contract and disclosures were in English. See supra notes 372-77 and accompanying text (discussing cases in which precedent was established that prohibits sellers from choosing one language for oral negotiations and another language for written agreement).

409. CALAMARI & PERILLO, supra note 56,§ 9-20, at 369-70.

410. Cf. Boonstra v. Stevens-Norton, Inc., 393 P.2d 287, 290 (Wash. 1964) (declaring that parties in fraud action had at least quasi-fiduciary relationship when one had limited knowledge of real estate transactions and of English, although court only implied that language was factor in decision).

411. Representations that the merchant is "serving the Latino/a community" may create the same expectation. See Lisa Leff, The Art of the DealCin Spanish; Car Dealerships Using Hispanic Salespeople to Pull in Customers, WASH. POST, Feb. 5, 1994, at B1 (describing advertising boasts of Maryland car dealer that it has been "serving the Latino community for 53 years").

412. Cf. Robert A. Hillman, Debunking Some Myths About Unconscionability: A New Framework for U.C.C. Section 2-302, 67 CORNELL L. REV. 1, 12 (1981) (arguing that when two parties bargain in Spanish, law should require seller to translate written bargain because buyer has relied on superior knowledge of seller).

413. E.g., ARIZ. REV. STAT. ANN.§ 44-1522(A) (1994); ARK. CODE ANN.§ 4-88-108 (Mitchie 1991); DEL. CODE ANN. tit. 6,§ 2513(a) (1993); ILL. ANN. STAT. ch. 815, para. 505/2 (Smith-Hurd 1993); KAN. STAT. ANN.§ 50-626 (1994); MD. CODE ANN., COM. LAW§ 13-301 (1990); MICH. COMP. LAWS ANN. '' 445.903(s) & (bb) (West 1989 & Supp. 1995); NEV. REV. STAT. ANN. ' 598.0923(2) (Michie 1994); N.J. STAT. ANN.§ 56:8-2 (West 1989); OR. REV. STAT.§ 646.608 (1993); S.D. CODIFIED LAWS ANN.§ 37-24-6(1) (1994); TEX. BUS. & COM. CODE ANN.§ 17.46(b)(23) (West 1987 & Supp. 1995).

414. See supra Part III.C (noting basic contours of UDAP laws and their applicability in language minority context).

415. Cf. Milbourne v. Mid-Penn Consumer Discount Co. (In re Milbourne), 108 B.R. 522, 533-38 (Bankr. E.D. Pa. 1989) (discussing "catch all" provision of Pennsylvania's UDAP law and concluding that lender's failure to disclose to borrowers disadvantages of its refinancing bargain, as compared to its new loan bargain, is unfair practice under "catch all").

416. See supra Part I.C.3 (discussing protection that unconscionability doctrine may afford language minorities).

417. See supra Part I.C.3.

418. See SHELDON & CARTER, supra note 97,§ 4.4.1, at 136 (counting 12 such UDAPs). Unconscionable conduct might also fall within a UDAP "catch-all" for unfair or deceptive practices. See id. at 136-37.

419. See SHELDON & CARTER, supra note 97, ch. 8, at 415-62.

420. U.C.C.§ 2A-108 (1990); see also Nehf, supra note 240, at 812 (noting that unlike§ 2-302, Article 2A "leaves room" for courts to award affirmative damages).

421. See supra notes 380-82 and accompanying text (discussing areas not covered by some UDAP laws including banking and insurance services).

422. See Bender, supra note 94, at 666-81 (detailing inadequacies of private remedy in Oregon's UDAP and proposing methods to improve protection of consumers).

423. See Gail Hillebrand, The Redrafting of UCC Articles 2 and 9: Model Codes or Model Dinosaurs?, 28 LOY. L.A. L. REV. 191, 193 (1994) (urging that reformers of Article 2 (and also Article 9 for secured transactions) adopt unconscionability provision in Article 2A).

