Law Commons^™

The Boundaries Of Contact Law In Cyberspace, Leon E. Trakman

Leon E Trakman Dean

Cyberspace has introduced novel ways in which to conclude, perform and terminate agreements. It has also raised doubts about whether traditional principles of contract law can adequately regulate new categories of contracts like click-wrap and browse-wrap agreements that were unheard of a few decades ago. This article explores these exciting new developments. Starting with an examination of late Nineteenth and early Twentieth adhesion contracts and the law of unconscionability, it evaluates innovations in contracting that have evolved since then. Uncovering the complexities associated with “wrap” contracts and End User Licensing Agreements [EULAs], it scrutinizes how legislatures and courts have responded …

The Principle Of Proportionality. A Comparative Approach From The Italian Perspective., Andrea Bortoluzzi

Andrea Bortoluzzi

This Article traces the path taken by legal subjectivity in Italian law, through its decostruction from the citizen to the consumer and then discusses the source of contractual disparity, which is a concept strongly influenced in Community law by the German conception of the contract. This “relational concept” calls for the contractual equilibrium achieved by the parties to be subject to a test to determine whether it complies with predetermined criteria of justice but restrictive measures may not impose excessive limits on the freedom of the individual and must therefore be based on the principle of reasonableness. The principle of …

The Law And Economics Of Subprime Lending, Todd J. Zywicki

Todd J. Zywicki

The collapse of the subprime mortgage market has led to calls for greater regulation to protect homeowners from unwittingly trapping themselves in high-cost loans that lead to foreclosure, bankruptcy, or other financial problems. Weighed against this catastrophe are the benefits that have accrued to millions of American families who have been able to become homeowners who otherwise would not have access to mortgage credit. Although the bust of the subprime mortgage market has resulted in high levels of foreclosures and even problems on Wall Street, the boom generated unprecedented levels of homeownership, especially among young, low-income, and minority borrowers, putting …

The Medium Of Exchange Paradigm: A Fresh Look At Compensated Live-Organ Donation, Dean Lhospital

Dean Lhospital

For over twenty years, human live-organ sales have been banned in the United States and most of the rest of the world. Observations and data arising from black market transactions and the few legal markets for organs suggest that permitting and regulating organ sales leads to more humane conditions than outlawing sales. Despite the data, opponents of organ sales still argue that selling human organs devalues human life. This article examines the panoply of organ markets – white, grey, and black – and identifies the source of this cognitive dissonance. Recognizing that there is a fundamental paradox in ethical objections, …

Capital In Chaos: The Subprime Mortgage Crisis And The Social Capital Response, Raymond H. Brescia

Raymond H Brescia

“Capital in Chaos: The Subprime Mortgage Crisis and the Social Capital Response,” examines the role of trust and the absence of social capital in the subprime mortgage crisis, with a particular focus on the impact of the subprime crisis on communities of color.

The Effect Of The 2005 Bankruptcy Reforms On Credit Card Company Profits And Prices (2), Michael N. Simkovic

Michael N Simkovic

The U.S. Bankruptcy code changed dramatically with the passage of The Bankruptcy Abuse Prevention and Consumer Protection Act Of 2005. This act increased the costs and decreased the benefits of bankruptcy to consumers. Supporters of the law claimed that it would benefit consumers as well as creditors, because reducing the losses faced by creditors would lower the cost of credit to consumers. Critics of the law depicted it as special interest legislation designed to profit credit card companies at the expense of consumers. This study tests whether the 2005 Bankruptcy Reform: (1) reduced the number of bankruptcies; (2) reduced credit …

Rating Sell-Side Analysts: A Shift From Subjectivity To Empirically Verifiable Facts, Andrew M. Labreche

