Law Commons^™

At The Nexus Of Antitrust & Consumer Protection, Luke Herrine

Utah Law Review

This Essay uses Section 5 of the Federal Trade Commission Act to examine the theoretical and practical relationship between antitrust and consumer protection law. It argues that, since roughly 1980, there has been a hegemonic “neoliberal” framework, one that has in recent years been challenged by an emerging “moral economy” framework. The neoliberal framework conceptualizes antitrust as preventing firms from conspiring to throttle output, with a focus primarily on consumers’ interests in low prices, and consumer protection as making consumers informed, rational, and able to switch between competitors with relatively low cost. The moral economy framework conceptualizes both areas of …

After Ebay: Valid Patents And The Economics Of Post-Trial Judicial Options, J R. Kearl

Utah Law Review

The Supreme Court’s eBay decision creates enormous uncertainty about whether the owner of a valid patent has an exclusive right in the face of actual infringement. The Court’s “traditional equitable” criteria for an injunction fail to consider the context where injunctive relief may be warranted: namely, litigation dealing with patents where a jury or court has found the in-suit patent to be valid and infringed and where, barring an injunction, there will be post-trial infringing uses by the defendant. Specifically, it is highly unlikely that a patent holder can show that it will be irreparably harmed or not be made …

The New Roaring Twenties: The Progressive Agenda For Antitrust And Consumer Protection Law, Jorge L. Contreras

Utah Law Review

It is an opportune moment to consider the trajectory of antitrust law in the United States. We are witnessing today an inflection point in both federal and state antitrust enforcement and a growing skepticism by courts of the doctrinal orthodoxy that has characterized the antitrust jurisprudence of the last half century.

Q&A With Lina Khan, Chair Of The U.S. Federal Trade Commission And Mark Glick, Professor Of Economics At The University Of Utah, Lina M. Khan

Utah Law Review

No abstract provided.

Coercive Rideshare Practices: At The Intersection Of Antitrust And Consumer Protection Law In The Gig Economy, Christopher L. Peterson, Marshall Steinbaum

Utah Law Faculty Scholarship

This Essay considers antitrust and consumer protection liability for coercive practices vis-à-vis drivers that are prevalent in the rideshare industry. Resale price maintenance, nonlinear pay practices, withholding data, and conditioning data access on maintaining a minimum acceptance rate all curtail platform competition, sustaining a high-price, tacitly collusive equilibrium among the few incumbents. Moreover, concealing relevant trip data from drivers is both deceptive and unfair when the platforms are in full possession of the relevant facts. In the absence of these coercive practices, customers too would be better off due to platform competition, which would lower average prices by sharpening competition …

Consumer Primacy: A Dynamic Model Of Corporate Governance For Consumer- Centric Businesses, Sung Eun (Summer) Kim

Utah Law Review

This Article challenges the conventional view that corporate law should principally strive to increase shareholder value, arguing that rather, corporate law should principally strive to ensure consumer satisfaction in consumer-centric businesses. Consumer-centric businesses are defined here as businesses in which consumers occupy a central role in the creation and distribution of corporate value and risks. For example, a consumer of a crowdfunded product does not take shares, but provides capital and product-design feedback during the early and critical stages of the product’s development. A consumer using a ridesharing app makes significant contributions to building the platform and provides real-time ratings …

Crisis At The Pregnancy Center: Regulating Pseudo-Clinics And Reclaiming Informed Consent, Teneille R. Brown

Utah Law Faculty Scholarship

Crisis Pregnancy Centers (CPCs) adopt the look of medical practices — complete with workers in scrubs, ultrasound machines, and invasive physical exams — to deceive pregnant women into thinking they are being treated by licensed medical professionals. In reality, CPCs offer exclusively Bible-based, non-objective counseling. Numerous attempts to regulate CPCs have faced political roadblocks. Most recently, in NIFLA v. Becerra, the Supreme Court held that state efforts to require CPCs to disclose that they are not medically licensed are unconstitutional violations of CPCs’ First Amendment right to free speech. In the wake of that decision, pregnant women in crisis — …