424. See A & M Produce Co. v. FMC Corp., 186 Cal. Rptr. 114, 121-22 (Ct. App. 1982) (declaring that unconscionability has both procedural and substantive elements and that under California's general unconscionability statute modeled after UCC§ 2-302 "the mere fact that a contract term is not read or understood . . . will not authorize a court to refuse to enforce the contract [because] . . . commercial practicalities dictate that unbargained for terms only be denied enforcement where they are also substantively unreasonable").

425. UNIF. CONSUMER CREDIT CODE§ 5.108(4)(e), 7A U.L.A. 168 (1974).

426. UNIF. CONSUMER CREDIT CODE ' 6.111(3)(e), 7 U.L.A. 838, 839 (1968) (making reference to "inability to understand the language" as factor in finding of unconscionability).

427. UNIF. CONSUMER SALES PRACTICES ACT§ 4(c), 7A U.L.A. 241 (1971) (asking whether merchant "knew or had reason to know" that he took advantage of consumer's illiteracy or inability to understand language).

428. E.g., ARK. CODE ANN.§ 4-88-107 (Michie 1991 & Supp. 1993); COLO. REV. STAT.§ 5-6-111 (1992); IDAHO CODE ' 28-46-111 (Michie 1995); IDAHO CODE ' 48-603C (Michie Supp. 1995); IND. CODE ' 24-4.5-6-111 (1991 & Supp. 1994); IOWA CODE ANN.§ 537.5108 (West 1987); KAN. STAT. ANN. ' 16a-6-111 (1988); KAN. STAT. ANN. ' 50-627 (1994); ME. REV. STAT. ANN. tit. 9-A,§ 6-111 (West 1980); MICH. COMP. LAWS ANN. ' 445.903 (West Supp. 1995); OHIO REV. CODE ANN.§ 1345.03 (Anderson 1993); OKLA. STAT. ANN. tit. 14A,§ 6-111 (West 1983); OKLA. STAT. ANN. tit. 15,§ 761.1 (West Supp. 1995); OR. REV. STAT. ' 646.605 (1993); S.C. CODE ANN. ' 37-5-108 (Law. Co-op. 1989); W. VA. CODE ' 46A-7-109 (1995); WIS. STAT. ANN.§ 425.107 (West 1988); WYO. STAT. ' 40-14-611 (1993).

429. UNIF. CONSUMER CREDIT CODE§ 5.108 cmt. 4, 7A U.L.A. 167, 170-71 (1974).

430. These circumstances could entitle the consumer to relief under the doctrine of unilateral mistake. Under the Restatement (Second) of Contracts, a mistake as to a basic assumption that has a material adverse effect on the bargain will support rescission if the mistaken party does not bear the risk of the mistake and, among other alternatives, "the other party had reason to know of the mistake." § 153(b) (1979). By allocating the risk of the mistake wherever reasonable,§ 154 of the Restatement gives courts substantial discretion to decide which party bore that risk. Id.§ 154(c). Thus far, courts have had few occasions to consider claims of unilateral mistake resulting from a language barrier. Compare Teran v. Citicorp Person-to-Person Fin. Ctr., 706 P.2d 382, 388 (Ariz. Ct. App. 1985) (stating that if Spanish-Only Consumers failed to understand that their home was collateral for loan, their mistake "was unilateral only, and cannot afford ground for relief") with Oh v. Wilson, No. 26122, 1996 WL 38213, at *3 (Nev. Jan. 31, 1996) (ruling that trial court erred in awarding summary judgment to holders of release of claims when material fact existed as to whether insurer knew that limited English claimant failed to understand release).

The Restatement's rule for standardized contracts also grants relief from a term that the other party has reason to know is unintended. See RESTATEMENT (SECOND) OF CONTRACTS§ 211(3) (1979) ("Where the other party has reason to believe that the party manifesting such assent would not do so if he knew that the writing contained a particular term, the term is not part of the agreement.").

