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Articles 1 - 30 of 32
Full-Text Articles in Consumer Protection Law
The Nightmare Of Dream Advertising, Dustin Marlan
The Nightmare Of Dream Advertising, Dustin Marlan
William & Mary Law Review
Advertisers are attempting to market to us while we dream. This is not science fiction, but rather a troubling new reality. Using a technique dubbed “targeted dream incubation” (TDI), companies have begun inserting commercial messages into people’s dreams. Roughly, TDI works by: (1) creating an association during waking life using sensory cues (for example, a pairing of sounds, visuals, or scents); and (2) as the subject is drifting off to sleep, the association is again introduced with the goal of triggering related dreams with related subject matter. Based on a 2021 American Marketing Association survey, 77 percent of 400 companies …
Detoxing From Clean Claims: Bridging The Gap Between "Clean" And "Dirty" Beauty, Alecsandra Dragus
Detoxing From Clean Claims: Bridging The Gap Between "Clean" And "Dirty" Beauty, Alecsandra Dragus
William & Mary Business Law Review
The clean beauty industry has gained increasing popularity in the last couple of years. This has spurred the development of many brands and impacted what consumers look for in their products. This Note engages in the existing conversation in the beauty industry pertaining to "clean" products by showing that the lack of interference from the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) to set definitional criteria for what constitute ''clean" products has resulted in an increase in the commercialization of health-conscious consumer beliefs based on ambiguous and misleading information. These consumers are stuck in a loop …
Endorsing After Death, Andrew Gilden
Endorsing After Death, Andrew Gilden
William & Mary Law Review
An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and have been increasingly embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Monroe’s name, have successfully brought false endorsement claims under section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a …
Vectors: Immunity In Commercial Aviation, Timothy M. Ravich
Vectors: Immunity In Commercial Aviation, Timothy M. Ravich
William & Mary Business Law Review
COVID-19 nearly wiped out demand for commercial air travel in 2020, driving down passenger traffic by a jaw-dropping 94.3% from the previous year. The airline industry thus understandably lobbied for a government bailout to manage what was nothing short of an existential crisis, with losses exceeding $35 billion. Less worthy of sympathy, however, were the ad hoc policies airlines unhelpfully put in the path of their customers even while securing for themselves $25 billion in payroll grants together with a similar sum in low-interest loans. For example, carriers refused to provide refunds or liquidate travel credits in a straightforward way …
Article Iii Standing, The Sword And The Shield: Resolving A Circuit Split In Favor Of Data Breach Plaintiffs, R. Andrew Grindstaff
Article Iii Standing, The Sword And The Shield: Resolving A Circuit Split In Favor Of Data Breach Plaintiffs, R. Andrew Grindstaff
William & Mary Bill of Rights Journal
The recent proliferation of data breaches is one such event requiring a rethreading of standing doctrine. The Courts of Appeal are currently split on whether to allow or deny standing for data breach plaintiffs—those persons seeking recourse from the entities that fell victim to the breach and therein lost plaintiffs’ data to an unknown third party. Standing requires plaintiffs to show some injury, and how courts approach the concept of injury in these data breach cases determines whether plaintiffs will survive the standing analysis. Despite the disparate treatment of litigants across the circuits, the Supreme Court has repeatedly punted when …
Consumer Electronic Right To Repair Laws: Focusing On An Environmental Foundation, Joshua Turiel
Consumer Electronic Right To Repair Laws: Focusing On An Environmental Foundation, Joshua Turiel
William & Mary Environmental Law and Policy Review
No abstract provided.
Coronavirus "Cures" And The Courts, Chad G. Marzen, Michael Conklin
Coronavirus "Cures" And The Courts, Chad G. Marzen, Michael Conklin
William & Mary Business Law Review
The coronavirus pandemic has drastically affected nearly every aspect of American life. Unfortunately, it has also created an opportunity for those willing to exploit vulnerable citizens by selling fake “cures.” This Article analyzes a lawsuit against televangelist Jim Bakker for doing just that. This Article also calls for increased protection for individuals when a global health pandemic and national emergency have been declared. This Article advocates a novel proposal—the enacting of a federal statute making it a felony for an individual to knowingly sell a fraudulent cure for any disease that has been designated a pandemic by the World Health …
Data Of The Dead: A Proposal For Protecting Posthumous Data Privacy, Kate C. Ashley
Data Of The Dead: A Proposal For Protecting Posthumous Data Privacy, Kate C. Ashley
William & Mary Law Review
No abstract provided.
