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Consumer Law

Payday, Vehicle Title, and Certain High-Cost Installment Loans

CFPB’s Final Payday Lending Rule Deems It an “Unfair” and “Abusive” Practice to Make Payday Loans Without Determining Borrower Ability to Repay.

Payday loans are high-cost,1×1. Lenders typically charge upward of fifteen dollars per hundred dollars borrowed for two weeks — resulting in annual percentage rates of roughly four hundred percent. What Is a Payday Loan?, Consumer Fin. Protection Bureau (June 2, 2017), https://www.consumerfinance.gov/ask-cfpb/what-is-a-payday-loan-en-1567/ [https://perma.cc/C3Y2-YFFG]. small-dollar2×2. A payday loan’s principal is ordinarily less than five hundred dollars. Id. loans to low-income, low-credit borrowers with a short term tracking the borrower’s pay cycle and a repayment system that involves the lender withdrawing funds directly from the borrower’s bank account.3×3. Pew Charitable Trs., Payday Loan Facts and the CFPB’s Impact 1 (Jan. 2016), http://www.pewtrusts.org/~/media/assets/2016/01/paydayloanfastfacts_factsheet.pdf [https://perma.cc/SE8Q-C7A9]. Until recently, the payday lending industry, which lends to roughly twelve million Americans annually,4×4. Id. was regulated primarily at the state level.5×5. Fifteen states and the District of Columbia effectively ban payday loans by imposing usury caps on interest rates or otherwise. Payday, Vehicle Title, and Certain High-Cost Installment Loans, 82 Fed. Reg. 54,472, 54,815 (Nov. 17, 2017) (to be codified at 12 C.F.R. pt. 1041) [hereinafter Final Rule]. Federally, rollovers of short-term debt are restricted for both loans to servicemembers under the Military Lending Act, 32 C.F.R. § 232.8(a)(1) (2008), and loans issued by credit unions under National Credit Union Administration regulations, 12 C.F.R. § 701.21(c)(7)(iii)(4) (2017). Empirical research assessing the effects of payday lending on consumers has produced mixed results: many studies find payday lending significantly harms consumers,6×6. See, e.g., Brian T. Melzer, The Real Costs of Credit Access: Evidence from the Payday Lending Market, 126 Q.J. Econ. 517, 550 (2011) (finding that access to payday loans “leads to increased difficulty paying mortgage, rent and utilities bills,” id. at 520); Jaeyoon Lee, Credit Access and Household Well-Being: Evidence from Payday Lending 28 (Sept. 9, 2017) (unpublished manuscript) (on file with Harvard Law School Library) (finding that access to payday loans increases suicide risk). others conclude lack of access to payday loans leaves consumers worse off,7×7. See, e.g., Adair Morse, Payday Lenders: Heroes or Villains?, 102 J. Fin. Econ. 28, 42 (2011) (finding that access to payday loans leads to decreases in home foreclosures and larcenies after natural disasters). and some find the impacts limited or difficult to assess.8×8. See, e.g., Neil Bhutta, Payday Loans and Consumer Financial Health, 47 J. Banking & Fin. 230, 230–31 (2014) (finding limited impact and collecting studies). On October 5, 2017, the Consumer Financial Protection Bureau (CFPB) finalized its “payday lending” rule,9×9. Final Rule, 82 Fed. Reg. at 54,472, 54,474 n.6. which requires that lenders determine consumers’ ability to repay (ATR) before issuing certain high-cost, small-dollar loans and places other restrictions on a broader set of covered loans.10×10. See id. at 54,472. In finding it an “unfair” and “abusive” practice to grant payday loans without assessing borrower ATR, the CFPB applied principles of behavioral economics (BE) to interpret its statutory authority to prevent “unfair, deceptive, or abusive act[s] or practice[s]”11×11. 12 U.S.C. § 5531(a) (2012). (UDAAPs) more broadly than other federal regulators have interpreted UDAAP authority precursors. BE-informed statutory interpretation like the Bureau’s here may serve as a basis for additional expansions of regulatory authority.

