Law Commons^™

Future Strategies For Improving Consent In Electronic Contracting, Ran Bi

Ran Bi

China's economy has been running deep into an exciting phrase called “Internet +”. In North America, most businesses have online presence and conduct numerous transactions online. Unprecedentedly, electronic contracts have been governing more Individuals and corporations’ legal relationships in a growing proportion of businesses and everyday life.

E-contracts, usually with no physical architecture, are easy to “sign”—people just click one or two icons on a computer / smartphone screen after “reading” (scroll down) the contents. However, e-contracts are standard form contracts which are provided by vendors . Users are easy to become victims of exploitative terms, because their consent has …

Future Strategies For Improving Consent In Electronic Contracting, Ran Bi

Ran Bi

China's economy has been running deep into an exciting phrase called “Internet +”. In North America, most businesses have online presence and conduct numerous transactions online. Unprecedentedly, electronic contracts have been governing more Individuals and corporations’ legal relationships in a growing proportion of businesses and everyday life.

E-contracts, usually with no physical architecture, are easy to “sign”—people just click one or two icons on a computer / smartphone screen after “reading” (scroll down) the contents. However, e-contracts are standard form contracts which are provided by vendors1. Users2 are easy to become victims of exploitative terms, because their consent has been …

Health Care And The Balance Billing Problem: The Solution Is The Common Law Of Contracts And Strengthening The Free Market For Health Care., George A. Nation Iii

George A Nation III

A large and growing group of insured patients is being unfairly burdened by hospitals’ exorbitant chargemaster prices. The burden is brought to bear on these patients through a process known as balance billing. For a variety of reasons hospital networks are becoming narrower as hospital systems contract with fewer insurers, and as a result, more and more patients are receiving balance bills. The practice of balance billing puts upward pressure on health care prices in general. That is, this practice leads to higher prices across the board for the uninsured, the out-of-network insured and even the in-network insured. This article …

Why Mediators Should Be Regulated, Art Hinshaw

Art Hinshaw

In the United States consumers engage mediators on a caveat emptor basis. The regulatory scheme for mediators is a patchwork of mediation referral organizations which allows unscrupulous mediators to exploit consumers with little to no recourse. One egregious example is that of Gary J. Karpin, a disbarred lawyer turned divorce mediator, who used the mediation process to con forty people into giving him approximately $250,000 before taking up residence in prison. In an age when everyone from doctors to cosmetologists is subject to occupational regulation, why are mediators virtually unregulated? Mediators have long been divided on the question of regulation. …

Mistakes, Airfares, And Consumers: Restoring The Department Of Transportation's Role In Regulating Unfair Trade Practices, Terence Lau

Terence Lau

This Article traces the problem of mistake airfares and the federal government’s response to airlines that cancel tickets for erroneous fares. Part I of the Article explores airline pricing generally, and argues that airline tickets are a unique form of commodity good, one where there is no consumer expectation of a reasonable price. The dynamic nature of airline yield management means that prices for the exact same seat on an airplane can range dramatically on a variety of circumstances and factors that are beyond the knowledge, control or comprehension of the ordinary consumer. The Article investigates several well-known examples of …

The Federal Restore Act And Its Impact On The Gulf States Following The Deepwater Horizon Oil Spill, Sara Mammarella

Sara Mammarella

On April 20, 2010, what has been described as “the worst oil spill in U.S. history,” the BP Deepwater Horizon oil spill, occurred off the Louisiana coast, affecting a five-state area in the Gulf region (Florida, Alabama, Louisiana, Mississippi, and Texas), dumping an estimated 4.9 billion barrels of oil into the Gulf of Mexico. The harms that occurred were widespread and devastating: eleven people were killed, 1,000 miles of coastline was degraded, ocean life and beaches were destroyed, and the local economy of the region was adversely impacted, especially fishing and tourism industries. In response, Congress passed the federal RESTORE …

Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell

Julian Dibbell

When does work become play, and play work? Courts have considered the question in a variety of economic contexts, from student athletes seeking recognition as employees to professional blackjack players seeking to be treated by casinos just like casual players. Here I apply the question to a relatively novel context: that of online gold farming, a gray-market industry in which wage-earning workers, largely based in China, are paid to play online fantasy games (MMOs) that reward them with virtual items their employers sell for profit to the same games’ casual players. Gold farming is clearly a job (and under the …

Crowdsourcing (Bankruptcy) Fee Control, Matthew Bruckner

Matthew Adam Bruckner

In this article, I explore how crowdsourcing can help reduce the cost of professional representation in corporate bankruptcy cases. The cost of professional representation in bankruptcy cases is currently a hot topic, with oral argument haven taken place before the U.S. Supreme Court in Baker Botts L.L.P. v. Asarco, L.L.C. in February 2015, which case addressed various issues raised in my article. In brief, the fees of lawyers, investment bankers, and other bankruptcy professionals has been spiraling out of control because chapter 11’s existing fee control system is broken. That system can neither identify nor control professional overcharging, which empirical …

“Whimsy Little Contracts” With Unexpected Consequences: An Empirical Analysis Of Consumer Understanding Of Arbitration Agreements, Jeff Sovern

Jeff Sovern

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box …

Mutual Pharmaceutical Co. V. Bartlett: A Need For “Explicit” Congressional Action And State Tort Law Reform, Kara A. Ritter

Kara A Ritter

No abstract provided.

