Law Commons^™

Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas

Jude A Thomas

Customer segmentation is a powerful analytical marketing practice that is employed by a wide range of businesses to segregate customers with similar characteristics into subgroups in order to inform operational business processes. Such practices allow firms to better allocate their resources in order to form more profitable customer relationships, but they also have the capacity to lead to unfair discriminatory impact upon customer groups. Current legislation is largely unprotective of customers so positioned, but recent trends in the insurance and lending industries suggest that a broader application of anti-discrimination laws could foretell a future of greater restrictions on the implementation …

A Tale Of Three Markets: The Law And Economics Of Predatory Lending, Kathleen Engel, Patricia Mccoy

Patricia A. McCoy

Predatory lending - the practice of making exploitative high-cost loans to naive borrowers - has spurred policy-makers, activists, lenders and scholars to debate whether intervention is warranted and, if so, what type of intervention is appropriate. The solution requires understanding the incentives in the home mortgage market that have fueled predatory lending. Recent changes in the credit market have created new possibilities for lenders to profit by exploiting information asymmetries to the detriment of unsophisticated borrowers. As a result, a new, predatory lending market has emerged alongside the legitimate prime and subprime home mortgage markets. Neither market forces nor existing …

The Cra Implications Of Predatory Lending, Kathleen Engel, Patricia Mccoy

Patricia A. McCoy

Traditionally, policymakers, communities, and industry have regarded the Community Reinvestment Act ("CRA") as a positive mandate for banks and thrifts to do good by increasing investment in low- and moderate-income ("LMI") neighborhoods. When Congress enacted CRA, it was inconceivable that LMI neighborhoods might eventually receive too much credit in the form of abusive mortgages. However, by the late 1990s, predatory mortgages- exploitative high-cost loans to gullible borrowers-were ravaging the inner cities. We address the question: given the surge in predatory lending, how should CRA respond? CRA and federal subsidies to regulated lenders can create perverse incentives for lenders to engage …

Novare Group V. Sarif: Buyer Beware; Georgia Consumers Can't Rely On The Fair Business Practices Act, Mark E. Budnitz

Mark E. Budnitz

The article discusses the Georgia Supreme Court’s decision, Novare Group v. Sarif, 290 Ga. 186, 718 S.E.2d 304 (2011). The article analyzes the court’s response to the plaintiffs’ claim that the defendant brokers and developers violated the Georgia Fair Business Practices Act (FBPA), Georgia’s primary consumer protection statute. I contend that the court’s approach undermines the FBPA. I describe the General Assembly’s purpose in enacting the FBPA and criticize the court for treating claims under the FBPA the same as common law fraud claims. I also examine the court’s treatment of parol evidence and merger clauses. I discuss the implications …

Novare Group V. Sarif: Buyer Beware; Georgia Consumers Can't Rely On The Fair Business Practices Act, Mark E. Budnitz

Mark E. Budnitz

In Novare Group v. Sarif, 290 Ga. 186, 718 S.E.2d 304 (2011), the Georgia Supreme Court substantially thwarted the legislature's intention in enacting the Fair Business Practices Act (FBPA), Georgia's primary consumer protection statute. The article analyzes the court’s approach to the plaintiffs’ claim that the defendant brokers and developers violated the FBPA. I examine the court’s approach to parol evidence and merger clauses. I describe the General Assembly’s purpose in enacting the FBPA and criticize the court for treating claims under the FBPA the same as common law fraud claims. I discuss the implications for future actions seeking redress …

Patient Protection And Decision Aid Quality: Regulatory And Tort Law Approaches, Nadia N. Sawicki

Nadia N. Sawicki

One of the most enduring debates at the intersection of administrative and tort law focuses on the challenge of identifying the most effective means of ensuring consumer safety. In some circumstances, standard-setting administrative regulations may be sufficient to protect consumers from harm while at the same supporting the growth of valuable industries. In other circumstances, regulation may need to be supplemented by a complementary tort regime that fills the compensation gap when consumers suffer injury. The discussion among policymakers and legal scholars about which system to favor is continually playing out in a variety of arenas, most notably in the …

"A Necessary Cost Of Freedom"? The Incoherence Of Sorrell V. Ims, Tamara R. Piety

Tamara R. Piety

No abstract provided.

Finding Room For Fairness In Formalism--The Sliding Scale Approach To Unconscionability, Melissa T. Lonegrass

Melissa T. Lonegrass

This Article evaluates the sliding scale approach to unconscionability, defends its use, and advocates for its continued and expanded application to consumer standard form contracts. Part I describes the sliding scale approach and its recent popularity in state courts, thereby filling a gap in the scholarly doctrine, which has to date failed to fully examine this trend. Parts II and III defend the sliding scale approach, praising its potential to align the unconscionability analysis with interdisciplinary research regarding consumer behavior and to balance formalist concerns about judicial regulation of unfair terms in standard form contracts. Finally, Part IV calls for …

"A Necessary Cost Of Freedom"? The Incoherence Of Sorrell V. Ims, Tamara R. Piety

Tamara R. Piety

On June 23, 2011 the Supreme Court announced its decision in a closely watched case, Sorrell v. IMS, striking down Vermont’s law prohibiting pharmacies from selling physicians’ prescription records without their permission for use in marketing brand name drugs. The Court’s majority struck down Vermont’s statute as unconstitutional on the grounds that the law was not “content neutral” because it singled out marketing for disparate treatment. It in effect applied a strict scrutiny test to a category of speech that has technically if not in practice been subject to intermediate scrutiny. This ruling effectively does away with the commercial speech …

Finding Room For Fairness In Formalism--The Sliding Scale Approach To Unconscionability, Melissa T. Lonegrass

Melissa T. Lonegrass

No abstract provided.

