Law Commons^™

Consumers Want To Be In Europe; Corporations Want To Be In The U.S.: How To Reform Mandatory Consumer Arbitration Agreements To Be Fair To Both Parties, Kelly Parfitt

Kelly Parfitt

Arbitration is a popular method of resolving legal disputes between businesses. However, in the last few years, corporations have begun putting mandatory consumer arbitration agreements in small print on sales contracts and receipts for consumer goods, credit cards, and mortgages. Consumers are forced to pay fees much higher than court costs, depending on the case. An arbitrator will do hundreds of cases with the same corporations, be familiar with and even in some cases be affiliated with the corporation. This system results in the overwhelming majority of cases being won by corporations. But in the European Union, consumers are given …

“U.S. Consumer Protection: Striking A Balance Between The Fda Approval Process And State Tort Law Claims Through The Medical Device Safety Act Of 2009”, Rachel V. Rose

rachel v rose

No abstract provided.

State Authority To Regulate Toxins In Children's Consumer Products, Doug Farquhar

Doug Farquhar

The rapid rise over the last several years in the number of recalled children's toys along with media coverage of foreign-manufactured products containing lead and other toxins created a public groundswell demanding stricter controls on toys and other children's products. In response, lawmakers have tightened existing toy safety standards, increased enforcement capability of state and federal authorities, and expanded the number of regulated substances, first by state lawmakers, followed by Congress with the enactment of the Consumer Product Safety Improvement Act of 2008. This article explores the extent to which the Consumer Product Safety Improvement Act of 2008 preempts existing …

“T’Was Three Years After Twombly And All Through The Bar, Not A Plaintiff Was Troubled From Near Or From Far.” The Unremarkable Effect Of The U.S. Supreme Court’S Re-Expressed Pleading Standard In Bell Atlantic Corp. V. Twombly, Daniel R. Karon

Daniel R Karon

No U.S. Supreme Court case in recent memory has caused more confusion and suffering than Bell Atlantic Corp. v. Twombly. Post-Twombly commentary falls largely into two camps: Twombly is wrong because it raised Rule 8’s pleading standard or Twombly is right because it did. But scant, if any, discussion exists suggesting that Twombly is right because it didn’t alter this standard. My Article argues that the Court properly honored longstanding Court precedent when deciding Twombly and merely reaffirmed Rule 8’s pleading requirements. After chronicling the Federal Rules’ creation—with an emphasis on Rule 8—my Article dissects the trilogy of U.S. Supreme …

Of Victims, Villains And Fairy Godmothers: Regnant Tales Of Predatory Lending, Carolyn Grose

carolyn grose

The subprime mortgage crisis has exposed a system of predatory and irresponsible lending on a scale we are only beginning to comprehend. Those initially harmed in this crisis – the canaries in the coal mine – were largely low-income people of color. As the crisis has unfolded, the potential solutions available to such borrowers seem to privilege one kind of legal story over all others: the story of the poor person as a victim in need of rescuing.

In order to win, therefore, lawyers who represent these clients often fall back on a default narrative about their clients as unwitting …

Is It Too Easy Being Green? A Behavioral Economics Approach To Determining Whether To Regulate Environmental Marketing Claims, Jeffrey J. Minneti

Jeffrey J Minneti

Employing principles derived from rational choice theory and behavioral economics, the article advocates the promulgation of administrative rules to govern the environmental claims sellers make about their products. The article asserts that the FTC’s current regulatory scheme, a case-by-case approach that draws upon a set of industry guidelines (called the Green Guides), is essentially impotent when considered in light of the frequency with which products in today’s market bear false or misleading environmental claims. The article is especially timely now, because the FTC is currently engaged in its own evaluation of the Green Guides’ effectiveness. While traditional rational choice theorists …

Intent And Empirics: Race To The Subprime, Carol N. Brown

Carol N Brown

ABSTRACT INTENT AND EMPIRICS: RACE TO THE SUBPRIME The United States’ history of racially discriminatory banking, housing, and property policies created a community of black Americans accustomed to exploitative financial services and vulnerable to victimization by subprime lenders. My thesis is that black borrowers are experiencing a new iteration of intentional housing discrimination in the twentieth and twenty-first centuries; lenders identified a vulnerable “emerging market” of black homeowners and borrowers and knowingly targeted them to receive subprime or predatory loan products when equally situated white borrowers were given superior, prime mortgage products. This Article explores how disparate lending practices coupled …

