Law Commons^™

Electronic Commerce And Legal Protection For Consumers In Spain, Juan-Antonio Mondejar-Jimenez, Mª Angeles Zurilla-Cariñana, Jose Mondejar-Jimenez

Juan-Antonio Mondejar-Jimenez

Electronic commerce is becoming increasingly common at international level. It is defined as “doing business electronically across the extended enterprise”, which includes all forms of business, administrative transactions and information exchanges in which any type of information or communication technology is used. It has also been defined as “the form of commerce that by using the services and links provided in electronic documents in the Internet, allows the customer to query, select and purchase a distributor's offer using a device that is connected to the Internet, in real time and at any time or place”. In Spain, the Information Society …

Big-Box Bullies Bust Benign Buyer Behavior: Wal-Mart, Get Your Hand Off My Receipt!, Victoria S. Salzmann

Victoria S. Salzmann

This Article is a critical analysis of “big-box” store policies that force consumers to hand over their receipts before they are permitted to leave. I argue that, at least in the tort context, the economic power of retail stores has grown beyond the limiting power of the law. To support this theory, I consider a practice I show to be unlawful under settled tort law—store demands for customer receipts. Considering this illegal practice against other unchecked illegalities performed by the superstores, I theorize that economic power is replacing the law as the personal liberty safeguard.

A Troubled House Of Cards: Examining How The “Housing And Economic Recovery Act Of 2008” Fails To Resolve The Foreclosure Crisis, Chad Emerson

Chad Emerson

No abstract provided.

Electronic Commerce And Legal Protection For Consumers In Spain, Juan-Antonio Mondejar-Jimenez

Juan-Antonio Mondejar-Jimenez

Electronic commerce is becoming increasingly common at international level and is the object of analysis by various fields and scientific disciplines.

Guaranteeing the security of transactions is of fundamental importance if electronic commerce is to expand correctly. In this regard, legal protection for electronic commerce transactions is an area that is gaining in interest for scientific literature. The Spanish Information Society Services and Electronic commerce Act describes various aspects that need to be further developed in this field.

This document analyses the new contractual forms arising from the “Information Society” and the legal issues associated to the latter, as well …

The Tower Of Bazzle: Why Due Process Requires A Hybrid Model Of Classwide Arbitration, Zachary Allen

Zachary Allen

During the late 1970s the United States witnessed the beginning of an uncomfortable courtship between two powerful dispute resolution mechanisms: arbitration and the class action. In 2003, the U.S. Supreme Court announced its approval of their marriage, referred to as classwide arbitration, in Green Tree Financial Corporation v. Bazzle. In Bazzle, the Court held that where an arbitration agreement is silent regarding classwide arbitration, the arbitrator—not the court—should interpret the agreement to determine whether it permits classwide arbitration.

Unfortunately, the Court’s blessing was mixed. Bazzle is on infirm ground for two reasons. First, the Court could only muster a 4-1-4 …

Loco Labels And Marketing Madness: Improving How Consumers Interpret Information In The American Food Economy, Margaret Sova Mccabe

Margaret Sova McCabe

America's current food labeling scheme, as illustrated by the example of salt, is flawed when examined from the consumer and public health perspective. While the Food, Drug, and Cosmetic Act has sound scientific standards, those standards as currently applied to labels do not efficiently signal health information to consumers. Without better information on labels, consumers will continue to make poor choices at the grocery store. However, there are promising new ways to label. Both the United Kingdom and the domestic supermarket chain Hannaford’s have implemented simple health labeling on food packaging or grocery shelves to improve the amount and location …

The Sound Of Silence: Declaratory Rescission Class Action Claims Under The Truth In Lending Act, Jo Carrillo

Jo Carrillo

This paper addresses the difficulty of Truth in Lending disclosure. It also maps the current debate on whether the federal Truth in Lending Act allows class action rescission claims.

