Law Commons^™

Time For Change: Stepping Up The Fda's Regulation Of Dietary Supplements To Promote Consumer Safety And Awareness, George Kennett

Journal of Law and Health

People are often looking for that quick fix when it comes to their health. With dietary supplements so readily available on the market, the public assume that they have been through rigorous testing. Dietary supplements are not tested as much as consumers believe. The Food and Drug Administration (FDA) does not initiate the same type of testing and analysis for supplements as it does for food, drink and medication. Given that people are now choosing supplemental meal replacements and the like, as opposed to whole foods, regulations drastically need to be stepped up in an effort to emphasise public safety. …

Ecosystem Competition And The Antitrust Laws, Daniel A. Crane

Articles

Conventional antitrust norms analyze market power—as a stepping stone to anticompetitive effects and, hence, prohibited conduct—from the perspective of product substitutability. Two goods or services are said to compete with one another when they are reasonably interchangeable from the perspective of consumers, or to put it in more formal economic terms, when there is cross-elasticity of demand between them. Conversely, when two goods or services are not reasonably interchangeable, they are not horizontally related and are said not to compete with one another. Since a concern over horizontal agreements and horizontal effects dominate antitrust—courts even analyze vertical agreement or merger …

Deceptively Simple: The Arkansas Deceptive Trade Practices Act, Margaret E. Rushing

Arkansas Law Review

In the 2017 legislative session, the Arkansas General Assembly significantly changed the Arkansas Deceptive Trade Practices Act (“ADTPA”). These changes now prohibit private class actions under the ADTPA and require plaintiffs to prove additional elements of reliance and actual financial loss when bringing a claim. The changes appear to limit the ability of a consumer to bring a private action under the ADPTA. With these changes, Arkansas joins a minority of jurisdictions with deceptive trade practices acts that increase a plaintiff’s burden and restrict private class actions.

Touching, Tapping, And Talking: The Formation Of Contracts In Cyberspace, Mark E. Budnitz

Mark E. Budnitz

No abstract provided.

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

Articles

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …

The Gdpr: It Came, We Saw, But Did It Conquer?, Leila Javanshir

Seattle University Law Review

On February 1, 2019, the Seattle University Law Review held its annual symposium at the Seattle University School of Law. Each year, the Law Review hosts its symposium on a topic that is timely and meaningful. This year, privacy and data security professionals from around the globe gathered to discuss the current and future effects of the General Data Protection Regulation (GDPR) that was implemented on May 25, 2018. The articles and essays that follow this Foreword are the product of this year’s symposium.

Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes

Wayne R. Barnes

No abstract provided.

Books And Olive Oil: Why Antitrust Must Deal With Consolidated Corporate Power, Carl T. Bogus

University of Michigan Journal of Law Reform

Following an epic battle in the marketplace between Apple and major book publishers, on one side, and Amazon, on the other side, the United States Department of Justice and thirty-three states filed an antitrust lawsuit against Apple and the publishers, alleging that they had conspired to fix the prices of ebooks. Both the district court and a divided panel of the United States Court of Appeals for the Second Circuit decided the case in the government’s favor. This Article argues that government regulators and the courts took the wrong side in the dispute and did so because of fundamental flaws …

Let’S Be Reasonable: The Consumer Expectations Test Is Simply Not Viable To Determine Design Defect For Complex Autonomous Vehicle Technology, Emily Frascaroli, John Isaac Southerland, Elizabeth Davis, Woods Parker

Journal of Law and Mobility

Although highly automated vehicles (“HAVs”) have potential to reduce deaths and injuries from traffic crashes, product liability litigation for design defects in vehicles incorporating autonomous technology is inevitable. During the early stages of implementation, courts and juries will be forced to grapple with the application of traditional product liability principles to a never before experienced category of highly technical products. Recent decisions limiting the use of the consumer expectations test in cases involving complex products prompted the authors to examine more closely the history behind and the future viability of the consumer expectations test in HAV litigation.

Touching, Tapping, And Talking: The Formation Of Contracts In Cyberspace, Mark E. Budnitz

Nova Law Review

No abstract provided.