All That Glitters Is Gold: The Regulation Of Hidden Advertisements And Undisclosed Sponsorships In The World Of Beauty Social Media Influencers, Ashley Luong
William & Mary Business Law Review
What happens when a trusted acquaintance is caught lying? What if these lies have influenced your purchasing decisions? In the realm of social media influencers, the line between authentic opinions and sponsored advertisements is a blurred one. Influencers have considerable marketing power over millions of followers and their brand of authenticity makes them a desirable partner to big corporations seeking to promote their products. Under current FTC regulations, the simplified rule for advertisement disclosure is to make the disclosure “clear and conspicuous” with very little guidance beyond that phrase. Influencers are uncertain how to disclose, some choosing to toe the …
In Conspicuous Terms-- Arbitration Agreements For The Modern Reasonable App User, Michelle Dunbar
In Conspicuous Terms-- Arbitration Agreements For The Modern Reasonable App User, Michelle Dunbar
William & Mary Business Law Review
Two recent decisions regarding the validity of arbitration agreements in mobile apps have come to opposite conclusions despite utilizing the same legal standard and concerning the same app—Uber. While the Federal Arbitration Act strongly favors the validity and importance of arbitration agreements, it appears that judge’s subjectivity based on common knowledge and understanding of apps is influencing the outcome of cases concerning the validity of these arbitration agreements. To the modern app user, are these terms really inconspicuous? For businesses, this could mean that instead of competing in an already saturated app market by enhancing their design and integrating branding …
Investigating Healthcare Fraud: Its Scope, Applicable Laws, And Regulations, Nicole Forbes Stowell, Carl Pacini, Nathan Wadlinger, Jaqueline M. Crain, Martina Schmidt
Investigating Healthcare Fraud: Its Scope, Applicable Laws, And Regulations, Nicole Forbes Stowell, Carl Pacini, Nathan Wadlinger, Jaqueline M. Crain, Martina Schmidt
William & Mary Business Law Review
Healthcare costs are not only an enormous strain on the U.S. economy but are expected to increase in the foreseeable future. Not surprisingly, clever fraudsters view the healthcare industry as a lucrative and attractive hotspot for illegal activity. Although federal and state governments have increased their funding and prosecution efforts relating to healthcare fraud, this fraud continues to be a major threat to the U.S. economy and every patient and consumer. The impact of healthcare fraud is substantial and far-reaching. Healthcare fraud in the U.S. affects not only the government, but also insurance companies, patients, healthcare providers, and consumers. This …
Securities Exchange Act Section 4e(A): Toothless "Internal-Timing Directive" Or Statute Of Limitation?, Richard E. Brodsky
Securities Exchange Act Section 4e(A): Toothless "Internal-Timing Directive" Or Statute Of Limitation?, Richard E. Brodsky
William & Mary Business Law Review
The Securities and Exchange Commission has a problem, and everyone knows it: its investigative process suffers from excessive delay, which harms both individuals and entity it investigates and its own enforcement program. This problem has long been recognized and complained about, but never remedied.
In 2010, Congress passed a law specifically designed to solve the problem of excessive delay but, the way the SEC has read the law—which has been acquiesced in by the courts and ignored by subsequent Congresses—has rendered it toothless and essentially meaningless. This has been accomplished, first, by the Commission’s cabined interpretation of the purpose of …
Non-Transparent Pbm Cash Flows: Balancing Market Forces Under A Reluctant Legislative Regime, John Mcguinness
Non-Transparent Pbm Cash Flows: Balancing Market Forces Under A Reluctant Legislative Regime, John Mcguinness
William & Mary Business Law Review
No abstract provided.