On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act12×12. Pub. L. No. 111-203, 124 Stat. 1376 (2010) (codified as amended in scattered sections of the U.S. Code). (Dodd-Frank). Dodd-Frank empowers the CFPB to promulgate rules to prevent UDAAPs and to take enforcement actions, such as investigation, adjudication, or litigation, in response to UDAAPs.13×13. See 12 U.S.C. §§ 5531(a)–(b), 5562–5564. In 2012, the CFPB started to regulate UDAAPs case-by-case via enforcement actions, including some against payday lenders.14×14. Adam D. Maarec & John C. Morton, A Survey of Activities Identified as Unfair, Deceptive or Abusive by the CFPB, 68 Consumer Fin. L.Q. Rep. 19, 19, 23, 25 (2014). On March 26, 2015, it announced it was initiating a rulemaking process to craft regulations protecting payday borrowers.15×15. Press Release, Consumer Fin. Prot. Bureau, CFPB Considers Proposal to End Payday Debt Traps (Mar. 26, 2015), https://www.consumerfinance.gov/about-us/newsroom/cfpb-considers-proposal-to-end-payday-debt-traps/ [https://perma.cc/7A3D-EG97]. The CFPB chose to target payday loans because they commonly lead to “debt traps.”16×16. Press Release, Consumer Fin. Prot. Bureau, CFPB Finalizes Rule to Stop Payday Debt Traps, (Oct. 5, 2017), https://www.consumerfinance.gov/about-us/newsroom/cfpb-finalizes-rule-stop-payday-debt-traps/ [https://perma.cc/BL7X-QLZB]. A debt trap results when a borrower is repeatedly unable to repay a loan and must reborrow, paying additional fees each time.17×17. Id. Such borrowers routinely pay more in cumulative fees than they originally received in credit.18×18. Pew Charitable Trs., supra note 3, at 1.

On July 22, 2016, the CFPB issued a Proposed Rule regulating payday lending, acting under its UDAAP authority.19×19. Payday, Vehicle Title, and Certain High-Cost Installment Loans, 81 Fed. Reg. 47,864 (proposed Jul. 22, 2016) (to be codified at 12 C.F.R. pt. 1041). The Proposed Rule defined “covered loans” as loans whose entire amount must be repaid within forty-five days (“covered short-term loans”), or whose annual percentage rate (APR) was higher than thirty-six percent and that involved either a lender with the ability to collect funds directly from the borrower’s account or the use of the borrower’s auto title as collateral (“covered longer-term loans”).20×20. Id. at 48,167–68 (to be codified at 12 C.F.R. §§ 1041.2(a)(6)–(8), 1041.3(a)–(d)). The Proposed Rule deemed it a prohibited “abusive and unfair practice” to make a covered short-term or longer-term loan without “reasonably determining” the borrower’s ability to repay the loan and meet basic living expenses without reborrowing within thirty days of repayment.21×21. Id. at 48,168–69, 48,172–73 (to be codified at 12 C.F.R. §§ 1041.4–.5, 1041.8–.9). It prescribed an ATR assessment methodology that involved identifying the borrower’s income and financial obligations.22×22. Id. (to be codified at 12 C.F.R. §§ 1041.5, 1041.9). Lenders could avoid the ATR requirement for covered short-term loans by allowing borrowers unable to repay the loan all at once to instead reborrow, as long as, among other requirements, the value of the loan principal decreased by one-third of the original loan value with each successive loan — effectively capping the “debt trap” cycle at three loans.23×23. Id. at 48,170–71 (to be codified at 12 C.F.R. § 1041.7). The ATR requirement also capped short-term loan sequences at three consecutive covered short-term loans. Id. at 48,169–70 (to be codified at 12 C.F.R. § 1041.6(a), (f)). The rule applied additional restrictions to all covered loans, including loans not subject to the centerpiece ATR requirement.24×24. For example, lenders were required to seek affirmative reauthorization to debit a borrower’s account after two unsuccessful attempts in order to reduce account closures and nonsufficient funds fees for consumers. See id. at 48,176–79 (to be codified at 12 C.F.R. § 1041.15). Importantly, the Proposed Rule exempted a number of generally less risky types of loans from the rule’s restrictions.25×25. Exemptions included loans to finance the purchase of a good that are secured by the good’s value, credit secured by real property, credit card loans, student loans, and certain pawn loans and overdraft services. Id. at 48,168 (to be codified at 12 C.F.R. § 1041.3(e)).