Is Arbitration Under Attack? Exploring The Recent Judicial Skepticism Of The Class Arbitration Waiver And Innovative Solutions To The Unsettled Legal Landscape, Ramona L. Lampley

Ramona L. Lampley

This article explores the hotly debated field of enforcing arbitration clauses with binding class-action waivers. While the enforcement of arbitration clauses generally, and those with class-action waivers specifically, has undergone much debate in the past three years in both the academic and judicial fora; this article casts a new look on the analysis. Instead of advocating simply for or against the enforcement of the class-action waiver, this article analyzes the dialogue between the consumer products industry and the consuming public, via the court system. This dialogue has resulted in a “new wave” of consumer products arbitration agreements: agreements that are …

The British Approach To Consumer Financial Disputes: A Model For Reform In Insurance Law And Beyond, Daniel Benjamin Schwarcz

Daniel Benjamin Schwarcz

Much of insurance law and regulation is concerned with compensating consumers who have been wrongly denied coverage. But policyholders nonetheless have relatively few realistic options for challenging an insurer’s adverse coverage determination. Litigation is often too slow and costly for those who have recently suffered significant financial loss. Meanwhile, the alternative dispute resolution options that do exist – such as the mediation services that insurance regulators offer or the existing variants of insurance arbitration – are generally either ineffective or unavailable for most disputes. This Article proposes a new way forward by looking to the United Kingdom’s innovative Financial Ombudsman …

Consumers As Producers: The Personal Mainframe And The Law Of Computing, Peter P. Swire

Peter P Swire

This article explores the idea of “consumers-as-producers” as an organizing principle for understanding modern computing and cyberlaw. Leading legal commentators such as Yochai Benkler and Larry Lessig have emphasized the non-market nature of modern computing, stressing the shared actions of volunteers in blogs, wikis, and Open Source software. By recognizing the ways that ordinary individuals are also economic producers, this article describes major features of modern computing that have been minimized in these leading accounts.

Part I describes the history of home computing as an economic activity, where individuals’ home computers today are “personal mainframes,” with the processing power of …

Reisurance: The Silent Regulator?, Aviva Abramovsky

Aviva Abramovsky

Abstract This Essay suggests that a discussion on insurance regulation should include a consideration of the effect reinsurance may have on the behavior of insurers. The Essay reviews the traditional types of reinsurance, and considers the ability of private reinsurance contracts to produce insurer action. This essay suggests if reinsurance is not included in a holistic examination of the field, its realities have the capacity to misdirect insurance regulatory assumptions. Moreover, reinsurance works as a source of independent and often unexamined contractual influence on insurer activity, and as a potential source of interference with regulatory proposals. Even though reinsurance is …

Against Freedom Of Commercial Expression, Tamara R. Piety

Tamara R. Piety

No abstract provided.

The Effect Of 2005 Bankruptcy Reform On Credit Card Industry Profits And Prices, 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 …

Rankings: A Dramatization Of The Incentives Created By Ranking Law Schools, Jeff Sovern

Jeff Sovern

Rankings: A Dramatization of the Incentives Created by Ranking Law Schools Sellers in a competitive market shift resources from attributes buyers don't care about to attributes buyers do care about. In markets in which buyers rely on imperfect signals for quality, sellers move resources away from improving the quality of their product to enhancing the illusion of quality. For example, before freshness dating, when consumers tested the freshness of bread by squeezing it, bakers reportedly added chemicals to bread to preserve its softness longer, thereby creating the illusion of freshness. Similarly, law school rankings encourage schools to shift resources away …

How The Government Can Protect Home Mortgage Consumers: A Proposal To Provide Consumers A Risk Assessment Of Mortgages, Adeline Park

Adeline Park

The recent sub-prime mortgage crisis has revealed the consumer’s vulnerability in the home mortgage marketplace. Consumers face an overwhelming variety of mortgage options, and are not motivated to invest the necessary time and resources to comprehend the meaning and implications of each loan feature. I propose that the government assess the risk of each loan feature available in the home mortgage market, based on the historical number of foreclosures each loan type has yielded. The government will then require lenders to display the risk assessment icon on all sales, marketing, and advertising materials. The risk assessment icon will identify the …

Ripping Off Grandma And Grandpa Without Hurting The Banks Of America: Allowing The Elderly And Other Easy Prey To Pay For The Crimes Of Immoral Individuals And Institutions, Brett D. Maxfield

Brett D Maxfield

This paper looks at the abuses of the banks of America in the ways they influence the law of credit and debt collection and what can be done to reform the system.