A Horse Of A Different Color: A Study Of Color Bias, Anti-Trust, And Restraint Of Trade Violations In The Equine Indsutry, Mary W. Craig

Mary W Craig

In 2000, Kay Floyd sued the American Quarter Horse Association, and changed not only the way the Association did business, but changed the law as it applied to voluntary associations. The court ruled that an association cannot economically discriminate against some of its members and artificially devalue the property held by those members. Subsequently, the American Quarter Horse Association has changed its own registration rules to reflect the principle behind the Floyd suit, even though the parties settled and dismissed the case. A sister equine association in Texas, however, has refused to amend its rules concerning equine registration, resulting in …

Trust In The Shadows: Law, Behavior And Financial Re-Regulation, Raymond H. Brescia

Raymond H Brescia

In the deep throes of the Great Depression, in an effort to restore faith in America’s economy, the Roosevelt Administration promoted the development of voluntary codes of conduct to govern employment and manufacturing practices across hundreds of industries. Compliance with these codes permitted a company to display a Blue Eagle, which was supposed to signify support for New Deal efforts, and that the company was trustworthy. In this way, the Blue Eagle served as a heuristic—a cognitive shortcut— that helped consumers identify those companies engaged in fair practices so that those consumers could show their support for the recovery effort …

How Can States Protect Their Policies In Federal Class Actions?, Lucas Watkins

Lucas Watkins

More than any other procedural device, class actions have substantive goals. By allowing negative-value suits and collective punishment for widespread wrongs, class actions allow plaintiffs and defendants to protect rights that would otherwise go unvindicated. States also use class actions to implement industrial and consumer protection policies. Despite their importance to state policy, however, many state class action rules do not survive the transition into the federal court system. Under the Erie doctrine, federal courts apply federal class action rules even when state rules are more permissive and even when the state rules are intended to serve important substantive policies. …

Meaningful Mortgage Reform, Jake Werrett

Jake Werrett

Should six-year-old children be able to access “the largest pornography store in history?” They can. Should eleven be the average age that a child first views pornography? It is. Should children between the ages of twelve and seventeen represent the largest group of pornography consumers? They do. It is puzzling how a quintessentially adult activity has increasingly edged-out Saturday morning cartoons, homework, piano lessons, and T-ball games. Perhaps social consensus is that teenagers are best served by searching out porn 150 billion times a year. But, I doubt it.

Juxtaposing limitations on children's exposure to speech in the real-world versus …

Mortgage Market Regulation And Moral Hazard: Equity Stripping Under Sanction Of Law, Vincent Di Lorenzo

Vincent Di Lorenzo

No abstract provided.

Why Parties Enter Into Unfair Deals: The Resentment Factor, Justin Eugene Malbon

Justin Eugene Malbon

Unfair deals are prevalent, which does not serve the interests of the harmed party to a deal nor society more generally. The law tends to focus on providing the harmed party the means for gaining compensation for unfair deals, which distracts attention away from investigating the reasons and motivations for the stronger party offering and entering into unfair deals in the first place. This article seeks to address this deficiency by proposing a theory – here coined “deal theory” – to explain “dealor” behaviors and motivations. The theory builds on insights offered by relational contract theory, the ultimatum bargaining game …

"But He Told Me It Was Safe!": The Expanding Tort Of Negligent Misrepresentation., Alissa J. Strong

Alissa Strong

When more information is available, everyone benefits. Rather than having to rediscover basic wisdom at each crossroad, people can learn from one another’s actions, inactions, failures and successes. However, the availability of shared information is deeply threatened by laws and judicial doctrines that favor blind reliance on advice and then encourage suits against faulty information providers, if, in following the advice, the listener is harmed. One such law is the doctrine of negligent misrepresentation leading to physical harm as codified in the Restatement (Second) of Torts Section 311. Because it is largely written in broad language, it has been applied …

Stepping Up To The Plate: The Google-Doubleclick Merger And The Role Of The Federal Trade Commission In Protecting Online Data Privacy, Eli Edwards

Eli Edwards

The recent acquisition of DoubleClick by Google was seen by privacy organizations such as the Electronic Privacy Information Center, the Center for Digital Democracy, and others as an opportunity to have those questions answered by U.S. and EU regulators. But the merger was approved without conditions, despite the work of those concerned with privacy to encourage the merger reviews on both sides of the Atlantic to consider the implications of one company having so much personally identifiable data of Web users as a factor. The point of this paper is not to argue that the merger should have been denied, …

