Consumer Protection Law Commons^™

Privacy's Law Of Design, Ari Ezra Waldman

Articles & Chapters

Privacy by design is about making privacy part of the conception and development of new data collection tools. But how should we interpret “privacy by design” as a legal mandate? As it transitions from an academic buzzword into binding law, privacy by design will, for the first time, impose real responsibilities on real people to do specific things at specific times. And yet, there remains significant disagreement about what privacy by design actually means in practice: we have yet to define its who, what, when, why, and how. Different approaches to privacy by design have tried to answer those questions …

Commodifying Consumer Data In The Era Of The Internet Of Things, Stacy-Ann Elvy

Articles & Chapters

Internet of Things (“IOT”) products generate a wealth of data about consumers that was never before widely and easily accessible to companies. Examples include biometric and health-related data, such as fingerprint patterns, heart rates and calories burned. This Article explores the connection between the types of data generated by the IOT and the financial frameworks of Article 9 of the Uniform Commercial Code and the Bankruptcy Code. It critiques these regimes, which enable the commodification of consumer data, as well as laws aimed at protecting consumer data, such as the Bankruptcy Abuse Prevention and Consumer Protection Act, various state biometric …

Hybrid Transactions And The Internet Of Things: Goods, Services, Or Software?, Stacy-Ann Elvy

Articles & Chapters

The Internet of Things (IOT) has been described by the American Bar Association as "one of the fastest emerging," potentially most "transformative and disruptive technological developments" in recent years. Thesecurity risks posed by the IOT are immense and Article 2 of the UCC should play a central role in determinations regarding liability for vulnerable IOT products. However, the lack of explicit clarity in the UCC on how to evaluate Article 2's applicability to hybrid transactions that involve the provision of goods, services, and software has led to conflicting case law on this issue, which contradicts the UCC's stated goals of …

Paying For Privacy And The Personal Data Economy, Stacy-Ann Elvy

Articles & Chapters

Growing demands for privacy and increases in the quantity and variety of consumer data have engendered various business offerings to allow companies, and in some instances consumers, to capitalize on these developments. One such example is the emerging “personal data economy” (PDE) in which companies, such as Datacoup, purchase data directly from individuals. At the opposite end of the spectrum, the “pay-for-privacy” (PFP) model requires consumers to pay an additional fee to prevent their data from being collected and mined for advertising purposes. This Article conducts a simultaneous in-depth exploration of the impact of burgeoning PDE and PFP models. It …

Contracting In The Age Of The Internet Of Things: Article 2 Of The Ucc And Beyond, Stacy-Ann Elvy

Articles & Chapters

This Article analyzes the global phenomenon of the Internet of Things (“IOT”) and its potential impact on consumer contracts for the sale of goods. Recent examples of IOT products include Amazon’s Dash Replenishment Service, which allows household devices to automatically reorder goods. By 2025, the IOT is estimated to have an economic impact of as much as $11.1 trillion. To date, there are approximately fifteen billion interconnected devices, and by 2020, there will be fifty billion such devices worldwide. IOT devices will revolutionize the way that consumers shop for consumable supplies and other goods. Consumers will no longer need to …

Capitalism And Risk: Concepts, Consequences, And Ideologies, Edward A. Purcell

Articles & Chapters

Politically charged claims about both "capitalism" and "risk" became increasingly insistent in the late twentieth century. The end of the post-World War II boom in the 1970s and the subsequent breakup of the Soviet Union inspired fervent new commitments to capitalist ideas and institutions. At the same time structural changes in the American economy and expanded industrial development across the globe generated sharpening anxieties about the risks that those changes entailed. One result was an outpouring of roseate claims about capitalism and its ability to control those risks, including the use of new techniques of "risk management" to tame financial …

Tort Reform: Blocking The Courthouse Door And Denying Access To Justice, Joanne Doroshow

Articles & Chapters

No abstract provided.

Energy Derivatives: Which Country (U.S. Or U.K.) Provides The Best Customer Asset Protections To An Energy Trading Firm If Its Brokerage Firm/Counterparty Files For Bankruptcy, Ronald H. Filler

Articles & Chapters

No abstract provided.

Bitcoin Financial Regulation: Securities, Derivatives, Prediction Markets, And Gambling, Jerry Brito, Houman B. Shadab, Andrea Castillo

Articles & Chapters

The next major wave of Bitcoin regulation will likely be aimed at financial instruments, including securities and derivatives, as well as prediction markets and even gambling. While there are many easily regulated intermediaries when it comes to traditional securities and derivatives, emerging bitcoin denominated instruments rely much less on traditional intermediaries such as banks and securities exchanges. Additionally, the block chain technology that Bitcoin introduced for the first time makes completely decentralized markets and exchanges possible, thus eliminating the need for intermediaries in complex financial transactions. In this Article we survey the type of financial instruments and transactions that will …

Performance-Sensitive Debt: From Asset-Based Loans To Startup Financing, Houman B. Shadab

Articles & Chapters

This Article develops a unique theory of performance-sensitive debt and argues that certain revenue-stage startups may be missing out on an important source of capital from asset-based loans. Debt contracts are performance sensitive to the extent any of the borrower’s obligations adjust in response to the performance of the borrower. The three main types of performance sensitivity I identify are (1) a loan’s interest rate adjusting based on the performance of the borrower; (2) the amount of available credit adjusting based on the value of collateral; and (3) renegotiation following breach of a loan covenant. Conceptualizing performance sensitivity as a …

Revolution Imagined: Cause Advocacy, Consumer Rights, And The Evolving Role Of Ngos In Thailand, Frank W. Munger