Expanding Access To Remedies Through E-Court Initiatives, Amy J. Schmitz

Faculty Publications

Virtual courthouses, artificial intelligence (AI) for determining cases, and algorithmic analysis for all types of legal issues have captured the interest of judges, lawyers, educators, commentators, business leaders, and policymakers. Technology has become the “fourth party” in dispute resolution through the growing field of online dispute resolution (ODR), which includes the use of a broad spectrum of technologies in negotiation, mediation, arbitration, and other dispute resolution processes. Indeed, ODR shows great promise for expanding access to remedies, or justice. In the United States and abroad, however, ODR has mainly thrived within e-commerce companies like eBay and Alibaba, while most public …

Nano-Sunscreens - A Double-Edged Sword In Protecting Consumers From Harm: Viewing Australian Regulatory Policies Through The Lenses Of The European Union, S M. Solaiman, Jennifer Algie, Shahnaz Bakand, Ronald Sluyter, Vitor Sencadas, Michael L. F Lerch, Xu-Feng Huang, Konstantin K. Konstantinov, Philip J. Barker

Faculty of Law, Humanities and the Arts - Papers (Archive)

Nanotechnology has the potential to bring about revolutionary changes in manufacturing products, including sunscreens. However, a knowledge gap between benefits and detriments of engineered nano-materials used in sunscreens exists, which gives rise to safety concerns. This article is concerned with the protection of consumers without impairing the embellishment of this promising technology. It is widely argued that the harm associated with nano-sunscreens may only occur under certain conditions related mainly to users skin vulnerability, which can be avoided by informed and careful use of such a product. We thus recognize the need for fostering the growth of nanotech simultaneously with …

A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach

Michigan Law Review

Article III standing is a central requirement in federal litigation. The Supreme Court’s Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeo’s …

Digital Market Perfection, Rory Van Loo

Michigan Law Review

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. Whereas …

Antitrust's Unconventional Politics, Daniel A. Crane

Articles

Antitrust law stands at its most fluid and negotiable moment in a generation. The bipartisan consensus that antitrust should solely focus on economic efficiency and consumer welfare has quite suddenly come under attack from prominent voices calling for a dramatically enhanced role for antitrust law in mediating a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values. To the bewilderment of many observers, the ascendant pressures for antitrust reforms are flowing from both wings of the political spectrum, throwing into confusion a conventional understanding that pro-antitrust sentiment tacked left and …

When Good Policies Go Bad: Controlling Risks Posed By Flawed Incentive-Based Compensation, Nicole Vincent

Cleveland State Law Review

The recent Wells Fargo scandal revealed the harm that can result from flawed incentive-based compensation arrangements. Large financial institutions have both a legal and an ethical obligation to ensure that any incentive-based compensation arrangements that are in place will not encourage risky or fraudulent employee behavior. The continued existence of inappropriate and poorly structured arrangements demonstrates that existing regulations are inadequate to ensure compliance and protect consumers. Regulations should include increased penalties and should more evenly distribute the burden of oversight and compliance between the public and private sectors. In addition to regulatory reform, the government should prosecute culpable high-level …

Behavioral Finance Symposium Summary Paper, Michael S. Barr, Annabel Jouard, Andrew Norwich, Josh Wright, Katy Davis

Other Publications

On September 14-15, 2017, the University of Michigan’s Center on Finance, Law, and Policy and behavioral science research and design lab ideas42 brought together influential leaders from academia, government, nonprofits and the financial sector for a two-day symposium on behavioral finance. Behavioral finance is the study of how behavioral biases and tendencies affect financial decisions, and in turn how those impact financial markets.

Consumer Bitcredit And Fintech Lending, Christopher K. Odinet

Faculty Scholarship

The digital economy is changing everything, including how we borrow money. In the wake of the 2008 crisis, banks pulled back in their lending and, as a result, many consumers and small businesses found themselves unable to access credit. A wave of online firms called fintech lenders have filled the space left vacant by traditional financial institutions. These platforms are fast making antiques out of many mainstream lending practices, such as long paper applications and face-to-face meetings. Instead, through underwriting by automation — utilizing big data (including social media data) and machine learning — loan processing that once took days …

An Examination Of Product Hopping By Brand-Name Prescription Drug Manufacturers: The Problem And A Proposed Solution, Daniel Burke

Cleveland State Law Review

The balance between incentivizing innovation through exclusivity protection and maintaining competitive market conditions—including prices for consumers—is a difficult line to toe. Product hopping has characteristics that constitute a violation of the Sherman Antitrust Act because companies can maintain monopoly power in the pharmaceutical market. While some monopoly power is justified as an incentive for incredibly costly innovation, extended periods of exclusivity harms consumers by keeping prescription drug prices artificially inflated. Allowing generic drug manufacturers to compete sooner in the prescription drug market by disallowing product hopping by name-brand pharmaceutical drug companies will aid in driving down prices. Courts should adopt …

