Consumer Protection Law Commons^™

An Essay On The Quieting Of Products Liability Law, Aaron D. Twerskii

Cornell Law Review

For several decades, courts and commentators have disagreed as to whether the standard for liability in product design defect cases should be based on risk-utility tradeoffs or disappointed consumer expectations. Although a strong majority opt for risk-utility a significant minority of courts adopt the consumer expectations test. This Essay contends that as a practical matter in jurisdictions that allow for recovery in design defect cases on a consumer expectations theory, plaintiffs introduce a reasonable alternative design as the predicate for recovery. In fifteen of the seventeen states that allow recovery based on consumer expectations the author could not find a …

Economic Rationality And Ethical Values In Design-Defect Analysis: The Trolley Problem And Autonomous Vehicles, W. Bradley Wendel

Cornell Law Faculty Publications

The trolley problem is a well-known thought experiment in moral philosophy, used to explore issues such as rights, deontological reasons, and intention and the doctrine of double effect. Recently it has featured prominently in popular discussions of decision making by autonomous vehicle systems. For example, a Mercedes-Benz executive stated that, if faced with the choice between running over a child that had unexpectedly darted into the road and steering suddenly, causing a rollover accident that would kill the driver, an automated Mercedes would opt to kill the child. This paper considers not the ethical issues raised by such dilemmas, but …

The End Of Bargaining In The Digital Age, Saul Levmore, Frank Fagan

Cornell Law Review

Bargaining is a fundamental characteristic of many markets and legal disputes, but it can be a source of inefficiency. Buyers often waste resources by searching for information about past prices, where a seller already holds that information. A second—and novel—source of social loss is that some buyers will avoid otherwise beneficial bargains and sellers with negotiable prices because they recognize the seller’s advantage in any haggling match. They might also hide information that reveals their willingness to pay. This Article argues for mandated disclosure of past prices, and occasionally settlements, where these have been negotiable. The rule requires uniform or …

Consumer Financial Protection And Human Rights, Chrystin Ondersma

Cornell International Law Journal

This summer the Consumer Financial Protection Bureau proposed a rule that would restrict the use of mandatory arbitration clauses in consumer financial credit contracts. With the administration and Congress seemingly eager to pull back on consumer financial regulations, it is crucial to examine the rights at stake. Many financial institutions have agreed to protect and promote human rights, so pressure from consumers, human rights organizations, and consumer protection advocates may succeed even though Congress has declined to promulgate the CFPB’s proposed rule. This Article argues that the existing binding, mandatory arbitration system in consumer credit contracts is inconsistent with human …

Consumer Internet Standard Form Contracts In India: A Proposal, Robert A. Hillman

Cornell Law Faculty Publications

India's burgeoning Internet commerce sector has made consumers susceptible to standard-form contracts. Due to the slim likelihood of consumers reading the terms, vendors may often draft heavy-handed terms in the contracts, thereby adversely impacting consumer interests. The Indian legal framework in this regard is inadequate. This article evaluates the existing suggestions on standard-form contracts and argues that none of them safeguard consumer interests sufficiently. Instead, based on the American Law Institutes' Principles of the Law of Software Contracts, the article proposes a disclosure approach that would benefit the interests of Indian consumers engaged in commerce on the Internet.

Fixing Failure To Warn, Aaron D. Twerski, James A. Henderson Jr.

Cornell Law Faculty Publications

Design-defect and failure-to-warn cases share the same structural elements. Just as the defendant cannot defend a case premised on defective design without knowing the specifics of how the plaintiff would redesign the product to make it safer, so with regard to defective warnings the plaintiff cannot challenge the reasonableness of the defendant's marketing or whether better warnings would have saved the plaintiff from injury without knowing the specifics of the proposed warnings. No court would accept as adequate a statement by the plaintiff that she has a general idea for a reasonable alternative design (RAD), and no court should accept …

A Randomized Experiment Assessing The Accuracy Of Microsoft's "Bing It On" Challenge, Ian Ayres, Emad H. Atiq, Sheng Li, Michelle Lu, Tom Maher, Christine Tsang