The Path To Standing: Asserting The Inherent Injury Of The Data Breach, Jennifer M. Joslin

Utah Law Review

Data breaches are on the rise as consumers continue to exchange personally identifiable information for goods and services in sectors from retail to healthcare. In the aftermath of a data breach, it has been difficult for victims of the breach to establish Article III standing to sue in federal courts. The primary hurdle for those seeking a remedy for the theft of their data has been showing that they have suffered an injury-in-fact. Plaintiffs typically assert an injury based on the increased risk of identity theft following a breach. However, courts have divided on whether such an injury satisfies the …

American Usury Law And The Military Lending Act, Paul Kantwill, Christopher L. Peterson

Utah Law Faculty Scholarship

In 2006 Congress adopted the Military Lending Act (“MLA”) to protect active duty military service members and their families from high-cost, predatory loans. The core provision of the statute is a usury limit capping interest rates at no more than 36 percent per annum. The United States Department of Defense finalized regulations implementing the MLA in 2007 and then later issued substantially revised regulations in 2015. The MLA is America’s first modern, national usury law that is applicable to all types of creditors and was adopted after the evolution of our national credit card market. After over a decade, the …

Federal Student Aid: Can We Solve A Problem We Do Not Understand?, Deanne Loonin, Julie Margetta Morgan

Utah Law Review

At over $1 trillion, with more than 8 million borrowers in default, the federal student loan program is in trouble. There is no question that policymakers will do their best to fix it in the coming years. The only question is whether they will have the evidence they need to make informed judgments about what ails our student loan program, and what can cure it.

In the coming years, advocates, policymakers, and researchers should focus on gathering data and information on all possible causes of the failures in the student loan program. As the previous Part describes, the public has …

The Economics Of American Higher Education In The New Gilded Age, Paul Campos

Utah Law Review

Student debt is a function of three factors: the cost of higher education, the extent to which that cost is subsidized through sources other than students and their families, and the percentage of nonsubsidized revenue that is supplied via loans rather than out-of-pocket payments.

The first factor is a product of how much money colleges and universities choose to spend. The second is determined by total value of the many sources of subsidization upon which higher education draws. The third is a function of the relative wealth or poverty of the people who make up the student bodies at American …

Improvident Student Lending, Joseph Sanders, Vijay Raghavan

Utah Law Review

The idea that lending without regard to ability to repay should be illegal is not particularly new, but it gained purchase in recent years with the rapid growth of high-cost mortgage loans. In the late 1990s, law enforcement and private litigants began attacking predatory mortgage lenders on the grounds they were making loans that borrowers could not afford. Both before and after the financial crisis of 2008, state and federal legislators imposed reforms on the mortgage market that provided relief to borrowers whose lenders failed to determine whether they had sufficient income to afford their monthly mortgage payments.

This Article …

The Narrative And Rhetoric Of Student Debt, Jonathan D. Glater

Utah Law Review

The swirl of concerns about and criticisms of the cost of higher education and the debt burdens taken on by students masks a deeper confusion over the goals student aid should pursue and over reforms to enable achievement of those goals. This Article explores how the rhetoric used in public discussion of college cost and student borrowing can get in the way of what would be a difficult but critically important debate over goals. Higher education is a personal, private “investment” that must be “worth it” to the student; student “aid,” flexible loan repayment plans, even debt forgiveness, all aim …

The Case For More Debt: Expanding College Affordability By Expanding Income-Driven Repayment, John R. Brooks

Utah Law Review

One of the most important—but least discussed—legislative and regulatory accomplishments of the Obama administration was the reform and expansion of income-driven repayment (“IDR”) for federal student loans. By 2016, anyone with a federal student loan—old or new—could choose to cap their monthly student loan payments to 10 percent of their discretionary income (after a large exemption) and have any unpaid balances forgiven after a minimum of ten, twenty, or twenty-five years of repayment, depending on the plan. IDR has the potential to effect a massive change in how the United States pays for higher education. At its core, the promise …