Where's The Party: Do Class Action Plaintiffs Really Prefer State Courts?, Neil J. Marchand

Neil J. Marchand

Scholars and interest groups have discussed litigants’ behavior in the class action context. This paper uses empirical data to determine whether class action plaintiffs actually prefer to litigate their suits in state courts. Despite well-reasoned conjectures on the subject, to date there is a paucity of empirical data on class action litigation, especially at the state court level. This scarcity has thwarted analysis of the likelihood of class certification in the state courts, the Class Action Fairness Act of 2005’s (CAFA) total impact on the judiciary, and the predictability of class action litigation. This study aims to start filling the …

Deliberative Democracy On Air: Reinvigorate Localism-Resuscitate Radio's Subversive Past, Akilah N. Folami

Akilah N Folami

Radio, once the vibrant center of deliberative democracy, is now widely regarded as a commercialized wasteland. As the FCC, Congress, and the courts reconsider current media policy in light of the public outcry over the lack of diverse content on the nation’s radio airwaves, many scholars and media reformists attribute the commercial marginalization of radio to deregulation, and the resulting consolidation in radio ownership and homogenization of radio content. They argue for more local news and public affairs programming as a remedy to this problem. This article builds on such arguments but further posits that local music and popular cultural …

Fannie Mae And Freddie Mac And The Future Of Federal Housing Finance Policy: A Study Of Regulatory Privilege, David J. Reiss

David J Reiss

The federal government recently placed Fannie Mae and Freddie Mac, the government-chartered, privately owned mortgage finance companies, in conservatorship. These two massive companies are profit-driven, but as government-sponsored enterprises they also have a government-mandated mission to provide liquidity and stability to the United States mortgage market and to achieve certain affordable housing goals. How the two companies should exit their conservatorship has implications that reach throughout the global financial markets and are of key importance to the future of American housing finance policy.

While the American taxpayer will be required to fund a bailout of the two companies that will …

Promoting, Prescribing, And Pushing Pills: Understanding The Lessons Of Antipsychotic Drug Litigation, Douglas Mossman, Jill Louise Steinberg

Douglas Mossman

Ineffectiveness of prescription drugs, hidden drug hazards, and advertising violations have led to several drug recalls and numerous lawsuits against pharmaceutical companies in recent years. These suits have involved several varieties of medications, but psychoactive medications have figured especially prominently. A recent $1.4 billion settlement by Eli Lilly & Company related to improper promotion of its top-selling drug olanzapine included the largest individual corporate criminal fine in U.S. history. Improper promotion is far from the sole reason why olanzapine and other “second-generation” antipsychotic (SGA) drugs have become so successful. Rather, the widespread adoption of SGAs represents a collective judgment error …

'Wishin And Hopin And Thinkin And Prayin, Plannin And Dreamin:' The Narrative Theor[Ies] Of Predatory Lending, Carolyn Grose

carolyn grose

This is an article that uses a predatory lending case as a vehicle to examine the metaphor of the lawyer as storyteller. For many years and in many law reviews now, we have been reading and writing about the relationship between narrative and story and the law. I add my voice once again to this discussion by examining more closely this idea that as representors of clients, lawyers are constructors and tellers of stories. Specifically, I examine the process lawyers go through and the choices lawyers make in figuring out what stories to tell and how to tell them.

The …

Tainted Loans: Towards A Mass Torts Approach To Subprime Mortgage Litigation, Raymond H. Brescia

Raymond H Brescia

A poison has entered the financial bloodstream. The subprime mortgage crisis and the wider financial crisis it has spawned have caused the erosion of trillions of dollars in wealth, destroyed whole communities and the dislocation of millions of homeowners. Yet, unlike in other situations where toxic products have caused widespread harm, to date, we have not seen an avalanche of litigation, large jury awards, massive settlements compensating victims and financial ruin for the distributors of those products. Some of this is changing, however. Litigation arising out of the present financial crisis is hitting the courts, including suits alleging discrimination in …

Hold-Ups And Highway Robberies: A Proposal To Return To The Pre-Bell Atlantic 12(B)(6) Pleading Standard While Subsidizing Defendants' Discovery Costs (Including Discovery-Related Attorney Fees) In Meritless Cases, Anthony C. Biagioli