431. Although the 1974 UCC refers to "knowingly" taking advantage of a language barrier, the Uniform Consumer Sales Practices Act asks whether the other party "knew or had reason to know" that it was taking advantage of the language barrier. UNIFORM CONSUMER SALES PRACTICES ACT§ 4(c), 7A U.L.A. 241 (1971). In articulating a standard for when to refuse to enforce bargains marked by transactional incapacity, Professor Eisenberg preferred a standard that looked to what the other party had reason to know:

It might be appropriate to restrict the doctrine of transactional incapacity to cases in which the fully competent party had actual knowledge of the transactional incapacity; however, a promisee with reason to know has at least some culpability, and more important, a standard requiring actual knowledge might be too difficult to administer. When the evidence demonstrates a lack of actual knowledge, the lesser culpability might be taken into account in fixing the remedy.

Melvin Aron Eisenberg, The Bargain Principle and Its Limits, 95 HARV. L. REV. 741, 766 n.67 (1982). Professor Schwartz criticized the "reason to know" standard because he feared that merchants would avoid the cost of individualized investigation and refuse to deal with members of groups, such as "poor blacks and Chicanos," likely to be judged in some way incompetent to bargain. See Schwartz, supra note 62, at 1081-82 & n.64. It is unlikely, however, that the burden of providing translations to often predictable language minority groups will chase merchants out of this growing market. Moreover, civil rights laws will override their decision to oust Latinos/as from the marketplace. See supra Part III.B.1 (discussing application of federal civil rights acts to consumer transactions).

432. U.C.C.§ 2A-108(2) (1990). See generally Michael J. Herbert, Unconscionability Under Article 2A, 21 U. TOL. L. REV. 715, 723-28 (1990) (noting distinction between procedural and substantive unconscionability and questioning whether Article 2A goes beyond the existing doctrines of duress and fraud). Article 2A's reference to unconscionable inducement applies only to consumer leases. When confronted with an unconscionability challenge to an untranslated commercial bargain one court rejected the claim. See Gaskin v. Stumm Handel GmbH, 390 F. Supp. 361, 363 (S.D.N.Y. 1975) (enforcing forum selection clause in German language contract and stating that parties have duty to secure translation of language they do not understand). Courts should grant relief in appropriate circumstances, however, such as when the commercial party has been misled as to the contents of the untranslated bargain. See, e.g., D & W Cent. Station Alarm Co. v. Yep, 480 N.Y.S.2d 1015, 1017-18 (Civ. Ct. 1984) (relieving shopkeeper from rental agreement for burglar alarm system on grounds of unconscionability because she was led to believe that agreement terminated on her relocation of business and although agreement provided otherwise, clause was in fine print and shopkeeper could not read English).

433. A danger in extending the unconscionability standard to untranslated bargains that are objectively fair is that consumers might manipulate this standard to seek rescission of bargains whenever "buyer's remorse" sets in. For example, a language minority dissatisfied with an automobile purchase for reasons unrelated to the language barrier might invoke the unconscionability doctrine to urge falsely that she misunderstood some material term of the English bargain. On balance, however, this risk does not justify denying relief to victims of Unintended Bargains. Rather, before granting relief, courts should discern whether the consumer's dissatisfaction is truly language-based (what could be called "subjective substantive unfairness") or results from buyer's remorse. The thorny issue of buyer's remorse can be avoided when legislatures or agencies establish positive rights to translations in consumer transactions that carry sanctions, such as rescission, that do not depend on a showing of some objective loss of money.

434. See supra notes 198-209 and accompanying text (discussing Language of Consumer Standard as legislative model protecting any consumer whom merchant knows or has reason to know is unable to understand English).

435. See DAVID CAPLOVITZ, THE POOR PAY MORE 192 (1967) (arguing that consumer education is one of few solutions short of eradicating poverty); Whitford, supra note 246, at 452 (maintaining that both government and media should contribute more to consumer awareness and education).

436. See Bender, supra note 94, at 643-44 (describing declining enforcement resources for consumer protection efforts at federal level and in Oregon).