The Internet Of Bodies, Andrea M. Matwyshyn
The Internet Of Bodies, Andrea M. Matwyshyn
William & Mary Law Review
This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal …
Makeup Call: How Cosmetic Product Use Affects Women Absent Federal Regulation, Gabrielle Eriquez
Makeup Call: How Cosmetic Product Use Affects Women Absent Federal Regulation, Gabrielle Eriquez
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
The Misuse Of Product Misuse: Victim Blaming At Its Worst, Robert A. Adler, Andrew F. Popper
The Misuse Of Product Misuse: Victim Blaming At Its Worst, Robert A. Adler, Andrew F. Popper
William & Mary Business Law Review
This Paper addresses the legal consequences that surface when a consumer uses a product in a manner not specifically intended by that product’s designer or manufacturer. If a product is used in a reasonably foreseeable manner, the fact that the use is at odds with a manufacturer’s intention should not be a basis to deny tort liability or limit the regulatory options of the Consumer Product Safety Commission. If a product proves to be unsafe, defective, dangerous, or otherwise hazardous to users and consumers, use patterns should not be the primary determinant in assessing regulatory and common law sanctions or …
Determining The Deception Of Sexual Orientation Change Efforts, John M. Satira
Determining The Deception Of Sexual Orientation Change Efforts, John M. Satira
William & Mary Law Review
No abstract provided.
Viewing Unconscionability Through A Market Lens, David Gilo, Ariel Porat
Viewing Unconscionability Through A Market Lens, David Gilo, Ariel Porat
William & Mary Law Review
This Article calls for a move to a new phase in courts’ attitudes toward consumer contracts. Currently, courts applying the unconscionability doctrine to consumer contracts focus on the characteristics of the parties and the transaction. We suggest that rather than examining each consumer contract in isolation, courts should inquire whether there is competition, or potential competition, over contracts in the supplier’s market. As we show, competition over contracts is different from competition over products or services. In order to assess the degree of competition, or potential competition, over contracts, courts should look at the particular features of the supplier’s market …
Reading The Product: Warnings, Disclaimers, And Literary Theory, Laura A. Heymann
Reading The Product: Warnings, Disclaimers, And Literary Theory, Laura A. Heymann
Faculty Publications
No abstract provided.
Introduction: The Boundaries Of Intellectual Property Symposium, I. Trotter Hardy
Introduction: The Boundaries Of Intellectual Property Symposium, I. Trotter Hardy
William & Mary Law Review
No abstract provided.
Privacy By Deletion: The Need For A Global Data Deletion Principle, Benjamin J. Keele
Privacy By Deletion: The Need For A Global Data Deletion Principle, Benjamin J. Keele
Library Staff Publications
With global personal information flows increasing, efforts have been made to develop principles to standardize data protection regulations. However, no set ofprinciples has yet achieved universal adoption. This note proposes a principle mandating that personal data be securely destroyed when it is no longer necessary for the purpose for which it was collected. Including a data deletion principle in future data protection standards will increase respect for individual autonomy and decrease the risk of abuse of personal data. Though data deletion is already practiced by many data controllers, including it in legal data protection mandates wil further the goal of …
Deception, Decisions, And Investor Education, Jayne W. Barnard
Deception, Decisions, And Investor Education, Jayne W. Barnard
Faculty Publications
Tens of millions of dollars each year are spent on investor education. Because older adults (those aged sixty and older) are disproportionately victims of investment fraud schemes, many educational programs are targeted at them. In this Article, Professor Barnard questions the effectiveness of these programs. Drawing on recent studies from marketing scholars, neurobiologists, social psychologists, and behavioral economists examining the ways in which older adults process information and make decisions, she offers a model of fraud victimization (the "deception/decision cycle") that explains why older adults are often vulnerable to investment fraud schemes. She then suggests that many of the factors …
Renting The Good Life, Jim Hawkins
Renting The Good Life, Jim Hawkins
William & Mary Law Review
Academic literature and court decisions are replete with calls to ban or severely inhibit the rent-to-own industry. The argument is simple enough: Rent-to-own firms charge exorbitant prices to the most needy and vulnerable segments of society. The case for burdensome regulations, however, is much more difficult to make out than past scholarship has admitted. For the most part, academics have proceeded directly to proposing specific regulations for the industry without first carefully analyzing the rent-to-own business or the reasons for imposing drastic regulations. This Article examines the theoretical justifications for regulating the rent-to-own industry against the backdrop of interviews I …
Rolling Over Borrowers: Preventing Excessive Refinancing And Other Necessary Changes In The Payday Loan Industry, Richard J. Thomas
Rolling Over Borrowers: Preventing Excessive Refinancing And Other Necessary Changes In The Payday Loan Industry, Richard J. Thomas
William & Mary Law Review
No abstract provided.
