Law Commons^™

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

Jeffrey J. Rachlinski

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 …

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

Jeffrey J. Rachlinski

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 …

Acciones Colectivas Vs Cláusula De Arbitraje, Jorge E. De Hoyos Walther

Jorge E De Hoyos Walther

Análisis de la resolución de la Suprema Corte de Justicia que permite la procedencia una accione colectiva, aun cuando las partes se hayan sometido al arbitraje.

The Unexamined Life In The Era Of Big Data: Toward A Udaap For Data, Sean Brian

Sean Brian

No abstract provided.

Class Actions Suits Vs. Arbitration Clause (Mexico), Jorge E. De Hoyos Walther

Jorge E De Hoyos Walther

On September 24, 2014, the Mexican Supreme Court (SCJN) issued a landmark decision in the world of arbitration and class action suits. In summary, SCJN upheld that it is possible to file a class action suit, even though an arbitration clause is included in the agreement that governs the business relationship

Trademark Law And Status Signaling: Tattoos For The Privileged, Jeffrey L. Harrison

Jeffrey L Harrison

The motivations for buying a good or service are highly complex. At the most basic level, people buy goods because of what the goods do or because of the aesthetic elements they embody. More technically, buyers derive utility from the "functional" quality of these goods. Another motivation relates to what the goods "say" about the buyer. Here, the good is a signaling device. Signaling is not new, of course, and can indicate anything from social class to political leanings. This Essay addresses the issue of whether it should be public policy to subsidize this type of person-to-person status signaling. This …

Antitrust Merger Efficiencies In The Shadow Of The Law, D. Daniel Sokol, James A. Fishkin

D. Daniel Sokol

This Essay provides an overview of U.S. antitrust merger practice in addressing efficiencies both in terms of actual practice before the agencies and in scholarly work as a response to Jamie Henikoff Moffitt's Vanderbilt Law Review article Merging in the Shadow of the Law: The Case for Consistent Judicial Efficiency Analysis. Moffitt’s analysis could have benefited from a more thorough discussion of the Department of Justice and Federal Trade Commission’s (collectively, the “agencies”) analysis of efficiencies during investigations and the broader process of negotiations involving mergers. For instance, the article does not discuss the empirical work addressing when the agencies …

Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Christine A. Klein, Sandra B. Zellmer

Christine A. Klein

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a "manmade" disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This Article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …

The Telephone Consumer Protection Act Of 1991: Adapting Consumer Protection To Changing Technology, Spencer Weber Waller

Spencer Weber Waller

No abstract provided.

Stored Value Cards And The Consumer: The Need For Regulation , Mark E. Budnitz

Mark E. Budnitz

No abstract provided.

Target, Negligence, Chips, And Chickens, Jesse D. Gossett

Jesse D Gossett

SHOPPING ON BLACK FRIDAY. It’s almost as American as baseball and apple pie. But during the 2013 holiday season, over forty million U.S. citizens experienced what is increasingly becoming a uniquely American problem: face-to-face (“FTF”) credit card fraud. This online article briefly explores the problems of data hacking and credit card fraud. It then looks at how European countries have largely avoided the problem and what American consumers can do to minimize the problem here.

The Troubled State Of America's Nursing Homes, Albert Moran

Albert Moran

Even the most cursory search of news coverage involving nursing homes reveals that horror stories are not difficult to come by. Although the grisly details of each individual horror story vary, most of them share the same general story line—through some combination of gross negligence and profound systemic failure, elderly citizens can experience disturbing conditions in nursing homes that result in suffering and sometimes death. While egregious stories make local news headlines every so often and prompt a brief firestorm of public criticism, the everyday reality of nursing homes is much less sensationalized, and arguably even more sobering. Statistics indicate …

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

Daños Punitivos En Mexico. Renacimiento De La Responsabilidad Civil, Jorge E. De Hoyos Walther

Jorge E De Hoyos Walther

La Suprema Corte de Justicia reconoce la existencia de los daños punitivos en México. Esta resolución tendrá un impacto importante en las demandas por responsabilidad civil y en los litigios transfronterizos.

The Future Of The Private Label Securities Market, David J. Reiss

David J Reiss

The PLS market, like all markets, cycles from greed to fear, from boom to bust. The mortgage market is still in the fear part of the cycle and recent government interventions in it have, undoubtedly, added to that fear. In recent days, there has been a lot of industry pushback against the government’s approach, including threats to pull out of various sectors. But the government should not chart its course based on today’s news reports. Rather, it should identify fundamentals and stick to them. In particular, its regulatory approach should reflect an attempt to align incentives of market actors with …

O Dano Psíquico Nas Relações Civis E De Consumo, Lucas Abreu Barroso, Eini Rovena Dias

Lucas Abreu Barroso

Socio-economic practices and hyper-consumption stimulate the creation of new types of damage. The demand for full protection of the human person increases proportionally in civil and consumer relationships. But the role that falls to tort law does not find - in the legal dogmatics - adequate tools to face such a challenge. The scenario is even worse with respect to non-material damages. With their identification as moral damages, the recognition of other categories of damages in Brazilian law such as psychic damages, based on the protection of psychophysical integrity of the victim, is prevented.

