Law Commons^™

Book Review: Grease Or Grit?, Rebecca H. Allensworth

Vanderbilt Law School Faculty Publications

Grease or Grit? International Case Studies of Occupational Licensing and Its Effects on Efficiency and Quality. Edited by Morris M. Kleiner and Maria Koumenta. Kalamazoo, MI: W.E. Upjohn Institute for Employment Research, 2022. 174 pp. ISBN 9780880996860, $20 (paperback); ISBN 9780880996877, $9.99 (e-book).

Occupational licensing remains poorly understood. This is true even after decades of illuminating empirical work by Morris Kleiner, one of the authors of Grease or Grit? International Case Studies of Occupational Licensing and Its Effects on Efficiency and Quality, showing that licensing—a government-granted right to perform a particular service—raises prices to consumers, restricts entry into an occupation, …

Closing The Cracks And The Courts: A Comparative Analysis Of Debt Collection Regulation In The United Kingdom And The United States, Tasia S. Harris, Candidate For Doctor Of Jurisprudence

Vanderbilt Journal of Transnational Law

Consumers who borrow from a lender today cannot count on dealing with that same lender later if they default on their debt. In today's world of debt collection, the lender will outsource collection to a thirdparty debt collector, or those consumers' defaulted debt will be bought and sold numerous times for pennies on the dollar until eventually a debt buyer decides to pursue payment. Either way, under the current US debt collection laws and regulations, both third-party debt collectors and debt buyers can act outside the scope of debt collection regulation in the United States, and many will take that …

Racial Capitalism In The Civil Courts, Lauren Sudeall, Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg

Vanderbilt Law School Faculty Publications

This Essay explores how civil courts function as sites of racial capitalism. The racial capitalism conceptual framework posits that capitalism requires racial inequality and relies on racialized systems of expropriation to produce capital. While often associated with traditional economic systems, racial capitalism applies equally to nonmarket settings, including civil courts.

The lens of racial capitalism enriches access to justice scholarship by explaining how and why state civil courts subordinate racialized groups and individuals. Civil cases are often framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants enter the civil legal system involuntarily, and the state …

Regulating Data Breaches: A Data Superfund Statute, Kyle Mckibbin

Vanderbilt Journal of Entertainment & Technology Law

Collecting and processing large amounts of personal data has become a fundamental feature of the modern economy. Personal data, combined with good data analytics, are valuable to businesses as they can provide highly detailed information about individual preferences and behaviors. This data collection can also be valuable to the consumer as it generates innovative products and digital platforms. The era of big data promises great rewards, but it is not without its costs. Data breaches, or the release of personal data into unwanted hands, are pervasive and increasingly massive in scale. Despite the personal privacy harm caused by data breaches, …

Current Regulatory Challenges In Consumer Credit Scoring Using Alternative Data-Driven Methodologies, Sahiba Chopra

Vanderbilt Journal of Entertainment & Technology Law

Credit is a crucial determinant of financial success for most US consumers, but not all consumers can access it. This financial exclusion is partially due to traditional credit-risk scoring and approval processes that cannot assess the creditworthiness of “credit invisible” or “thin file” consumers––that is, consumers who do not have enough traditional data depicting their financial payment history. Consequently, some consumer-reporting agencies and lenders turn to alternative data credit-scoring systems as a way to increase financial inclusion. The enormous complexity of these alternative consumer credit-scoring systems, however, raises significant accuracy and transparency issues—most of which stem from their secret, legally …

Regulating Social Media In The Global South, Zahra Takhshid

Vanderbilt Journal of Entertainment & Technology Law

In recent years, the disinformation crisis has made regulating social media platforms a necessity. The consequences of disinformation campaigns are not only limited to election interferences or political debates, but have also included fatal consequences. In response, scholars have generally focused on regulating social media companies in the United States without paying much attention to these companies’ global impact, particularly in the Global South. Lost in the quest to fight disinformation is addressing the social media companies’ neglect of consumer rights in the Global South.

Countries in the Global North, such as the United States, have the power to regulate …

Classaction.Gov, Amanda M. Rose

Vanderbilt Law School Faculty Publications

This Essay proposes the creation of a federally run class action website and supporting administration (collectively, Classaction.gov) that would both operate a comprehensive research database on class actions and assume many of the notice and claims-processing functions performed by class action claims administrators today. Classaction.gov would bring long-demanded transparency to class actions and, through forces of legitimization and coordination, would substantially increase the rate of consumer participation in class action settlements. It also holds the key to mitigating other problems in class action practice, such as the inefficiencies and potential abuses associated with multiforum litigation, the limited success of the …

What Seila Law Says About Chief Justice Roberts' View Of The Administrative State, Lisa Bressman