Andrew M LaBreche

Throughout the early 1990’s, the stock market experienced seemingly limitless growth, with retail investors realizing healthy returns based on positive recommendations from sell-side analysts. However, as the 1990’s progressed, the technology bubble burst and millions of retail investors lost billions of dollars relying on fraudulent analyst recommendations. This article will detail the self-reinforcing relationship between investment banks, institutional investors and sell-side analysts that systematically disadvantaged retail investors throughout the 1990’s. It will then examine the attempted legislative, judicial and administrative remedies that have resulted from this situation. Specifically, this article will focus on the failures of those remedial measures and …

Adhesion Contracts And The Twenty First Century Consumer, Leon E. Trakman

Leon E Trakman Dean

Ecommerce has transformed the law of contract. Consumers are increasingly subject to myriads of conditions in shrink-wrap, box-wrap, click-wrap and browse-wrap contracts. Opening software wrapping or clicking “I agree” in a dialog box on a computer subjects the user to a series of onerous conditions that restrict end use and limit the supplier’s liability. These developments are counterbalance by the growth of new market-savvy classes of consumers who are willing and able to sue brand name producers in class and other actions. Faced with these Twenty First Century developments, courts struggle to find middle ground between regulating mass transactions in …

High Crimes On The High Seas, Marva J. Wyatt

Marva J Wyatt

The growth of the modern cruise industry over the past twenty five years and the corresponding increase in the numbers of Americans engaging in cruise travel warrants scrutiny of this multi billion dollar industry. The standard of care required of modern ocean common carriers has evolved from a very high standard of care approaching strict liability to one of ordinary care requiring a showing of actual notice of a dangerous condition. Serious crimes aboard these predominantly foreign flagged ships, which make up the fleets of recognizable names like Carnival, Princess, and Royal Caribbean, are increasing as the numbers of passengers …

The Risky Business Of Lifestyle Genetic Testing: Protecting Against Harmful Disclosure Of Genetic Information, Gabrielle Z. Kohlmeier

Gabrielle Z Kohlmeier

The technological and scientific advances of nutrigenetic testing imply that the future is here, but unfortunately the legal protections are not. Nutrigenetics—the newly developing science correlating diet and genotypes—promises an easier way to escape the consequences of unhealthy lifestyles. And a large contingent of Americans, including cost-conscious employers and health insurers, are seeking such high-tech solutions. Web-based nutrigenetic testing, purportedly offering custom-tailored plans without a trip to the doctor’s office, thus captures a wide audience. The enthusiasm for nutrigenetics may obfuscate the unusual problems surrounding protection of genetic information, particularly in a market context. Upon providing genetic material, an individual …

Renting The Good Life, Jim Hawkins

Jim Hawkins

Academic literature and court decisions are replete with calls to ban or severely inhibit the rent-to-own industry. The argument is simple enough: Rent-to-own firms charge exorbitant prices to the most needy and vulnerable segments of society. The case for burdensome regulations, however, is much more difficult to make out than past scholarship has admitted. For the most part, academics have proceeded directly to propose specific regulations for the industry without first carefully analyzing the rent-to-own business or the reasons for imposing drastic regulations. This Article examines the theoretical justifications for regulating the rent-to-own industry against the backdrop of interviews I …

Usury Law, Payday Loans, And Statutory Sleight Of Hand: An Empirical Analysis Of American Credit Pricing Limits, Christopher L. Peterson

Christopher L Peterson

In the Western intellectual tradition usury law has historically been the foremost bulwark shielding consumers from harsh credit practices. In the past, the United States commitment to usury law has been deep and consistent. However, the recent rapid growth of the “payday” loan industry belies this longstanding American tradition. In order to understand the evolution of American usury law, this paper presents a systemic empirical analysis of all fifty state usury laws in two time periods: 1965 and the present. The highest permissible price of a typical payday loan authorized under each state’s usury law was calculated. These prices were …

Housingdiscrimination.Com?: The Ninth Circuit (Mostly) Puts Out The Welcome Mat For Fair Housing Act Suits Against Roommate-Matching Websites (Fair Housing Council Of San Fernando Valley V. Roommates.Com, Llc), Diane J. Klein, Charles Doskow