The Case Against The Dodd-Frank Act’S Living Wills: Contingency Planning Following The Financial Crisis, Nizan Geslevich Packin

Nizan Geslevich Packin

The Dodd-Frank Act’s “living will” requirement mandates that systemically important financial institutions develop wide-ranging strategic analyses of their business affairs, and submit comprehensive contingency plans for reorganization or resolution of their operations to regulators. The goal is to mitigate risks to the financial stability of the US and encourage last-resort planning, which will allow for a rapid and efficient response in the event of an emergency. Beyond the general framework set forth in the Dodd-Frank Act, very little is known about living wills; no legal literature currently exists on what the concept entails, and regulators have not yet created any …

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, K Van Tassel, R Goldman

Katharine A. Van Tassel

Consumers in the United States are being exposed to steadily increasing levels of novel and untested engineered nanoparticles as a result of their contact with everyday consumer products. Nanoparticles are very small particles that are engineered using innovative technologies to be 1 to 100 nanometers in size. Just how small is small? In comparison, a human hair is 80,000 nanometers wide. Nanoscale materials are increasingly being used in a wide variety of areas, including electronic, magnetic, medical imaging, drug delivery, catalytic, materials applications, and cosmetic products. According to the National Institute of Occupational Health, new nanotechnology consumer products are coming …

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, K Van Tassel, R Goldman

Katharine A. Van Tassel

Consumers in the United States are being exposed to steadily increasing levels of novel and untested substances as a result of their contact with consumer products containing nanoparticles. Hundreds of consumer products are being marketed for human consumption, including food, dietary supplements, cosmetics and sunscreens. This expanding market ignores the growing scientific understanding that nanoparticles can create unintended human health and environmental risks. This Article discusses the public health, regulatory, legal and ethical issues raised by the developing appreciation of the health risks associated with nanotech products and is arranged as follows. After this Introduction, this Article describes the present …

The Dodd-Frank Wall Street Reform And Consumer Protection Act: What Caused The Financial Crisis And Will Dodd-Frank Succeed In Preventing Future Crises?, Charles W. Murdock

Charles W. Murdock

Summary: The Dodd-Frank Wall Street Reform and Consumer Protection Act: What Caused the Financial Crisis and Will Dodd-Frank Succeed in Preventing Future Crises?

We are still experiencing the devastating impact of the financial crisis which came to a head on September 18, 2008 when Secretary Paulson told Congressional leaders that “[u]nless you act, the financial system of this country and the world will melt down in a matter of days.”

To prevent future crises of this magnitude, last year Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act. However, this year, legislation has already been introduced to repeal …

Putting The Gene Back In The Bottle: Why California Needs Stronger Protection Of Genetic Privacy In The Wake Of Affordable Dna Testing, Farid Zakaria

Farid Zakaria

In recent years, many “direct-to-consumer” genetic testing companies have started offering a DNA analysis service to the public. Based on the analysis of the DNA contained in saliva, these companies are able to inform the customer about his or her likelihood of having certain traits and of developing a number of diseases. Given the sensitive nature of this kind of information, this paper considers whether it is sufficiently protected under the current legal and regulatory framework. Specifically, the paper studies whether current federal, state, and common law that protects medical and private information also guarantees the privacy of genetic information. …

Corporate Social Responsibility After Citizens United, David G. Yosifon

David G. Yosifon

The Supreme Court recently held in Citizens United v. Federal Elections Commission (2010) that the First Amendment forbids Congress from restricting the political speech of corporations. While corporate theory did very little to inform the Court’s thinking in Citizens United, this article argues that the holding in Citizens United requires us to rethink corporate theory. Specifically, this article demonstrates that the shareholder primacy norm in American corporate governance relies on the assumption that corporations can be restrained from influencing external governmental operations. We can enjoy the efficiencies generated by shareholder primacy, mainstream corporate theorists have long argued, because we can …

How Incentives Drove The Subprime Crisis, Charles W. Murdock

Charles W. Murdock

In order to address any systemic problem, whether the goal is to change the system, o regulate the system, or change the incentives driving a system, it is necessary to appreciate all the drivers operating within the system. In the case of the subprime crisis, one of the drivers was the changing nature of the subprime loans, which was not factored into the models used by the investment bankers, the credit rating agencies, and the issuers of credit default swaps.

This paper is an attempt to look dispassionately at the subprime crisis from a particular perspective, namely, the incentives that …

The Chicago School Virus, Spencer Weber Waller

Spencer Weber Waller

The Chicago School of Law and Economics is a leading example of a highly successful legal ideology. As one recent commentator has noted: "[T]he basic characteristic of the Chicago School is the belief that free markets and the price mechanism are the most effective and desirable ways for a society to organize production and economic life in general." The Chicago School of Law and Economics applies these insights to legal questions and views the creation and enforcement of legal rules primarily in terms of how legal rules and institutions promote allocative efficiency and wealth maximization.

While much ink has been …

Market Failure In The Marketplace Of Ideas, Tamara R. Piety

Tamara R. Piety

Proponents of expansive First Amendment protection for commercial speech often invoke "the marketplace of ideas" metaphor. The use of this metaphor simultaneously invokes generalized notions about the commitment to free markets and free expression. It implies these values are intertwined and that more protection for commercial speech means both more freedom and more truth. I argue that expanding First Amendment protection for commercial speech will not result in the either more truth or more freedom but rather to less of each and explore the ways in which, even with only limited protection for truthful commercial speech, the market has actually …

Common Law Deceit, Misrepresentation, And Fraud, Elizabeth De Armond

Elizabeth De Armond

No abstract provided.