Are Contingent-Fee Attorneys Deterred?: How Courts Can More Effectively Police Adhesive Arbitration Agreements, Kenyon Harbison

Kenyon D Harbison

If you’re like me, you become bound by a new arbitration agreement almost every day, sometimes without even knowing it. They are included with banking and credit card statements, in most employment contracts, and in most purchase agreements. When we make purchases online we ‘click’ our assent to them without reading them. When we receive them in the mail we signal our assent by failing to opt out. But what happens when we are injured, defrauded, or cheated, try to sue, and find we are instead subject to arbitration? What standards can we expect courts to apply if we challenge …

Rankings: A Dramatization Of The Incentives Created By Ranking Law Schools, Jeff Sovern

Jeff Sovern

Rankings: A Dramatization of the Incentives Created by Ranking Law Schools Sellers in a competitive market shift resources from attributes buyers don't care about to attributes buyers do care about. In markets in which buyers rely on imperfect signals for quality, sellers move resources away from improving the quality of their product to enhancing the illusion of quality. For example, before freshness dating, when consumers tested the freshness of bread by squeezing it, bakers reportedly added chemicals to bread to preserve its softness longer, thereby creating the illusion of freshness. Similarly, law school rankings encourage schools to shift resources away …

Measuring Identity Theft At Top Banks (Version 1.5), Chris Hoofnagle

Chris Jay Hoofnagle

There is no reliable way for consumers, regulators, and businesses to assess the relative rates of identity fraud at major financial institutions. This lack of information prevents a consumer market for bank safety from emerging. As part of a multiple strategy approach to obtaining more actionable data on identity theft, the Freedom of Information Act was used to obtain complaint data submitted by victims in 2006 to the Federal Trade Commission. This complaint data identifies the institution where impostors established fraudulent accounts or affected existing accounts in the name of the victim. The data were aggregated and used to create …

Credit Cards And Bankruptcy, Todd J. Zywicki

Todd J. Zywicki

From 1980 to 2005 consumer bankruptcy filings increased five-fold. Conventional wisdom holds that a primary cause of rising bankruptcy filing rates was increased household financial distress caused by increased indebtedness caused in turn by increased credit card borrowing. In 2005, Congress enacted the bipartisan Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA). The legislation was enacted in response to twenty-five years of rising bankruptcy filings and a perception of widespread fraud and abuse that threatened the fairness and integrity of the system. BAPCPA marked the most profound and far-reaching overhaul of America’s bankruptcy system in over a generation. In the …

Shari'ah's Black Box: Civil Liability And Criminal Exposure Surrounding Shari'ah-Compliant Finance, David Yerushalmi

David Yerushalmi

This article examines the multitude of legal issues - both criminal and civil - that Shari'ah-compliant finance (SCF) presents to U.S. financial institutions and their professional advisers. In short, SCF is the practice of investing in conformity with Islamic law (Shari'ah). Such investment appears at first glance innocuous. With only a modicum of probing, however, SCF turns out to be a black box, where the financial industry and their legal professionals have hidden a doctrine at war with the West and have ignored the dangers and risks posed by Shari'ah authorities who determine the rules and principles of this industry. …

Against Financial Literacy Education, Lauren E. Willis

Lauren E Willis

The dominant model of regulation in the United States for consumer credit, insurance, and investment products is disclosure and unfettered choice. As these products have become increasingly complex, consumers’ inability to understand them has become increasingly apparent, and the consequences of this inability more dire. In response, policymakers have embraced financial literacy education as a necessary corollary to the disclosure model of regulation. This education is widely believed to turn consumers into “responsible” and “empowered” market players, motivated and competent to make financial decisions that increase their own welfare. The vision is of educated consumers handling their own credit, insurance, …

A "Fair Contracts" Approval Mechanism: Reconciling Consumer Contracts And Conventional Contract Law, Shmuel I. Becher