The Proposed Rule attracted well over one million comments.26×26. Payday, Vehicle Title, and Certain High-Cost Installment Loans, Regulations.gov (Oct. 7, 2016, 11:59 PM), https://www.regulations.gov/document?D=CFPB-2016-0025-0001 [https://perma.cc/5TED-MJ3N]. The comment period closed on October 7, 2016. Id. Lenders protested that the ATR requirement amounted to a ban because it would render their business model uneconomical,27×27. See, e.g., Letter from Jeremy T. Rosenblum, Counsel to Advance Financial, to Monica Jackson, Office of the Exec. Sec’y, Consumer Fin. Prot. Bureau 4 (Oct. 5, 2016) [hereinafter Advance Financial Letter], https://www.consumerfinancemonitor.com/wp-content/uploads/sites/14/2016/10/DOC184.pdf [https://perma.cc/R3XN-PYL4]; see also Editorial, President Cordray Strikes Again, Wall St. J. (Oct. 5, 2017, 7:25 PM), https://www.wsj.com/articles/president-cordray-strikes-again-1507245949 [https://perma.cc/2J3Z-UG6Z] (noting the rule “in effect allow[s] loans only to unprofitable customers with good credit”). and that the withdrawal of payday loans from the market would leave consumers without access to credit28×28. See, e.g., Advance Financial Letter, supra note 27, at 5. or reliant on more harmful alternatives.29×29. See, e.g., Final Rule, 82 Fed. Reg. at 54,841; see also Donald P. Morgan et al., How Payday Credit Access Affects Overdrafts and Other Outcomes, 44 J. Money Credit & Banking 519, 521 (2012) (“[U]sing payday loans to avoid overdrafts could save households money.”). Some lenders hinted at potential legal challenges to the rule, such as that the CFPB’s reliance on BE resulted in an overextended interpretation of its UDAAP authority.30×30. See Final Rule, 82 Fed. Reg. at 54,616. Some commenters also asserted the Proposed Rule violated Dodd-Frank’s prohibition on CFPB-imposed usury limits by effectively banning loans with annual percentage rates above thirty-six percent. Id. at 54,529. Consumer advocates, by contrast, suggested broader definitions of “lender” and “loan sequence.”31×31. Id. at 54,530–32. They also pointed to the strictest state regulations as models.32×32. For example, Colorado bans loans with terms shorter than six months. See id. at 54,638.

On October 5, 2017, the CFPB released its Final Rule. The rule narrows the subset of longer-term covered loans subject to the ATR requirement, perhaps responding to potential legal challenges flagged by commenters.33×33. See Jeremy T. Rosenblum, Preliminary Thoughts on the New CFPB Payday Loan Rule, Ballard Spahr: Consumer Fin. Monitor (Oct. 6, 2017), https://www.consumerfinancemonitor.com/2017/10/06/preliminary-thoughts-on-the-new-cfpb-rule/ [https://perma.cc/KSG9-BA3V]. Loans with terms longer than forty-five days are subject to the ATR requirement only if they require “balloon payments.”34×34. Final Rule, 82 Fed. Reg. at 54,872–73 (to be codified at 12 C.F.R. §§ 1041.2(a)(7), 1041.3(b)(2)). “Balloon payment” in the rule refers to a payment at least twice as large as any other under the loan. Id. In general, balloon payments are principal payoffs falling at the end of (rather than distributed throughout) a loan’s term. See id. at 54,475. Though longer-term covered loans without balloon payments are not subject to the ATR requirement, they remain subject to the rule’s other restrictions. See, e.g., id. at 54,878 (to be codified at 12 C.F.R. § 1041.8(b)) (payment transfer restrictions). The rule also expands the list of loan types exempted from the rule entirely, creating a safe harbor for loans with specifications tracking those outlined by the National Credit Union Administration for “alternative loans,”35×35. Id. at 54,874 (to be codified at 12 C.F.R. § 1041.3(e)(4)). and for covered loans from lenders making 2500 or fewer such loans annually that contribute less than ten percent of total lender revenue.36×36. Id. (to be codified at 12 C.F.R. § 1041.3(f)). The Final Rule requires compliance by mid-201937×37. Id. at 54,472. but faces political threats before then.38×38. See, e.g., Kate Berry, CFPB Signals Plan to Kill Payday Rule, Am. Banker (Jan. 16, 2018, 4:33 PM), https://www.americanbanker.com/news/cfpb-signals-plan-to-kill-payday-rule [https://perma.cc/B6QX-PEQX]. Nonetheless, other regulators have started reacting: the Office of the Comptroller of the Currency rescinded 2013 guidance to banks restricting deposit advances — an alternative source of short-term credit. Dep’t of the Treasury, Office of the Comptroller of the Currency, OCC-2017-0019, Rescission of Guidance on Supervisory Concerns and Expectations Regarding Deposit Advance Products (2017).