Anthony C Biagioli

Antitrust pleading practice is plagued by a normative dilemma. Under a lenient pleading standard, plaintiffs may proceed to discovery on a showing of parallel conduct alone, leading undeserving plaintiffs to extort blameless defendants into settling meritless lawsuits through the threat of imposing on defendants prohibitive discovery costs. Under a more stringent pleading standard, plaintiffs might be required to plead more than parallel conduct, leading deserving plaintiffs to see their complaints dismissed at the pleading stage due to a lack of sufficient factual support for their claims. The latter is a function of blameworthy defendants’ asymmetric information advantage through which defendants …

The Coase Theorem And The Power To Increase Transaction Costs, Jeff Sovern

Jeff Sovern

The Coase Theorem maintains that in the absence of transaction costs, in Francesco Parisi's words, "regardless of the initial allocation of property rights and choice of remedial protection, the market will determine ultimate allocations of legal entitlements, based on their relative value to different parties." The paper explores the consequences for Coase's Theorem when a party without the initial allocation of a property right can manipulate the transaction costs of the party with the initial allocation in asserting that right. A party wishing to obtain the ultimate entitlement may find it preferable not to purchase the entitlement but to increase …

Poised On The Precipice: A Critical Examination Of Privacy Litigation, Andrew B. Serwin

Andrew B. Serwin

A collection of factors has caused the United States to be poised on the precipice of a new wave of litigation—litigation arising from the improper use or collection of information. Public concern over privacy is ever increasing while, and some would say because, information has become critical to our everyday existence. In what is now a self-reinforcing cycle, increased public concern has caused an exponential increase in regulations, and the new regulations have caused increased attention and public concern because many of the new laws require public disclosure of security breaches, which increases societal concerns over privacy. Security breach laws, …

Website Proprietorship And Cyber Harassment, Nancy Kim

Nancy Kim

While harassment and bullying have always existed, when such behavior is conducted online, the consequences can be uniquely devastating. The anonymity of harassers, the ease of widespread digital dissemination, and the inability to contain and/or eliminate online information aggravate the nature of harassment on the Internet. Furthermore, Section 230 of the Communications Decency Act provides website sponsors with immunity for content posted by others and no incentive to remove offending content. Given the unique nature of cyber harassment, ex post punitive measures are inadequate to redress grievances. In this Article, I propose the imposition of proprietorship liability upon website sponsors …

Greenspan's Lament: Incentive Mechanisms And The Contamination Of The Safety And Soundness Of Depository Institutions From Risky Derivative Securities, Daniel J. Boyle

Daniel J Boyle

The attached paper attempts to synthesize the foundational tools of industrial organization economics and how they interacted with law and public policy choices to explain the genesis of the current competitive dynamics in banking and financial products. The paper examines the underlying assumptions of microeconomic theories of efficiency and competitive equilibrium including externalities, information asymmetry, game theory and mechanism design, and how those combine dynamically with the process of formation, implementation and adjudication of the law to allow actors to rationally and systematically adjust their ownership structures and their transaction costs to internalize benefits and externalize costs and risk. This …

The Development Of Consumer Protection Law In Bangladesh: A Critical Comparative Study, Zafrin Andaleeb, Abu Noman Mohammad Atahar Ali

Abu Noman Mohammad Atahar Ali

ABSTRACT Consumer protection is a very important issue all over the world. Specially in third world countries it is more important where the life and liberty of the people are often intruded. It deserves mention that even 35 years after the independence of Bangladesh, the country is yet to have a comprehensive consumer protection law. Though it is true that many of the political governments promised in their manifesto to have a consumer protection law but after empowerment they seldom take care of it. In many countries of the South Asian region consumer protection is a very important movement and …

Learning From Our History: Evaluating The Modern Housing Finance Market In Light Of Ancient Principles Of Justice, Brian M. Mccall

Brian M McCall

Since I first accepted an invitation to join this symposium, the subprime mortgage crisis has exploded into a systemic financial crisis. Analysis and pundits alike seem on a quest to outdo each other in using dramatic phrases to describe its historic proportions. The causes of a crisis so large must have a multiplicity of causes lying in the realms of bank regulation and supervision, the operation and regulation of the securitization market and the derivatives and insurance markets. Yet, the root and spark of the various financial reverberations initiated in the home mortgage finance market. My presentation will focus on …