Diane J Klein

This Article analyzes the recent 9th Circuit decision in FHC v. Roommates.com, reversing and remanding to the district court after finding that § 203(c) of the Communications Decency Act does not provide immunity to housing websites under § 3604(c) of the Fair Housing Act (FHA). The Article argues that housing websites should be held to the same standard as other advertisers of residential real estate under the FHA, and that Roommates.com is a “content provider” and hence liable for violating the FHA by disseminating advertisements that demonstrate discriminatory preferences on the basis of race, age, religion, disability, etc. The Article …

Search And Seizure On Steroids: United States V. Comprehensive Drug Testing And Its Consequences For Private Information Stored On Commercial Electronic Databases, Aaron S. Lowenstein

Aaron S Lowenstein

This article critiques the Ninth Circuit’s recent decision in United States v. Comprehensive Drug Testing. This case received some attention because it stems from the investigation into the use of steroids in Major League Baseball. It should have received much more attention, however, because of its troubling expansion of the government’s authority to access our private digital information without a warrant.

Executing a search warrant for information stored on a computer database poses special problems. Because targets of government investigations can easily conceal incriminating digital evidence, investigators often must search an entire computer hard drive in order to effectively execute …

Book Review: Harmonizing Trade Practices In The Eu: Sweet Sounds Or Sour Notes?, James P. Nehf

James P Nehf

This is a book review of a monograph that analyzes the European Union Unfair Commercial Practices Directive. It includes a brief synopsis of the Directive and discusses its likely impact on consumer protection laws in the EU.

Book Review: The Choice Between Life And Death And Everything In Between, Lee A. Harris

Lee A Harris

In his recent book, the Paradox of Choice, Barry Schwartz, a behavioral psychologist at Swarthmore College, says what some of us have been thinking all along: Too much choice is not a good thing. People fail to make good decisions and their tendency to err is only exacerbated by expanding choice. Accordingly, Professor Schwartz argues that, because of the abundance of options, markets are failing to do what markets are supposed to do: maximize individual welfare. A counterpoint to the plain-vanilla economic analysis, Schwartz posits that an increased number of options may actually reduce overall utility, not increase it. This …

The Economics Of Standardized Contracts, Enrico Baffi

enrico baffi

There are basically four characteristic features of mass contracting: the reduced negotiations, the dissemination of standard form contracts, the presence of abusive clauses and the recapitulation of the contract and its execution in a single act of stipulation. a) The reduction in negotiations is the result first of all of the costs that this activity requires and of the costs required to manage personalised contracts; secondly, this reduction is the consequence of the greater advantage of mass-produced goods compared to personalised goods; thirdly and lastly, it also derives from the limit of the range of possible clauses that can be …

Digital Media & Intellectual Property: Management Of Rights And Consumer Protection In A Comparative Analysis, Nicola Lucchi

Nicola Lucchi

Digital Media & Intellectual Property is a comparative research that analyzes the legal and tecnological emerging issues in the Intellectual Property Rights arena. The book provides a comparative and comprehensive analysis of the current technical, commercial and economical development in digital media. It describes the impact of new business and distribution models, the current legal and regulatory framework, social practices and consumer expectations associated with the use, distribution, and control of digital media products. In particular, the author analyzes the anti-circumvention provisions for technological protection measures and digital rights management systems enacted in the United States and in Europe, and …

Obscene Contracts*: The Doctrine Of Unconscionability And Hospital Billing Of The Uninsured, George A. Nation Iii

George A Nation III

No abstract provided.

Free Advertising: The Case For Public Relations As Commercial Speech, Tamara R. Piety

Tamara R. Piety

The commercial speech doctrine has suffered from definitional ambiguity. Some commentators have argued that the doctrine's application should be limited to speech that is clearly advertising and should not be extended to cover speech by a corporation on matters of public concern. This is of particular concern with respect to public relations communications about labor or environmental practices (to name just two examples) which industry advocates argue should be treated like fully protected speech. In this article I argue that because all for-profit corporate speech is in furtherance of its commercial purpose, public relations speech should be presumptively covered by …