437. See CRAWFORD, supra note 109, at 17 (reporting that when California's English language initiative passed in 1986, more than 40,000 adults were on waiting list for English-as-a-second-language classes in Los Angeles alone); Barbara Yost, Immigrants on Waiting List for English Classes; U.S. Newcomers on Track to Crack Language Barrier, ARIZ. REP., Oct. 29, 1995, at G9 (reporting six-month waiting list for some English language classes in Phoenix area).

438. Susan Girardo Roy, Note, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263, 271 (1995).

439. See supra text accompanying note 208 (opining on possible impact of Proposition 187 on merchant-consumer relations).

440. See SHELDON & CARTER, supra note 97,§ 3.4.3, at 97-99 (counting 29 states).

441. Attorneys general should follow the examples from Connecticut, Florida, and Massachusetts discussed supra note 378. See generally Peter S. Canellos, AG Now Requires Lenders to Offer Bilingual Service, BOSTON GLOBE, Oct. 3, 1992, at 16 (Metro) (explaining origins of rulemaking by Massachusetts' Attorney General to protect immigrant borrowers).

442. Translation laws must be enforced or compliance will lapse. Recent incidents indicate that some California merchants appear to have ignored that state's translation law. See Penelope McMillan, Two Car Dealers Fined $215,000 in Fraud Cases, L.A. TIMES, Apr. 23, 1993, at B3 (discussing case of California car dealers who routinely negotiated sales in Spanish, but provided English contracts and were convicted of fraud and fined $215,000 for practice); Jennifer Warren, Suit Links Satellite-Dish Seller, Lender to Fraud, L.A. TIMES, Apr. 1, 1989, at B1 (reporting same practice by satellite-dish vendor). In order to determine compliance with translation duties, enforcement agencies should employ undercover operations similar to those used under antidiscrimination laws.

443. See generally Robert L. Bach, Building Community Among Diversity: Legal Services for Impoverished Immigrants, 27 U. MICH. J.L. REF. 639, 649-56 & n.48 (1994) (demonstrating, through use of statistics, that legal status of immigrants affects types of legal assistance they seek, detailing narrow sources of legal assistance used by undocumented immigrants for their consumer and other legal problems and further noting undocumented immigrants are ineligible for Legal Services Corporation-funded assistance). Even if California's Proposition 187 survives constitutional challenge (see discussion supra note 43), its denial of public services to undocumented immigrants does not appear to extend to public consumer protection enforcement activities. See CAL. EDUC. CODE '' 48215, 66010.8 (West Supp. 1995); CAL. GOV'T CODE§ 53069.65 (West Supp. 1995) (lacking any provisions that would curtail enforcement of public consumer protection efforts); CAL. HEALTH & SAFETY CODE§ 130 (West Supp. 1995); CAL. PENAL CODE '' 113, 114, 834b (West Supp. 1995); CAL. WELF. & INST. CODE ' 10001.5 (West Supp. 1995).

444. For example, the FTC offers several Spanish language publications on various unfair or deceptive practices. The U.S. General Services Administration publishes a comprehensive "Lista de publicaciones federales en espaZol para el consumidor" (list of federal consumer publications in Spanish).

Some state English language laws, however, may purport to prevent any government entities from producing publications or otherwise communicating in languages other than English. See TENN. CODE ANN.§ 4-1-404 (1991) ("All communications and publications, including ballots, produced by government entities in Tennessee shall be in English . . . ." ); see also supra Part II.A (discussing validity of these laws and their potential effect on consumer protection reforms).

445. The merchant's size may bear on its ability to adopt the proposed self-regulation model. For example, it may be unfeasible for a one-person small business to hire a bilingual salesperson no matter the frequency of its transactions with a particular language minority group. On the other hand, it may not be unreasonable to have available translations in these circumstances.

446. If possible, the employees should be members of the particular language group. Cf. Policy Statement, supra note 355, at 18,271 (pointing out that while fair-lending laws are not employment laws, lenders who employ few members of protected classes contribute to climate in which discrimination can occur, and suggesting strategies to facilitate hire of employees of protected classes).