Are Credit Card Late Fees Unconstitutional?, Seana Valentine Shiffrin
Are Credit Card Late Fees Unconstitutional?, Seana Valentine Shiffrin
William & Mary Bill of Rights Journal
State Farm Mutual Automobile Insurance Co. v. Campbell articulated serious and specific constitutional constraints upon the imposition of punitive damages. Justice Kennedy's majority opinion announced that, apart from exceptional cases, punitive damages should not exceed nine times the amount of the actual losses sustained by the plaintiff and should usually be far lower. Indeed, the opinion observed, they typically should be much lower, citing double, treble, and quadruple multipliers as "instructive" examples. Some commentators have worried that the decision could adversely affect consumer interests by offering insulation for tortious behavior that is difficult to detect or litigate. This Article will …
Toward A New Model Of Consumer Protection: The Problem Of Inflated Transaction Costs, Jeff Sovern
Toward A New Model Of Consumer Protection: The Problem Of Inflated Transaction Costs, Jeff Sovern
William & Mary Law Review
Contrary to the predictions of conventional economic theory, firms often benefit by increasing consumer transaction costs. Firms do so by, for example, obscuring contract terms in a variety of ways, such as providing them after the contract is agreed to, enclosing them with other more interesting information, using small print, and omitting important terms such as arbitration fees from the written contract. Firms also benefit by taking advantage of predictable consumer behaviors, such as the tendency of consumers not to seek rebates, to overload when provided with too much information, and to ignore dull information when overshadowed by vivid information. …
Gaps, Inexperience, Inconsistencies, And Overlaps: Crisis In The Regulation Of Genetically Modified Plants And Animals, Gregory N. Mandel
Gaps, Inexperience, Inconsistencies, And Overlaps: Crisis In The Regulation Of Genetically Modified Plants And Animals, Gregory N. Mandel
William & Mary Law Review
The regulation of genetically modified products pursuant to statutes enacted decades prior to the advent of biotechnology has created a regulatory system that is passive rather than proactive about risks, has difficulty adapting to biotechnology advances, and is highly fractured and inefficient-transgenic plants and animals are governed by at least twelve different statutes and five different agencies or services. The deficiencies resulting from this piecemeal approach to regulation unnecessarily expose society and the environment to adverse risks of biotechnology and introduce numerous inefficiencies into the regulatory system. These risks and inefficiencies include gaps in regulation, duplicative and inconsistent regulation, unnecessary …
Pharmaceutical Dispensing In The "Wild West": Advancing Health Care And Protecting Consumers Through The Regulation Of Online Pharmacies, Sean P. Haney
William & Mary Law Review
No abstract provided.
Reporting Substantial Product Safety Hazards Under The Consumer Product Safety Act: The Products Liability Interface, Timothy Zick
Reporting Substantial Product Safety Hazards Under The Consumer Product Safety Act: The Products Liability Interface, Timothy Zick
Faculty Publications
No abstract provided.
Consumer Arbitration As An Alternative To Judicial Preseizure Replevin Proceedings, Alan N. Resnick
Consumer Arbitration As An Alternative To Judicial Preseizure Replevin Proceedings, Alan N. Resnick
William & Mary Law Review
No abstract provided.