Shmuel I Becher

Consumer contracts diverge from the traditional paradigm of contract law in various conspicuous ways. They are pre-drafted by one party; they cannot be altered or negotiated; they are executed between unfamiliar contracting parties unequal in their market power and sophistication; they are offered frequently by agents who act on behalf of the seller; and promisees (i.e., consumers) do not read or understand them. Consumer contracts are thus useful in modern markets of mass production, but they cast doubt on some fundamental notions of contract law. To reframe the long-lasting debate over consumer contracts this Article develops a superior legal regime …

The Patient Life: Can Consumers Direct Health Care?, Carl E. Schneider, Mark A. Hall

Mark A Hall

The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today’s health policy watchword. This article evaluates consumerism and the regulatory mechanism …

Mutual Fund Investors: Divergent Profiles, Alan R. Palmiter, Ahmed E. Taha

Ahmed E Taha

Mutual funds are owned by almost half of all U.S. households, manage over $12 trillion dollars in assets, and have become a primary vehicle for retirement and investment savings in the United States. Who are mutual fund investors? The answer is critical to regulatory policy for the mutual fund industry. Fund investors, by selecting the funds in which they invest, play a central role in determining asset allocation and in controlling the fees and expenses that funds charge. Thus, the functioning of the mutual fund market turns on the knowledge and financial sophistication of fund investors.

This article examines the …

Regulation With Placebo Effects, Anup Malani

Anup Malani

There is a growing body of empirical evidence supporting the existence of placebo effects in medical contexts and is suggestive of nontrivial placebo effects in non-medical contexts. This paper reviews the literature on placebo effects, examines the implications for four fields of law (drug approval, informed consent law, consumer protection law, and torts) and suggests future areas for research on placebo effects. Specifically, it make the case for altering the drug approval process to account for, if not credit, placebo effects. It suggests allowing evidence of placebo effects as a defense in cases alleging violations of informed consent or false …

What Google Knows: Privacy And Internet Search Engines, Omer Tene

Omer Tene

Search engines are the dominant actors on the Internet today and Google is undoubtedly, the undisputed king of search, evoking ambivalent feelings. It is adored for its ingenuity, simple, modest-looking interface, and superb services offered at no (evident) cost. Yet increasingly, it is feared by privacy advocates who view it as a private sector "big brother," posing what one commentator dubbed “the most difficult privacy problem in all of human history.” Google is an informational gatekeeper, harboring previously unimaginable riches of personal data. Billions of search queries stream across Google servers each month, the aggregate thoughtstream of humankind online. Google …

Readability Studies: How Technocentrism Can Compromise Research And Legal Determinations, Louis J. Sirico Jr.

Working Paper Series

One way to determine whether consumers understand a document is to use a readability formula to assign it a score. These formulas calculate readability by counting such variables as the number of words and syllables in a passage or document. The idea of readability formulas has been defined as “an equation which combines those text features that best predict text difficulty. The equation is usually developed by studying the relationship between text features (e.g., words, sentences) and text difficulty (e.g., reading comprehension, reading rate, and expert judgment of difficulty).” Even though readability formulas are mechanical and imperfect, they are easy …

The Technology Of Law And Economics, John H. Moran

John H Moran

The article suggests that the field of Technology drives the fields of Economics and Law. It relies on Richard Posner's law and economics ideas, but also argues that technologists have increasing influence on the emerging world order, to the detriment of the existing government and banking based power structure.

Misbehavior And Mistake In Bankruptcy Mortgage Claims, Katherine Porter

Katherine Porter

The greatest fear of many families in serious financial trouble is that they will lose their homes. Bankruptcy offers a last chance for families to save their homes by halting a foreclosure and by repaying any default on their mortgage loans over a period of years. Mortgage companies participate in bankruptcy by filing claims with the court for the amount of the mortgage debt. To retain their homes bankruptcy debtors must pay these amounts. This process is well-established and, until now, uncontroversial. The assumption is that the protective elements of the federal bankruptcy shield vulnerable homeowners from harm.

This Article …