Cornell Law Faculty Publications

In advertisements associated with its "Bing It On" campaign, Microsoft claimed that "people preferred Bing web search results nearly 2:1 over Google in blind comparison tests." We tested Microsoft's claims by way of a randomized experiment involving U.S.-based Amazon's. Mechanical Turk ("MTurk") subjects and conducted on Microsoft's own www.bingiton.com website. We found that (i) a statisticallysignificant majority of participants preferred Google search results to Bing search results (53% to 41%); and (ii) participants were significantly less likely to prefer Bing results when randomly assigned to use popular search terms or self-selected search terms instead of the search terms Microsoft recommends …

Privacy As Product Safety, James Grimmelmann

Cornell Law Faculty Publications

Online social media confound many of our familiar expectations about privacy. Contrary to popular myth, users of social software like Facebook do care about privacy, deserve it, and have trouble securing it for themselves. Moreover, traditional database-focused privacy regulations on the Fair Information Practices model, while often worthwhile, fail to engage with the distinctively social aspects of these online services.

Instead, online privacy law should take inspiration from a perhaps surprising quarter: product-safety law. A web site that directs users' personal information in ways they don't expect is a defectively designed product, and many concepts from products liability law could …

Warranties And Disclaimers In The Electronic Age, Robert A. Hillman, Ibrahim Barakat

Cornell Law Faculty Publications

This paper reports on software-licensor express warranty and disclaimer practices on the Internet. Our data show that virtually all of the websites and End User License Agreements (EULAs) we sampled include express warranties on the website and disclaimers of the warranties in the EULAs that may erase all or much of the quality protection. Next, the paper reviews the reasons why consumers generally do not read their e-standard forms despite the prevalence of disclaimers and other adverse terms. We then argue that e-commerce exacerbates the problem of warranties and disclaimers and that lawmakers should address this issue. We contend that …

Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.

The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same …

Statins And Adverse Cardiovascular Events In Moderate-Risk Females: A Statistical And Legal Analysis With Implications For Fda Preemption Claims, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This article presents: (1) meta-analyses of studies of cardioprotection of women and men by statins, including Lipitor (atorvastatin), and (2) a legal analysis of advertising promoting Lipitor as preventing heart attacks. The meta-analyses of primary prevention clinical trials show statistically significant benefits for men but not for women, and a statistically significant difference between men and women. The analyses do not support (1) statin use to reduce heart attacks in women based on extrapolation from men, or (2) approving or advertising statins as reducing heart attacks without qualification in a population that includes many women. The legal analysis raises the …

Online Boilerplate: Would Mandatory Website Disclosure Of E-Standard Terms Backfire?, Robert A. Hillman

Cornell Law Faculty Publications

No abstract provided.

A Fictional Tale Of Unintended Consequences: A Response To Professor Wertheimer, Aaron Twerski, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Preferences For Processes: The Process/Product Distinction And The Regulation Of Consumer Choice, Douglas A. Kysar

Cornell Law Faculty Publications

This Article examines a conceptual distinction between product-related information (such as whether a consumer good threatens to harm its user) and process-related information (such as whether a good’s production harmed workers, animals, or the environment) that has appeared in various guises within international trade law; domestic environmental, health, and safety regulation; and constitutional commercial speech jurisprudence. This process/product distinction tends to dismiss information concerning processes as unworthy of attention from consumers or regulators, at least so long as the processes at issue do not manifest themselves in the physical or compositional characteristics of resulting end products. Proponents have offered the …

Consumer Expectations' Last Hope: A Response To Professor Kysar, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

The authors agree with Professor Kysar that the current version of the consumer expectations test for design defectiveness is an amorphous, unprincipled misreading of section 402A of the Restatement (Second) of Torts. And they agree that most courts apply risk-utility balancing in determining design defectiveness. But they disagree with Kysar's proposal to supplement risk-utility balancing with a reinvigorated consumer expectations test based on expert testimony regarding what consumers actually expect in the way of design safety. Judicial reliance on such testimony would be susceptible to result-oriented manipulation by litigants, would not guide manufacturers in making sensible design choices, would pressure …

The Expectations Of Consumers, Douglas A. Kysar

Cornell Law Faculty Publications

In the few years following promulgation of the Restatement (Third) of Torts: Products Liability, several courts have reaffirmed their allegiance to the consumer expectations test for product design defect liability, while rejecting the Restatement's contrary recommendation to adopt a design defect test that focuses primarily on technical features regarding the risk and utility of alternative product designs. In this Article, Professor Kysar reviews the post-Third Restatement decisions, identifying within them a common failure to articulate a coherent, independent doctrinal role for the consumer expectations test, despite the courts' clearly expressed desire to do so. In Kysar's view, courts adhering to …

Ethics Of Enterprise Liability In Product Design And Marketing Litigation, James A. Henderson Jr.