Articles & Chapters

This article describes the founding and evolution of a “Thai-style” NGO dedicated to consumer protection. Through a description of the NGO and the career of its founder, the article brings to light features of the evolution of NGO based advocacy in Thailand from the student uprising in 1973 to the present. The legacy of the 1973 October Generation of activists continues to influence development of NGOs but new emphasis on rights has emerged since the era of constitutional reform in the 1990s. Many NGOs now make use of litigation to attempt to achieve social change, but litigation, like other long-standing …

Credit Risk Transfer Governance: The Good, The Bad, And The Savvy, Houman B. Shadab

Articles & Chapters

Goldman Sachs and American International Group on the eve of the 2008 financial crisis were bound together through a web of credit risk transfer (CRT) contracts in the form of credit default swaps (CDSs) and synthetic collateralized debt obligations (CDOs). Synthetic CDOs enabled certain hedge funds to profit from the ultimate bursting of the housing bubble due to the funds’ savvy in understanding CRT better than their counterparties. This Article constructs a novel theory of CRT that extends the insights of creditor governance theory to CRT transactions. By doing so, this Article establishes a framework for good CRT governance. CRT …

Racism, Capitalism, And Predatory Lending: How The U.S. Government's Failure To Regulate The Disproportionate Negative Effects Of Payday Lending In Black Communities Violates The International Convention On The Elimination Of All Forms Of Racial Discrimination, Paulina Davis

Articles & Chapters

No abstract provided.

Ask The Professor: “Omg! What Did Mf Global Do?, Ronald Filler

Articles & Chapters

This paper, written one week after MF Global, a large futures brokerage firm filed for bankruptcy, analyzes the bankruptcy, its impact on futures customers and the shortfall in customer funds that occurred on October 31, 2011. Subsequent to MF Global's bankruptcy, several customer protection rules were amended by the U.S. Commodity Futures Trading Commission and the National Futures Association.

Counterparty Regulation And Its Limits: The Evolution Of The Credit Default Swaps Market, Houman B. Shadab

Articles & Chapters

Over-the-counter (OTC) derivatives are widely regarded as “unregulated” financial instruments. While it is true that OTC derivatives are subject to relatively minimal federal regulation, OTC derivatives are in fact subject to a robust form of control and governance in the form of counterparty regulation. Counterparty regulation arises when two or more parties are continually exposed to counterparty credit risk for the duration of a long-term contract, and it consists of specific governance mechanisms such as the daily adjustment of collateral and the netting out of redundant trades. Counterparty regulation governs derivatives transactions but not securities transactions.

This essay reviews recent …

Ask The Professor: Who Has, Or Who Should Have, Jurisdiction Over Cds Clearing?, Ronald Filler

Articles & Chapters

No abstract provided.

Talking The Talk, Or Walking The Walk? Outcome-Based Regulation Of Transnational Investment, Jerry Ellig, Houman B. Shadab

Articles & Chapters

Today, individual U.S. retail investors have virtually limitless opportunities to invest their money, with a notable exception: they cannot directly invest in securities of foreign issuers and still be protected under U.S. law. This missing opportunity deprives U.S. investors of the ability to fully diversify their investments and also imposes undue costs and risks upon investors seeking to invest directly overseas. This Article shows that a Securities and Exchange Commission ("SEC") policy of "mutual recognition" of foreign regulatory regimes that achieve investor protection outcomes comparable to those of the SEC would solve this problem. A foreign issuer or other entity …

Foreword, Corporate Governance Five Years After Sarbanes-Oxley: Is There Real Change, Faith Stevelman

Articles & Chapters

No abstract provided.

Innovation And Corporate Governance: The Impact Of Sarbanes-Oxley, Houman B. Shadab

Articles & Chapters

No abstract provided.

Begged, Borrowed Or Stolen: Whose Art Is It, Anyway - An Alternative Solution Of Fine Art Licensing, Judith Bresler

Articles & Chapters

Part II

Bombing Markets, Subverting The Rule Of Law: Enron, Financial Fraud, And September 11, 2001, Faith Stevelman

Articles & Chapters

No abstract provided.

Arbitration Of Truth-In-Lending-Act Claims, Marshall E. Tracht

Articles & Chapters

In recent years, it has become increasingly common for lenders to include arbitration clauses in their consumer financing agreements. While federal law strongly supports the enforceability of arbitration provisions, there are a number of grounds on which their enforceability can be, and has been, challenged.

This article summarizes the state of the law on a number of major issues which have arisen in the attempt to use arbitration clauses in consumer financing agreements, focusing on Truth-in-Lending Act claims, including an analysis of the Supreme Court's recent decision in Green Tree Financial Corp. v. Randolph.

Shedding Some Light On Lending: The Effect Of Expanded Disclosure Laws On Home Mortgage Marketing, Lending And Discrimination In The New York Metropolitan Area, Richard D. Marsico

Articles & Chapters

No abstract provided.

New Video Technologies In The United States: Regulatory And Intellectual Property Considerations, Michael Botein

Articles & Chapters

No abstract provided.

Contractual Disclaimer And Limitation Of Liability Under The Law Of New York, James Brook

Articles & Chapters

No abstract provided.

New Communications Technologies: The Emerging Antitrust Agenda, Michael Botein

Articles & Chapters

No abstract provided.

Jurisdictional And Antitrust Considerations In The Regulation Of The New Communications Technologies, Michael Botein

Articles & Chapters

No abstract provided.

Consumer Sensitivity To Interest Rates: An Empirical Study Of New-Car Buyers And Auto Loans, James J. White, Frank W. Munger

Articles & Chapters

No abstract provided.