Localism, Labels And Animal Welfare, Samuel R. Wiseman

Scholarly Publications

The law does relatively little to improve the welfare of animals raised for food. In the short term, at least, market-based solutions appear to have more promise as a means of promoting farm animal welfare, as consumers increasingly seek out local and humanelyraised meat and eggs. To aid consumers in identifying these products, certification systems of varying degrees of rigor exist, but even these are of little use to consumers in the restaurant context, which accounts for a large percentage of meat consumption. Patrons see only finished meals, making fraud difficult to detect, and a recent newspaper investigation suggests that …

Crafting Next Generation Eco-Label Policy, Jason J. Czarnezki, Katrina F. Kuh

Elisabeth Haub School of Law Faculty Publications

Eco-labels present a promising policy tool in the effort to achieve sustainable consumption. Many questions remain, however, about the extent to which eco-labels can contribute to sustainability efforts and how to maximize their effectiveness. This Article deploys research from evolutionary psychology, behavioral law and economics, and norm theory to offer specific insights for the design and implementation of eco-labels to enhance their influence on sustainable consumer choice. Notably, this research suggests possibilities for eco-labels to shape or expand consumer preferences for green goods, and thereby enhance eco-label influence on consumer behavior by extending it beyond eco-minded consumers. We suggest that …

Intellectual Property In Experience, Madhavi Sunder

Michigan Law Review

In today’s economy, consumers demand experiences. From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters— they want to be them. They don the robes of Gryffindor, flick their wands, and drink the butterbeer. The owners of fantasy properties understand this, expanding their offerings from light sabers to the Galaxy’s Edge®, the new Disney Star Wars immersive theme park opening in 2019.Since Star Wars, Congress and the courts have abetted what is now a $262 billion-a-year industry in merchandising, fashioning “merchandising rights” appurtenant to copyrights and trademarks that give fantasy owners …

Consumer Bitcredit And Fintech Lending, Christopher K. Odinet

Christopher K. Odinet

Law Library Blog (December 2017): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Consumer Class Actions: Who Are The Real Winners?, Edward F. Sherman

Maine Law Review

The class action is one of the most controversial procedural devices in the American legal system. In the years since an expanded class action rule was adopted in 1966, class actions have grown in scope and number, and suits by consumers have accounted for an increasing share of class actions suits. By allowing individuals to sue not only for themselves, but also on behalf of others similarly situated, the class action “empowers plaintiffs to bring cases that otherwise either would not be possible or would only be possible in a very different form.” Business critics see this as enabling “lawyers …

Law Library Blog (November 2017): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Do We Need Help Using Yelp? Regulating Advertising On Mediated Reputation Systems, David Adam Friedman

University of Michigan Journal of Law Reform

Yelp, Angie’s List, Avvo, and similar entities enable consumers to access an incredibly useful trove of information about peer experiences with businesses and their goods and services. These “mediated reputation systems,” gatherers and disseminators of consumer peer opinions, are more trusted by consumers than traditional commercial channels. They are omnipresent, carried everywhere on mobile devices, and used by consumers ready to transact.

Though this information is valuable, a troubling conflict emerges in its presentation. Most of these reputation platforms rely heavily on advertising sales to support their business models. This reliance compels these entities to display persuasive advertising right along …

Further Reflections On Antitrust And Wealth Inequality, Daniel A. Crane

Articles

Since I have already published a lengthy academic article on antitrust and wealth inequality, I have the freedom of using this piece to present the key arguments unvarnished by dense citations or technical details (readers interested in those things should consult my earlier article) and to respond to some of the criticisms of my article that have since been levied. My thesis, before and now, is this: claims that antitrust enforcement advances income or wealth progressivity are overstated and rest on simplistic and unrealistic understandings of how antitrust actually operates. While some enforcement actions may generate progressive results, others will …

Empowering Consumers Through Online Dispute Resolution, Amy J. Schmitz

Faculty Publications

We transact online every day, hoping that no problems will occur. However, our purchases are not always perfect: goods may not arrive; products may be faulty; expectations may go unmet. When this occurs, we are often left frustrated, with no means for seeking redress. Phone calls to customer service are generally unappealing and ineffective, and traditional face-to-face or judicial processes for asserting claims are impractical after weighing costs against likely recovery. This is especially true when seeking redress requires travel, or for crossborder claims involving jurisdictional complexities. This situation has created a need for online dispute resolution (“ODR”), which brings …

Covering The Care: Cost Sharing Reductions In Nh, Jo Porter, Lucy C. Hodder

Law Faculty Scholarship

This brief uses national data to describe the NH population who received Cost Sharing Reductions for coverage on the NH Marketplace.