Vanderbilt Law School Faculty Publications

In "Seila Law LLC v. Consumer Financial Protection Board", the Supreme Court invalidated a statutory provision that protected the director of the Consumer Finance Protection Board (CFPB) from removal by the president except for "inefficiency, neglect of duty, or malfeasance in office." Writing for the Court, Chief Justice John Roberts announced a new test for evaluating the constitutionality of "for cause" restrictions on presidential removal of high-level agency officials. Under this test, the Court asks whether the removal restriction applies to an official who is the head of a "single-head agency" or to the officials who collectively lead a "multimember …

Where's The Consumer Harm? The Bots Act: A Fruitless Boogeyman Hunt, Zachary Sturman

Vanderbilt Journal of Entertainment & Technology Law

Historically, the secondary-ticket market for sporting events, concerts, and the like entailed hollering scalpers perched outside of venues. Though this practice has not been entirely extinguished, the internet has largely moved the secondary-ticket market online to websites like StubHub, the largest player in this arena. Instead of yelling loudest or finding the best real estate outside a stadium from which to perch, the modern ticket scalper competes most effectively in the secondary-ticket market by finding ways to access primary tickets online. By using ticket "bots," programs designed to autofill customer information and solve CAPTCHA prompts, modern scalpers can quickly purchase …

Adminization: Gatekeeping Consumer Contracts, Yonathan A. Arbel

Vanderbilt Law Review

Large companies and debt collectors frequently file unmeritorious claims against consumers. Recent high-profile actions brought by the Consumer Financial Protection Bureau against J.P. Morgan, Citibank, and other large debt collectors illustrate the breadth and importance of this phenomenon. Due to the limited financial power of individuals, consumers often do not defend against such baseless claims, which results in the entry of millions of default judgments every year. To combat this problem, policymakers and scholars have explored a variety of court-based solutions that would make it easier for consumers to defend in court, but these prove ineffectual. To solve the problem …

The Fatal Failure Of The Regulatory State, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The impact of government policies depends on their design, implementation, and enforcement.! The administrative law literature focuses primarily on matters of regulatory structure.2 Government agencies entrusted with protection of the environment and promotion of health and safety foster these objectives by designing and promulgating regulations that are sometimes quite stringent.' Whether these regulations will in fact generate their intended effects depends on whether they create sufficient economic incentives to discourage risky behavior...

The Article begins by documenting the low values currently placed on life in regulatory enforcement efforts. Part I presents examples involving job safety, food safety, motor-vehicle safety, and …

Consumer Litigation Funding: Just Another Form Of Payday Lending?, Paige Marta Skiba, Jean Xiao

Vanderbilt Law School Faculty Publications

This article provides a side-by-side comparison of payday lending and consumer litigation funding in order to aid policymakers. Funding has similarities with payday lending because they are both alternative financial services, involve high interest rates, and cater to customers who need money for living expenses. However, they differ in ways that regulators should recognize. Many justify bans on payday lending by pointing to the fact that millions of borrowers every year are getting stuck in an inescapable cycle of interest payments. While legal finance has real costs, funding’s nonrecourse nature prevents consumers from getting stuck in a cyclical repayment of …

Heuristics, Biases, And Consumer Litigation Funding At The Bargaining Table, Jean Xiao

Vanderbilt Law Review

Imagine three plaintiffs. The first incurred serious back injuries as a passenger in an automobile collision.' The second suffered permanent head injuries as a day laborer in a construction accident. The third experienced a debilitating asthma attack, caused by exposure to floor-cleaning chemicals at her workplace. You now have the chance to advance money to the plaintiff that you believe has the lawsuit with the highest expected value. If the selected plaintiff settles or wins at trial, then you receive the money you gave the plaintiff plus interest that approaches 200% a year. Here is the catch: if the plaintiff …

A Fresh Look At State Asset Protection Trust Statutes, Ronald J. Mann

Vanderbilt Law Review

This Article examines the rise of state asset protection trust ('APT) statutes. It juxtaposes two apparently contrary trends: an increase in formal legal responses suggesting that the trusts created under these statutes are likely to have at best limited enforceability and an increase in the adoption and use of these statutes. After summarizing the legal background out of which these two trends arise, I analyze the characteristics of the states that have chosen to adopt them to date and conclude that the size of a state is less predictive of adoption than broader social and economic characteristics of the populace. …

Products Liability And Economic Activity: An Empirical Analysis Of Tort Reform's Impact On Businesses, Employment, And Production, Joanna M. Shepherd