The payday lending rule is the CFPB’s first final rule to rely upon the Bureau’s UDAAP authority, but the Bureau did not start with a blank slate. Previously, other federal regulators promulgated rules under precursors to UDAAP authority — primarily the FTC, acting under “UDAP” authority to regulate “unfair” and “deceptive” acts and practices “in or affecting commerce.”39×39. See 15 U.S.C. § 45(a)(1)–(2) (2012). Since the 1980s, regulators acting under the “unfair” prong of UDAAP precursors have targeted harms not reasonably avoidable by the rational actor of neoclassical economics (NE). The CFPB’s interpretation of its UDAAP authority in the Final Rule expanded upon prior interpretations of UDAAP precursors in an important way: rather than confine itself to harms that rational consumers could not reasonably avoid or arising from market failures as defined by neoclassical economics, the Bureau incorporated concepts from behavioral economics, a newer and growing set of economic ideas, to interpret its UDAAP authority to extend to harms resulting from consumers’ decisions contrary to their own interests.

Before Dodd-Frank, regulators applied NE to identify “unfair” practices inflicting harms consumers could not reasonably avoid. Between 1914 and 1974, Congress expanded the FTC’s discretion over consumer protection, eventually granting it authority to promulgate rules to prevent UDAPs.40×40. See Am. Fin. Servs. Ass’n v. FTC, 767 F.2d 957, 965–67 (D.C. Cir. 1985). Beginning in 1980, the FTC consistently interpreted “unfair” using NE theory,41×41. In the 1970s, the FTC initiated a number of rulemakings targeting practices it identified as “unfair” on bases not dependent on NE, such as immorality or oppressiveness. See Matthew A. Edwards, The FTC and New Paternalism, 60 Admin. L. Rev. 323, 341–44 (2008). Such proposed rules provoked backlash in Congress and were seen as overreaching even by proponents of assertive consumer protection, id. at 341–42, and FTC policy turned decisively toward NE logic in a 1980 policy statement, see Fed. Trade Comm’n, Commission Statement of Policy on the Scope of the Consumer Unfairness Jurisdiction (1980), reprinted in Int’l Harvester Co., 104 F.T.C. 949, 1070 (1984); Edwards, supra, at 343–51. Congress later codified the 1980 policy statement’s definition of “unfair” in the FTC’s UDAP provisions, Federal Trade Commission Act Amendments of 1994, Pub. L. No. 103-312, § 9, 108 Stat. 1691, 1695 (1994) (codified as amended in scattered sections of 15 U.S.C.), and the CFPB’s UDAAP provisions, 12 U.S.C. § 5531(c) (2012). which treats consumers as rational actors with stable preferences who use available information to make decisions that maximize their welfare.42×42. See Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471, 1476 (1998). Adherents to NE often prioritize policies that require market actors to supply consumers with information on which to base rational decisionmaking.43×43. See id. at 1533. The FTC promulgated rules and brought enforcement actions accordingly, protecting “consumer sovereignty” by targeting “practices that impede[d] consumers’ ability to make informed choices, such as fraud, unilateral breach of contract, and unauthorized billing,”44×44. J. Howard Beales III & Timothy J. Muris, FTC Consumer Protection at 100: 1970s Redux or Protecting Markets to Protect Consumers?, 83 Geo. Wash. L. Rev. 2157, 2172 (2015). and by favoring disclosure requirements.45×45. See, e.g., Labeling and Advertising of Home Insulation, 16 C.F.R. § 460.17 (2015).

