Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty.  The conventional wisdom is that federal law should resolve this problem by allowing the President to serve as a proxy for the “will of the people” in administrative rulemaking.  However, Professor Criddle suggests that a better solution for promoting popular representation in agency rulemaking is to extend private fiduciary duties to administrative agencies.

In this Note, Francis examines the payday-loan industry and the existing and proposed regulations that control it. Looking through the lens of behavioral law and economics, she illustrates how some borrowers systematically underestimate their future borrowing, leading to unexpected rollover loans and imposing substantial and unnecessary costs on these borrowers. The Note also demonstrates how lenders are able to exploit these borrowers’ underestimation biases to aggravate the costs incurred in the "debt trap."