Vanderbilt Law Review

For decades, advocates of tort reform have argued that expansive products liability stifles economic activity by imposing excessive and unpredictable liability costs on businesses. Although politicians aspiring to create jobs, attract businesses, and improve the economy have relied on this argument to enact hundreds of reforms, it has largely gone empirically untested. No longer. Using the most comprehensive dataset to date on products liability reforms and economic activity, I find that many reforms that restrict the scope of products liability improve economic conditions. Specifically, these reforms increase the number of businesses, employment, and production in the industries that face most …

Regulation Of Payday Loans: Misguided?, Paige Marta Skiba

Vanderbilt Law School Faculty Publications

Since payday lenders came on the scene in 1990s, regulation of their "predatory" practices has been swift and often severe. Fourteen states now ban payday loans outright. From an economist's perspective, high-interest, short-term, small loans need not be a bad thing. Payday credit can help borrowers "smooth" consumption, unequivocally improving welfare as consumers borrow from future good times to help cover current shortfalls. These benefits of credit can accrue even at typical payday loan interest rates of 300%-600% APR. The question of whether payday credit actually assists borrowers in this way is an empirical one. In this Article, I review …

An Investigation Of The Rationality Of Consumer Valuations Of Multiple Health Risks, W. Kip Viscusi, Wesley A. Magat, Joel Huber

Vanderbilt Law School Faculty Publications

After developing a conceptual analysis of consumer valuation of multiple risks, we explore both economic and cognitive hypotheses regarding individual risk-taking. Using a sample of over 1,500 consumers, our study ascertains risk-dollar tradeoffs for the risks associated with using an insecticide and a toilet bowl cleaner. We observe the expected positive valuation of risk reductions andfind empirical supportfor a diminishing in the valuation of risk reduction as the extent of the risk reduction increases. We also find evidence of certainty premiums for the total elimination of one risk, but no strong evidence of additional certainty premiums for the elimination of …

Does Product Liability Make Us Safer?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Product liability law is intended to create an environment that fosters safer products. However, this law often has adverse consequences. Some of the problems stem from the inherent nature of product risk decisions and the function of tort liability, while others may derive from individuals’ cognitive limitations and inability to think properly about balancing risk and cost. This paper examines both types of problems and summarizes relevant academic literature.

If The "Shoe" Fits: Reconciling The "International Shoe" Minimum Contacts Test With The Anticybersquatting Consumer Protection Act, John A. Greer

Vanderbilt Law Review

The desire to assume a false identity is one that transcends cultures and time periods. Even the most socially confident and successful person has, at some point, contemplated the possibility of changing or masking his or her identity-if only temporarily-with the hope of gaining some sort of competitive advantage. History and popular culture are replete with instances of such conduct, with varying degrees of success. One of the most famous historical examples, originating in Greek mythology, is the legend of the Trojan horse: the Greeks' surprise invasion of Troy using a hollow, wooden horse.

This same desire to gain a …

Automobile Seatbelt Usage And The Value Of Statistical Life, W. Kip Viscusi, Jahn K. Hakes

Vanderbilt Law School Faculty Publications

This article uses several within-sample tests to assess whether current seatbelt usage decisions are consistent with the stated preferences of survey respondents. The expressed survey values of statistical life are positively associated with the probability of seatbelt usage and are not statistically different from the values of statistical life implied by seatbelt usage decisions, which are in the $1.9 million to $8.4 million range. Seatbelt usage also varies in the expected manner with individual measures of heterogeneous attitudes toward risk, such as smoking status and education. Our evidence on seatbelt usage supports the view that consumers consistently balance expected safety …

Rethinking Place Of Business As Choice Of Law In Class Action Lawsuits, Allison M. Gruenwald

Vanderbilt Law Review

In the past century, businesses have come to operate on a national and often global level. In the past century, the United States has seen an enormous nationalization and even globalization of business. As a result, the actions of a single company increasingly have the potential to affect people far beyond the boundaries of that company's home state. When one or a few companies injure large numbers of consumers across the country, aggregate litigation (namely the class action lawsuit) becomes an especially attractive remedy. Aggregating claims allows plaintiffs to save time and money and may also enable them to present …

Pretext, Transparency And Motive In Mass Restitution Litigation, Anthony J. Sebok

Vanderbilt Law Review

On February 23, 1993 The Washington Post published an article entitled, "Tobacco's Last Gasp? Towards a Smoke-Free Society." The article tested the hypothesis that in the near future no one would smoke in the United States. Its focus was on means: how would America reach a point when virtually no one smoked? The predictions ran the usual gamut of policy devices. Although their order of appearance may be random, the list was as follows: legal prohibitions on smoking in public, taxes, social pressure, increased health insurance costs to smokers, and (finally) litigation.