In other rules, the FTC proceeded under its “unfair” authority to address market failures that arose when market dynamics prevented competition from “maximizing benefits and minimizing costs” for consumers.46×46. See Trade Regulation Rule; Credit Practices, 49 Fed. Reg. 7740, 7744 (Mar. 1, 1984). In a representative rule banning “nonpossessory security interest[s] in household goods” as a remedy in consumer contracts (which allow for repossession by the seller),47×47. 16 C.F.R. § 444.2(a)(4) (1985). the FTC determined such provisions were not “[r]easonably [a]voidable” by consumers because sellers’ market power made it difficult to bargain for alternative remedies and buyers rationally disregarded provisions for default given its rarity.48×48. See Trade Regulation Rule; Credit Practices, 49 Fed. Reg. at 7744. The D.C. Circuit applied the same NE logic in upholding the rule under the FTC’s “unfair” authority. Am. Fin. Servs. Ass’n v. FTC, 767 F.2d 957, 976–78 (D.C. Cir. 1985). Other regulators promulgating rules under UDAP authority applied similar NE logic.49×49. See, e.g., Office of the Comptroller of the Currency, Advisory Letter No. 2004–10, Credit Card Practices (2004) (identifying three “unfair or deceptive acts or practices” consisting of insufficient disclosure of credit card terms, id. at 1). In promulgating ATR requirements in particular, regulators have refrained from clearly relying on explicit interpretations of “unfair” and have rested rules on statutory provisions beyond UDAP authority alone.50×50. In 2008, the Federal Reserve Board promulgated a final rule requiring ATR determinations for certain mortgage loans, 12 C.F.R. §§ 226.34(a)(4), 226.35(b)(1) (2009), under the Home Ownership and Equity Protection Act of 1994 (HOEPA), Pub. L. No. 103-325, § 152, 108 Stat. 2160, 2191–94 (1994) (codified as amended in scattered sections of the U.S. Code). But HOEPA imposes an ATR requirement by statute in the same section as it grants the Board UDAP authority, 15 U.S.C. § 1639(h), (l)(2)(A) (2006), and the UDAP provision includes authority to prohibit practices “designed to evade [this section’s] provisions,” id. § 1639(l)(2)(A). Thus, the ATR requirement does not clearly rest on the Board’s “unfair” authority. Notably, the ATR requirements promulgated pursuant to ATR statutory provisions in HOEPA, 12 C.F.R. §§ 226.34(a)(4), 226.35(b)(1), and the Credit Card Accountability Responsibility and Disclosure Act of 2009, Pub. L. No. 111-24, § 109, 123 Stat. 1734, 1743 (2009) (codified as amended in scattered sections of the U.S. Code), 12 C.F.R. § 1026.51 (2017), are arguably less onerous than the Final Rule’s ATR requirements, Final Rule, 82 Fed. Reg. at 54,874–76 (to be codified at §§ 1041.4–.5), which rest solely on UDAAP authority. Taken together, such rules did not establish precedent for using BE to interpret UDAP authority.

Nonetheless, predictions that the rise of BE would inform agency rulemaking predated the CFPB.51×51. See Edwards, supra note 41, at 324. BE stresses that consumers, even knowing all relevant information, take mental shortcuts — the results of cognitive biases — that lead systemically to irrational decisions that do not maximize their welfare.52×52. Id.; Jolls, Sunstein & Thaler, supra note 42, at 1476–78. The insight that such biases operate in predictable ways motivated an expansion of BE research aimed at building new models for consumer decisionmaking,53×53. Jolls, Sunstein & Thaler, supra note 42, at 1476–78. with significant policy implications. Indeed, then-Professor Elizabeth Warren’s call for a dedicated ex ante regulator of consumer credit products was in part based on consumer irrationality,54×54. Oren Bar-Gill & Elizabeth Warren, Making Credit Safer, 157 U. Pa. L. Rev. 1, 11–13 (2008). and later commentators suggested the CFPB should interpret its UDAAP authority using BE principles.55×55. See, e.g., Patrick M. Corrigan, Note, “Abusive” Acts and Practices: Dodd-Frank’s Behaviorally Informed Authority over Consumer Credit Markets and Its Application to Teaser Rates, 18 N.Y.U. J. Legis. & Pub. Pol’y 125 (2015).

But the CFPB’s pre–Final Rule UDAAP enforcement actions did not rest on BE-informed interpretive moves; those actions were consistent with narrower interpretations of “unfair” and “abusive” that did not hinge on consumer irrationality or misjudgment. Rather, they targeted practices rational consumers would struggle to avoid. For example, the Bureau initiated actions against financial service providers for “unfair[ly]” seeking to collect debts that were void under state law while telling consumers state laws did not apply,56×56. See Adam D. Maarec & John C. Morton, 2015 Survey of Activities Identified as Unfair, Deceptive, or Abusive Under the Dodd-Frank Act, Part Two, 70 Consumer Fin. L.Q. Rep. 51, 53 (2016). and threatening to contact borrowers’ friends, family, employers, or references in collecting debts.57×57. See id. at 60. The Bureau exercised its “abusive” authority, similarly, by targeting practices a rational actor would fail to avoid.58×58. See, e.g., id. at 53, 57, 61–62. Moreover, the CFPB rarely relied on findings of unfairness or abusiveness; it typically also alleged harder-to-dispute “deceptive” practices or other statutory violations that may have been sufficient to secure settlements. See, e.g., id. at 53, 55–63; cf. Am. Fin. Servs. Ass’n v. FTC, 767 F.2d 957, 979 (D.C. Cir. 1985) (“Our task of reviewing [FTC] unfairness precedent is hindered by the [FTC’s] cautious use of its unfairness authority as an independent basis for decision . . . .”). In contrast, the fact that payday lenders do not assess ATR is an advertised selling feature for low-credit customers, on display for the hypothetical rational actor.59×59. See Final Rule, 82 Fed. Reg. at 54,562 n.506.