Cornell Law Faculty Publications

American courts talk as though they are imposing strict enterprise liability on product manufacturers, but in truth they do so only with respect to manufacturing defects. In product design and marketing litigation, manufacturers' liability is based on fault. The reason why strict liability is inappropriate for the generic product hazards associated with design and marketing is that, in sharp contrast to manufacturing defects, the conditions necessary for insurance to function are not satisfied. Users and consumers control generic product risks to a sufficiently great extent that any insurance scheme based on strict enterprise liability would be destroyed by combinations of …

Standard-Form Contracting In The Electronic Age, Robert A. Hillman, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

The development of the Internet as a medium for consumer transactions creates a new question for contract law. In this Article, Professors Robert Hillman and Jeffrey Rachlinski address whether the risks imposed on consumers by Internet boilerplate requires a new lens through which courts should view these types of contracts. Their analysis of boilerplate in paper and Internet contracts examines the social, cognitive, and rational factors that affect consumers' comprehension of boilerplate and compares business strategies in presenting it. The authors conclude that the influence of these factors in Internet transactions is similar to that in proper transactions. Although the …

Drug Designs Are Different, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Product-Related Risk And Cognitive Biases: The Shortcomings Of Enterprise Liability, James A. Henderson Jr., Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Products liability law has witnessed a long debate over whether manufacturers should be held strictly liable for the injuries that products cause. Recently, some have argued that psychological research on human judgment supports adopting a regime of strict enterprise liability for injuries caused by product design. These new proponents of enterprise liability argue that the current system, in which manufacturer liability for product design turns on the manufacturer's negligence, allows manufacturers to induce consumers into undertaking inefficiently dangerous levels or types of consumption. In this paper we argue that the new proponents of enterprise liability have: (1) not provided any …

State Attorney General Actions, The Tobacco Litigation, And The Doctrine Of Parens Patriae, Richard P. Ieyoub, Theodore Eisenberg

Cornell Law Faculty Publications

On November 23, 1998, a master settlement agreement settled the lawsuits of forty-six states against the tobacco industry. The settlement brings about historic public health initiatives, such as the end to outdoor advertising, the ban on using cartoon characters in advertisements, and the creation of public education trusts. It also provides that the settling tobacco manufacturers will pay over $200 billion over the next twenty-five years. Some of the legal theories upon which states relied have implications beyond the tobacco litigation. Of particular importance is the application of the theory of parens patriae in the tobacco litigation. That theory may …

Intuition And Technology In Product Design Litigation: An Essay On Proximate Causation, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

The Products Liability Restatement In The Courts: An Initial Assessment, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Product Design Liability In Orgeon And The New Restatement, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

What Europe, Japan, And Other Countries Can Learn From The New American Restatement Of Products Liability, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Achieving Consensus On Defective Product Design, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

The Politics Of The Products Liability Restatement, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

A Discussion And A Defense Of The Restatement (Third) Of Torts: Products Liability, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Arriving At Reasonable Alternative Design: The Reporters' Travelogue, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

Substantial commentary and controversy have been generated by the requirement in the new Restatement (Third) of Torts: Products Liability that plaintiffs in most (but not all) cases involving claims of defective product design show that a reasonable alternative design was available and that failure to adopt the alternative rendered the defendant's design not reasonably safe. Henderson and Twerski explain the origins of that requirement and show that it is not only the majority position but also comports with widely shared views regarding the proper objectives of our liability system. Although consumer expectations cannot serve as a workable, stand-alone test for …

Prescription Drug Design Liability Under The Proposed Restatement (Third) Of Torts: A Reporter's Perspective, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.