Law Commons^™

Amazon As A Seller Of Marketplace Goods Under Article 2, Tanya J. Monestier

Journal Articles

You have probably purchased goods on Amazon. Did you know that if the goods you purchased on Amazon turn out to be defective and cause serious personal injury, Amazon is probably not liable for them? Did you know that even though you placed an order on Amazon, gave payment to Amazon, and received the goods in an Amazon box, there is a good chance that the goods are not “sold by” Amazon—but are instead sold by a third-party seller? Did you know that Amazon tries to avoid liability for goods sold on its platform on the technicality that it does …

Regulating Charitable Crowdfunding, Lloyd Hitoshi Mayer

Journal Articles

Charitable crowdfunding is a global and rapidly growing new method for raising money to benefit charities and individuals in need. While mass fundraising has existed for more than a hundred years, crowdfunding is distinguishable from those earlier efforts because of its low cost, speed of implementation, and broad reach. Reflecting these advantages, it now accounts annually for
billions of dollars raised from tens of millions of donors through hundreds of Internet platforms such as Charidy, Facebook, GoFundMe, and GlobalGiving. Although most charitable crowdfunding campaigns raise only modest amounts, every year several efforts attract tens of millions of dollars in donations. …

The Specific Consumer Expectations Test For Product Defects, Clayton J. Masterman, W. Kip Viscusi

Journal Articles

In this Article, we propose that courts adopt an amended version of the consumer expectations test that we call the “specific consumer expectations test.” The specific consumer expectations test would apply to any product or product component for which consumers have clear, articulable ex ante expectations about the function of the product. Under the specific consumer expectations test, a defendant is liable if consumers expected such a product to reduce a particular risk, and the product in fact increased that risk. Similarly, if a product was intended to convey a particular benefit, but in fact harmed consumers along the same …

The Customer Is Not Always Right: Balancing Worker And Customer Welfare In Antitrust Law, Clayton J. Masterman

Journal Articles

A natural consequence of employer restraints of trade that decrease wages is lower prices. Under antitrust law, courts evaluate most such restraints of trade under the rule of reason. This Note argues that the rule of reason’s focus on consumer welfare and the natural price decrease that follows from employer restraints of trade cause underenforcement of antitrust law against anticompetitive employer conduct. Such a result is anomalous, because the consumer welfare standard that permeates antitrust law should protect employees as much as customers that purchase goods.

To solve the under-enforcement problem, this Note proposes that courts analyzing a restraint of …

The Failed Superiority Experiment, Christine P. Bartholomew

Journal Articles

Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card—subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges …

The Insurability Of Claims For Restitution, Christopher French

Journal Articles

Does and should a wrongdoer’s liability insurance cover an aggrieved party’s claim for restitution (e.g., a claim for the disgorgement of ill-gotten gains)? This article answers those questions. It does so by first answering the question of whether claims for restitution are covered under the terms of liability insurance policies. Then, after concluding that they are, it addresses the question of whether claims for restitution should be insurable as a matter of public policy and insurance law theory. There are long-standing legal and equitable principles that, on the one hand, dictate that a wrongdoer should not be allowed to benefit …

Saving Charitable Settlements, Christine P. Bartholomew

Journal Articles

This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning settlement funds left over after individual monetary distributions) and “charitable settlements” (meaning money initially distributed to charities as part of class action settlements). While both have cy pres roots, these two settlement structures have been conflated, jeopardizing the potential utility of charitable settlements. After articulating more precise nomenclature for these distinct distribution methods, this Article justifies why we must preserve charitable settlements. This defense is particularly timely, as …

Redefining Prey And Predator In Class Actions, Christine P. Bartholomew

Journal Articles

Aggregate litigation’s potential as a tool for the disempowered is not being realized. Class actions have come under serious attack in the last decade as critics have successfully worked to change traditional notions of victimhood. The leading narrative identifies big businesses as the vulnerable prey needing protection from large class claims and the greedy class actions attorneys who bring them. Relying on this narrative, courts and Congress have made class actions harder to pursue, from filing and class certification to settlement approval.

Vulnerability theory offers an alternative framework to rehabilitate class actions. From this perspective, the legal system currently disadvantages …

The Federal Reserve's Supporting Role Behind Dodd-Frank's Clearinghouse Reforms, Colleen M. Baker

Journal Articles

This Article analyzes the Federal Reserve’s expanded role in payment, clearing, and settlement systems, particularly in connection with certain clearinghouses that have been designated by the newly created Financial Stability Oversight Council as “systemically significant.” The Federal Reserve’s expanded role is a little understood, but critical supporting component of domestic and international regulatory reforms to the $639 trillion over-the-counter (OTC) derivative markets. These reforms mandate the increased use of clearinghouses in OTC derivative markets. Due to critical reforms in Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the Federal Reserve is now positioned to …

Back To The Future: Rediscovering Equitable Discretion In Trademark Cases, Mark P. Mckenna

Journal Articles

Courts in recent years have increasingly made blunt use of their equitable powers in trademark cases. Rather than limiting the scope of injunctive relief so as to protect the interests of a mark owner while respecting the legitimate interests of third parties and of consumers, courts in most cases have viewed injunctive relief in binary terms. This is unfortunate, because greater willingness to tailor injunctive relief could go a long way to mitigating some of the most pernicious effects of trademark law’s modern expansion. This Essay urges courts to reverse this trend towards crude injunctive relief, and to re-embrace their …

The Normative Foundations Of Trademark Law, Mark P. Mckenna

Journal Articles

This paper challenges the conventional wisdom that trademark law traditionally sought to protect consumers and enhance marketplace efficiency. Contrary to widespread contemporary understanding, early trademark cases were decidedly producer-centered. Trademark infringement claims, like all unfair competition claims, were intended to protect producers from illegitimate attempts to divert their trade. Consumer deception was relevant in these cases only to the extent it was the means by which a competitor diverted a producer's trade. Moreover, American courts from the very beginning protected a party against improperly diverted trade in part by recognizing a narrow form ofproperty rights in trademarks. Those rights were …

Cutting The Bill For Commonwealth Edison's Nuclear Power Plants: Important Gains For Illinois Public Utility Customers, Robert Jones

Journal Articles

In 1993 Commonwealth Edison, Illinois’s largest electric utility agreed to pay its customers $1.3 billion, the biggest refund issued by a utility in United States history, and to reduce its electricity rates by $339 million per year. This refund and rate reduction settled a decade-long series of cases with consumer advocates over the billions of dollars Edison spent constructing five nuclear power plants. The litigation not only offered relief to Edison customers, who paid some of the highest rates in the country. It dramatically changed Illinois law, giving public utility companies strong incentive to generate electricity through less costly and …

Welfare And Pension Plans Disclosure Act Amendments Of 1962, G. Robert Blakey

Journal Articles

Over-all criticism of the Welfare and Pension Plans Disclosure Act, even as amended, must begin by noting the continuing inadequacy of its disclosure provisions. They are inadequate precisely because they do not require full and complete disclosure. It is clear that strong sanctions now exist which can, if used, deal well enough with such abuses as double dealing and outright thievery. Vigorous prosecution and adequate bonding will do about all that law can do where basic dishonesty is involved. Of greater importance to the ultimate beneficiary, however, is the possibility of incompetent, imprudent or irresponsible management. Only detailed regulation or …