Broken Promises: How Debt-Financed Higher Education Rewrote America’S Social Contract And Fueled A Quiet Crisis, Seth Frotman

Utah Law Review

The U.S. student loan market stands at $1.5 trillion—the second largest consumer debt market in the country. Despite the vast size of this market and the far-reaching spillover effects of student loan debt on individuals and communities, the American higher education system increasingly relies on debt financing as the predominant mechanism by which American families pay for college. Furthermore, student loans still lack a comprehensive twenty-first century consumer protection infrastructure. Researchers and policymakers are only now beginning to acknowledge the threat runaway student debt poses to the American social contract - even as millions of borrowers across the country struggle …

The Risk Of An Anti-Consumer Cfpb, Christopher L. Peterson

Utah Law Faculty Scholarship

The risks of an anti-consumer CFPB go beyond just those cases currently under investigation. America has a massive financial sector that is constantly evolving and reinventing itself. This striving for innovation and efficiency is, of course, one of the American financial system’s great advantages. Nevertheless, the Sun-Tzu-worshipping, MBA-wielding financiers that use boilerplate consumer credit contracts as weapons in their endless market-share battles are paying attention to what the agency is doing—and more importantly, to what it is not doing. A chilled CFPB law enforcement program will embolden the consumer finance industry to roll out more misleading advertising, more deceptive sales …

Choosing Corporations Over Consumers: The Financial Choice Act Of 2017 And The Cfpb, Christopher L. Peterson

Utah Law Faculty Scholarship

The Financial Choice Act of 2017 is appropriately named in at least one sense: its proposed restrictions on the authority of the Consumer Financial Protection Bureau reflect a choice by the House of Representatives to protect financial companies at the expense of consumers. This choice is borne out by the data. As this empirical review of CFPB enforcement cases demonstrates, nearly all of the relief provided to American consumers in CFPB enforcement cases arose where a bank, credit union, or other finance company deceived their customers about a material aspect of their product or service. Between 2012 and 2016, the …

Will Congress Remove Consumer Credit “Seat Belts”?, Christopher L. Peterson

Utah Law Faculty Scholarship

The CFPB has faced criticism not because it is out of control, but because it is effective. If the CFPB were bringing crazy cases, hundreds of federal judges appointed by Republican and Democratic presidents would simply dismiss the agency’s complaints. And some of those judges would enjoy doing so. Too many of America’s financiers are betting it will be easier to strangle the watchdog than actually follow the rules or pay up when they make a mistake. And worse, too many politicians, pundits, and astroturf-think-tanks-for-the-wealthy want to score political points by taking down what may be the best recent example …

Consumer Financial Protection Bureau Law Enforcement: An Empirical Review, Christopher L. Peterson

Utah Law Faculty Scholarship

In the aftermath of the U.S. financial crisis, Congress created a new federal agency — the Consumer Financial Protection Bureau (CFPB) — with the goal of fashioning a more just and efficient American consumer finance market. The CFPB now serves as the U.S. Government’s primary regulator and civil law enforcement agency governing consumer lending, payment systems, debt collection, and other consumer financial services. In its first four years of enforcing federal consumer protection laws, the CFPB has announced over a hundred different law enforcement cases forcing banks and other financial companies to relinquish over $11 billion in customer refunds, forgiven …

Warning: A Post-Sale Duty To Warn Targets Small Manufacturers, Jill Wieber Lens

Utah Law Review

The majority of states now obligate manufacturers to warn about dangers of their products that are discoverable after the sale. Commentators and courts have been hesitant about this obligation because of the potential burden it puts on manufacturers — the costs of identifying users and warning them of the danger. The consensus is that only a factually dependent post-sale duty to warn should exist, obligating manufacturers to warn only if a reasonable manufacturer would do so. A reasonable manufacturer, of course, would warn only if the danger to be warned of justifies the costs of the warning.

This Article is …