The Bureau did apply BE principles in promulgating the Final Rule, when it concluded it is an “unfair and abusive practice” to make certain loans without determining borrower ATR.60×60. See id. at 54,874 (to be codified at 12 C.F.R. § 1041.4). A practice is unfair under Dodd-Frank if it is “likely to cause substantial injury” that is “not reasonably avoidable by consumers” and that “is not outweighed by countervailing benefits.”61×61. 12 U.S.C. § 5531(c)(1) (2012). The Bureau found injury based on financial harms resulting from debt traps. See Final Rule, 82 Fed. Reg. at 54,590–94. It relied on its cost-benefit analysis to clear the “countervailing benefits” hurdle. See id. at 54,602–12. The CFPB reasoned that harm caused by debt traps was not reasonably avoidable because borrowers systemically underestimate the likelihood they will be unable to repay without repeatedly re-borrowing, the number of times they will re-borrow, and the severity of the financial injuries likely to ensue.62×62. Final Rule, 82 Fed. Reg. at 54,597–98. Under the Bureau’s BE-informed analysis, a “market failure” existed not because consumers do not understand the loans’ simple repayment schedules, but because consumers are unable to judge the degree of risk.63×63. See id. at 54,596–98; see also id. at 54,568–75, 54,617, 54,816 n.1126. The Bureau proceeded under similar logic to satisfy Dodd Frank’s definition of “abusive” practices, emphasizing consumers’ cognitive biases.64×64. See id. at 54,617–20. “Abusive” practices “take[] unreasonable advantage of [consumers’] lack of understanding . . . of the material risks, costs, or conditions” of a product or their “inability . . . to protect” their own interests in selecting a product. 12 U.S.C. § 5531(d)(2)(A)–(B). The definition includes additional alternative prongs upon which the Final Rule did not rely. See id. § 5531(d)(1)–(2).

As the payday lending rule demonstrates, an agency expands its regulatory perimeter when it interprets its UDAAP authority using principles not only of neoclassical but also of behavioral economics. Such an agency, like the CFPB here, will identify “market failures” not only when market dynamics prevent (presumptively) rational consumers from making welfare-maximizing decisions, but also when consumers systemically choose to interact with products whose features they understand but that reduce welfare — as when they take out high-cost loans and end up in debt traps. Thus, it becomes an “unfair” practice to offer a product that harms consumers who systemically and irrationally choose to use it. The continued expansion of BE research, and its ongoing adoption by policymakers, will likely further enlarge BE-informed regulatory perimeters.65×65. See, e.g., Michael P. Vandenbergh et al., Regulation in the Behavioral Era, 95 Minn. L. Rev. 715, 716–17, 765–66, 779–81 (2011).

The CFPB has thus adopted an interpretation of its UDAAP authority that empowers it to prevent a broader set of consumer harms than did earlier regulators’ interpretations of UDAP authority. The CFPB’s BE-based interpretation may lead it to take up particularly tough empirical and normative questions more frequently.66×66. See Edwards, supra note 41, at 324–25, 369–70. Rather than weigh only the costs of compliance and enforcement against the benefit of restricting a practice that unambiguously harms rational actors, the Bureau may have to weigh the benefit of preventing harm to consumers who would otherwise systemically interact with a product in welfare-reducing ways (such as the many payday borrowers caught in debt traps) against the benefit that other consumers may derive from that product (some low-credit borrowers may use payday loans to cover emergency expenses and quickly pay them off).67×67. Consider the empirical debate over the net desirability of access to payday loans, see sources cited supra notes 6–8, in the context of lender assertions that the Final Rule effectively bans common loan types, see sources cited supra notes 27–29. And it may have to address any normative questions raised by the trade-off between the welfare of those sets of differently acting consumers. The Bureau’s assertion of authority to make such difficult determinations could raise the political temperature surrounding the already fiercely contested68×68. See Yuka Hayashi, Consumer Agency Is No Stranger to Controversy, Wall St. J. (Nov. 28, 2017, 5:22 PM), https://www.wsj.com/articles/consumer-agency-is-no-stranger-to-controversy-1511907774 [https://perma.cc/JTK4-6J6D]. agency.