447. For those documents provided to a merchant by a manufacturer, such as an owner's manual, the merchant can notify the maker of the need for translation. Alternatively, the merchant could orally translate any product hazards that are beyond the scope of the consumer's normal expectations.

448. Representing 2600 members in the real estate finance business, the Mortgage Bankers Association has developed a self-regulation strategy to promote home ownership among minorities and immigrants that incorporates similar goals. See Mary Sit, Simplifying Home Buying for Immigrants, BOSTON GLOBE, July 2, 1995, at A39 (describing strategy that includes promoting minority recruitment and distributing Spanish-language brochures on mortgage lending); see also Spanish Loan Apps Offered by Fannie, 5 MORTGAGE MARKETPLACE, Jan. 30, 1995, available on 1995 WL 7328863 (reporting publication by Fannie Mae of Spanish mortgage forms and glossary of real estate and mortgage lending terms).

449. See Lee May, Battle over Bilingualism-Opposition Intensifies to Ads Using Spanish, L.A. TIMES, Sept. 8, 1986, at 21 (noting widespread debate and controversy concerning use of advertisements in languages other than English and quoting U.S. English director as saying that advertising in Spanish ">makes it much more difficult to learn English'"); see also Cordero, supra note 172, at 51 (noting that English language movement advocates have used many techniques to oppose use of languages other than English in America, including initiating lawsuits, lobbying public officials, and protesting against companies such as Philip Morris, Pacific Bell, and McDonald's for providing directories, billboards, and menus in languages other than English).

450. See Michael Desmond, Windows Software for the Global Economy, PC WORLD, Mar. 1994, at 88 (describing advent of computer software programs designed to either translate language or help user learn and understand language); New Translation Service Now Available on CompuServe, M2 PRESSWIRE, Oct. 3, 1995, available on 1995 WL 10484904 (announcing on-line translation service offering unedited machine translation within minutes, or including human post-editing service for greater accuracy, at cost of $.03 per word and $.10 per word respectively).

451. Until recently, translation software did not address the problem of language minorities who are not literate in their native language. New "disk-to-voice" translation technology holds promise in these circumstances. See "Sound Text" Read-Aloud Peripheral Under $100, NEWSBYTES NEWS NETWORK NEWSBYTES, Sept. 9, 1994, available on 1994 WL 2414657 (describing new real-time translator that can turn typed English into vocalized Spanish).

452. See PIATT, supra note 334, at 27 (offering scenario of workers, managers, and customers of any language communicating through computer headphones that translate speaker's language into listener's language of choice). Technology advances might also undercut the efficiency/cost arguments of the English language movement urged to justify the conduct of government business in the single language of English. I hope to explore this area further in a subsequent article.

453. See Stephen Advokat, Bilingual AT&T, DET. FREE PRESS, June 10, 1992, at 1C (describing AT&T's Voice English/Spanish Translator system demonstrated at exposition in Seville, Spain, that recognizes and translates 450 words). Subsequently, the AT&T speech synthesizer technology has been used in a portable laptop real-time voice-to-voice translation system designed for use by police departments and hospitals. See AF Speech Translator Nears Market, TECH. TRANSFER WK., Jan. 16, 1996, available on 1996 WL 8159972 (noting that system does not yet have large vocabulary).

454. John F. Kennedy, Special Message on Protecting the Consumer Interest, 1962 Cong. Q. 458.

455. Id.

456. Id.

457. Id. at 458, 461.

458. 15 U.S.C. '' 1601-1677 (1994).

459. Kennedy's articulation of a right to safety is echoed by those commentators who have urged multilingual hazardous product warnings for language minorities. See Lee, supra note 19, at 1136-41 (noting increase in Americans whose primary language is one other than English and concluding that sellers who avail themselves of this segment of U.S. population have duty to warn in all relevant languages).