The Washington Post article noted that just one …

The Denominator Blindness Effect: Accident Frequencies And The Misjudgment Of Recklessness, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

People seriously misjudge accident risks because they routinely neglect relevant information about exposure. Such risk judgments affect both personal and public policy decisions, e.g., choice of a transport mode, but also play a vital role in legal determinations, such as assessments of recklessness. Experimental evidence for a sample of 422 jury-eligible adults indicates that people incorporate information on the number of accidents, which is the numerator of the risk frequency calculation. However, they appear blind to information on exposure, such as the scale of a firm's operations, which is the risk frequency denominator. Hence, the actual observed accident frequency of …

An Institutional Analysis Of Consumer Law, A. B. Overby

Vanderbilt Journal of Transnational Law

This Article explores the revival of interest in consumer protection in the United States, and the impact of this revival on the consumer movement. The Author examines the influence that political organizations and institutions have upon the final shape and content of consumer law in the United States and European Union. The Article begins with a general introduction to institutional theory across academic disciplines and to the institutional environment and arrangements in which consumer lawmaking proceeds in the United States and Europe. Next, the Article assesses consumer initiatives in the United States and the European Union, focusing on deceptive advertising, …

Cyberjacking, Mouse Trapping, And The Ftc Act: Are Federal Consumer Protection Laws Helping Or Hurting Online Consumers?, Kenneth Sanney

Vanderbilt Journal of Entertainment & Technology Law

Only the Federal Trade Commission (FTC) can bring a federal cause of action against a company whose business practices or actions deceive consumers. However, the FTC's power is limited; it can intervene on behalf of consumers only when there is a pattern of misconduct by the business that threatens the public interest. But where the scams themselves are difficult to spot, patterns may be virtually impossible to establish. Moreover, even successful FTC actions may yield little in the way of preventative or compensatory benefit for the individual user.

My aim in this Note, therefore, is to offer one possible means …

Using Warnings To Extend The Boundaries Of Consumer Sovereignty, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

We make decisions every day for which we may not have full information. Not all such decisions lead to negative consequences, however. For example, scientists still know very little about why aspirin has its beneficial effects. However, the lack of our knowledge does not necessarily imply that our decisions are in error or that our freedom to make these decisions should be constrained. Almost invariably, we must make decisions with uncertain implications when we fail to have complete information, whether it be with respect to today's weather forecast or the chemical composition of the foods we eat, but this does …

Equitable Estoppel And The Outer Boundaries Of Federal Arbitration Law: The Alabama Supreme Court's Retrenchment Of An Expansive Federal Policy Favoring Arbitration, David F. Sawrie

Vanderbilt Law Review

A consumer purchases a manufactured home from a commercial vendor.' As part of the commercial transaction, the consumer and vendor execute a sales agreement containing the following arbitration clause: "All disputes, claims, or controversies arising from or relating to this Contract or the relationships which result from this Contract... shall be resolved by binding arbitration .... ,, The manufacturer of the home is not a party to the sales contract. Rather, the manufacturer issues a separate warranty agreement in connection with the consumer's purchase.

When the consumer discovers defects in the home, the consumer sues both the commercial vendor and …

Estimation Of Revealed Probabilities And Utility Functions For Product Safety Decisions, W. Kip Viscusi, William N. Evans

Vanderbilt Law School Faculty Publications

Using survey data on consumer product purchases, this paper introduces an approach to estimate jointly individual utility functions and risk perceptions implied by their decisions. The behavioral risk beliefs reflected in consumers risky decisions differ from the stated probabilities given to them in the survey. These results are not consistent with a Bayesian learning model in which the information respondents utilize is restricted to what the survey presents. The results are, however, potentially consistent with models in which prior risk information is influential or models in which people do not act in a fully rational manner.

"Weightier Than A Mountain": Duty, Hierarchy, And The Consumer In Japan, Anita Bernstein, Paul Fanning

Vanderbilt Journal of Transnational Law

The authors analyze the 1994 Japanese products liability law from a national-culture perspective. After examining the historical backdrop of the consumer's social role in both the United States and Japan, the authors argue that the new law cannot create a strict liability system like that of the United States in Japan, because the unique Japanese cultural context and its manipulation discourage the use of the legal process to advance consumer interests.

Individual Rationality, Hazard Warnings, And The Foundations Of Tort Law, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

If all people were fully rational and cognizant of all the risks they faced, then they would always select an efficient level of safety in all their activities and other choices. Thus people would trade off the potential benefits of the risky behavior against the costs, including the risks to life and limb, and select the activity and product mix that best promoted their welfare. In such a world, there would not only be no need for hazard warnings, but there also would be no need for liability of any kind. Purchasers of hazardous products, for example, would always value …