Comentarios Al Proyecto Sobre Justicia En Las Relaciones De Consumo, Gabriel Martinez Medrano

Gabriel Martinez Medrano

Comentario al Proyecto del P.E. Argentino sobre Justicia para las relaciones de Consumo (menor cuantía). Visión positiva del proyecto con algunas indicaciones prácticas.

The Price Of Crisis: Eminent Domain, Local Governments, And The Value Of Underwater Mortgages, Raymond H. Brescia, Nicholas Martin

Raymond H Brescia

In response to the lingering fallout from the Financial Crisis of 2008, local governments have begun to explore whether it is wise and legal to use the power of eminent domain to seize distressed home mortgages. This Article attempts to situate this approach to such mortgages within the larger economic, legal and policy context and asks three key questions. First, are local governments appropriate actors to address the lingering problem of underwater mortgages? Second, assuming they are appropriate actors to address this problem, how should localities and, if necessary, courts, value underwater mortgages in the context of condemnation proceedings: i.e., …

Armed, Unarmed Or Harmed By Knowledge? A Comment On The Fha's Housing Counseling Pilot Program, David J. Reiss

David J Reiss

The FHA has requested input on its Homeowners Armed with Knowledge (HAWK) for New Homebuyers pilot program. This comment letter argues that housing counseling is not a proven solution to the problem it is meant to solve, excessive defaults by FHA borrowers. HAWK is a traditional housing counseling program but the scholarly literature casts into doubt the efficacy of such programs. It would be better to take time to research which counseling strategies, if any, are proven to be effective. This is true for the FHA but also for other government agencies, such as the Consumer Financial Protection Bureau, that …

Seeking Solutions To Financial History Discrimination, Lea Krivinskas Shepard

Lea Krivinskas Shepard

Employers’ use of credit reports to evaluate prospective job applicants has generated considerable scrutiny in the popular press and academic literature, but few proposals for reform. This Article explores three possible ways of reducing the risk of financial history discrimination in the employment setting.

First, imposing inquiry limits on employers’ use of credit reports, a policy recently adopted or under consideration in the majority of states, is unlikely to be effective, since states’ inquiry limits are currently narrowly drafted and therefore advance few anti-discriminatory objectives. In addition, inquiry limits cannot prevent self-interested individuals from voluntarily revealing their credit histories and …

Intermediaries Revisited: Is Efficient Certification Consistent With Profit Maximization?, Jonathan M. Barnett

Jonathan M Barnett

Private certification mechanisms are a key component of the regulatory infrastructure in the financial sector and other commercial settings. It is generally assumed that certification intermediaries have profit-based incentives to deliver accurate information to the certified market. But this view does not account for repeated failures in certification markets. Those failures can be explained by an inherent defect in the incentive structure of certification intermediaries: entry barriers both support and undermine the consistent supply of accurate information to the certified market. Certification markets tend to converge on a handful of providers protected by switching costs, product opacity and reputational noise. …

Questioni Giuridiche Connesse All'emissione E All'uso Delle Carte Di Credito Revolving, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Cracking The Cable Conundrum: Government Regulation Of A La Carte Models In The Cable Industry, Jade Brewster

Jade Brewster

This Article examines the practice of cable bundling, a term describing how cable providers offer channels in “packages” of channels rather than allowing consumers to buy channels individually. These cable bundles have been criticized by politicians, academics, and the public alike, many of whom believe cable bundling simultaneously increases the price of cable and forces consumers to pay for programming they neither want nor use. Politicians have responded to these criticisms by advocating for legislation requiring cable companies to offer a la carte pricing options, in which customers can pick and choose individual channels. But evidence that an a la …

The Use Of Tenant Screening Reports And Tenant Blacklisting—2014, Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.

Peering Into The Comcast-Netflix Deal, Daniel A. Lyons

Daniel Lyons

No abstract provided.

Testimony To The Committee On Financial Institutions, Kansas House Of Representatives March 13, 2014, Brian M. Mccall

Brian M McCall

This document contains the text of testimony given before the Committee on Financial Institutions, Kansas House of Representatives March 13, 2014, in a hearing to address potential changes to the regulation of payday lending in Kansas.

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Peter A. Holland

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Junk Justice: A Statistical Analysis Of 4,400 Lawsuits Filed By Debt Buyers, Peter A. Holland

Peter A. Holland

Debt buyers have flooded courts nationwide with collection lawsuits against consumers. This article reports the findings from the broadest in-depth study of debt buyer litigation outcomes yet undertaken. The study demonstrates that in debt buyer cases, (1) the vast majority of consumers lose the vast majority of cases by default the vast majority of the time; (2) consumers had no lawyer in ninety-eight percent of the cases; and (3) those who filed a notice that they intended to defend themselves without an attorney fared poorly, both in court and in out of court settlements. This study challenges the notion that …

Contrastanti Orientamenti Nel Difficile Accertamento Della Natura Di Operatore Qualificato Nelle Operazioni Di Swap, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

An Impossible Reconciliation? Understanding Class-Action Waivers And Arbitration After American Express V. Italian Colors, Kristine A. Bergman

Kristine A Bergman

No abstract provided.