Regulating Economic Opportunism in Post-Disaster Markets

Markets often falter during crises. Recently, the COVID-19 pandemic and the massive power grid collapse in Texas have caused market failures concerning medical supplies, paper goods, gasoline, electricity, and other necessities. By disrupting standard market conditions, disasters commonly lead to the supply of necessities being outpaced by demand. Some vendors seek to exploit this dynamic, increasing their prices exponentially and shamelessly engaging in disaster profiteering. While nearly every state has enacted anti-price gouging laws that proscribe such practices, these laws differ substantially from each other in what they prohibit and in how vigorously they have been enforced.While anti-pricing gouging statutes have existed for decades, the scale of the market disruptions witnessed in the past few years have put them into the public consciousness like never before. While this publicity has led to coverage in popular media and a surge of interest from scholars, these laws have been severely undertheorized within the legal academy.This Article addresses this gap. It begins by analyzing how states, the federal government, and other nations have regulated price gouging. It then reviews the types of exploitative conduct commercial actors have engaged in during recent disasters and the results of governmental enforcement actions. After reviewing the traditional legal and economic objections to anti-price gouging laws, it establishes the flaws in these arguments. Not only are they shown to be theoretically unsound, but they also are demonstrably undermined by recent qualitative data. It concludes by arguing that the adoption of specific reforms to anti-price gouging laws would help them protect consumers from exploitation while minimizing negative externalities