Complexity And Simplicity In Law: A Review Essay (Cass R. Sunstein, Simpler: The Future Of Government (2003)), David M. Driesen

David M Driesen

This essay discusses Cass Sunstein’s book, Simpler: The Future of Government, in order to advance our understanding of the concepts of complex and simple law. Many writers identify complexity with uncertainty and high cost. This essay argues that complexity bears no fixed relationship to costs or benefits. It also shows that complexity’s relationship to uncertainty is so ambiguous that it is profitable to treat complexity and uncertainty as separate concepts. It develops useful separate concepts of legal and compliance complexity that will aid efforts to simplify law, like the one Sunstein claims to have embarked upon. It also argues that …

The Law And Economics Of Microfinance, Katherine Helen Mary Hunt

Katherine Helen Mary Hunt

Financial inclusion may be jargon which appeals to international donors and academics, but the strategic implementation in developing countries is often based on international du jour priorities, such as microfinance. The topic of microfinance is highly debated in the academic literature, although little empirical work has been published. Further, no literature to date has considered microfinance from a law and economics perspective. This paper seeks to contribute to the gap in the literature by considering how microfinance has evolved to address the credit market failure, and how microfinance regulation should be designed to promote long term financial inclusion via financially …

The Continuing Battle Of Fda Regulation Of Dietary Supplements And Their Adverse Affect On Young Adults And Other Individuals, Andrew Bernard Jaffe

Andrew Bernard Jaffe

THE CONTINUING BATTLE OF FDA REGULATION OF DIETARY SUPPLEMENTS AND THEIR ADVERSE AFFECT ON YOUNG ADULTS AND OTHER INDIVIDUALS

Abstract

Ever since the enactment of the Dietary Supplement Health and Education Act of 1994 (DSHEA) the Food and Drug Administration (FDA) has struggled to regulate dietary supplements. This is due to the definition of dietary supplements as foods in the act. This gives supplement manufacturers greater loopholes when introducing supplements on the market. The FDA’s inability to regulate dietary supplements efficiently has been present for decades. Multiple battles are still occurring today which is proven to have an adverse effect …

Public School Governance And Cyber Security: School Districts Provide Easy Targets For Cyber Thieves, Michael A. Alao

Michael A. Alao

School districts rely on information systems to a similar extent as private, business organizations, yet the rules and regulations to ensure that school districts maintain adequate security to prevent data breaches and theft have failed to keep pace with private-sector developments. Advances in the private sector include notice-of-breach laws, consumer protection laws limiting individual liability for fraudulent electronic funds transfers, and auditing and reporting of internal controls. The public sector, including school districts, has also made advances in cyber security rules and regulations, but to a more limited extent than the private sector. Because of the sheer number of public …

What Do We Worry About When We Worry About Price Discrimination? The Law And Ethics Of Using Personal Information For Pricing, Akiva A. Miller

Akiva A Miller

New information technologies have dramatically increased sellers’ ability to engage in retail price discrimination. Debates over using personal information for price discrimination frequently treat it as a single problem, and are not sufficiently sensitive to the variety of price discrimination practices, the different kinds of information they require in order to succeed, and the different ethical concerns they raise. This paper explores the ethical and legal debate over regulating price discrimination facilitated by consumers’ personal information. Various kinds of “privacy remedies”—self-regulation, technological fixes, state regulation, and legislating private causes of legal action—each have their place. By drawing distinctions between various …

Consumers As Marketers: An Analysis Of The Facebook “Like” Feature As An Endorsement, Chang Zhou

Chang Zhou

No abstract provided.

How To Sculpt A Settlement And Notice Program That Will Minimize Scrutiny And Professional Objectors, Cassie L. Needels

Cassie L Needels

This article is focused on the importance of developing a settlement and notice program that will minimize scrutiny and professional objections, as well as how to implement a settlement and notice program accordingly. By using readily available resources, avoiding hot button indicators, effectively reaching the class, including all required information in the notice documents, avoiding legalese in all class communications, and allowing adequate time for class members to respond, you should be able to overcome judicial scrutiny and minimize the number of objections. Written by Judicially-recognized legal notification experts and a settlement administration expert with an extensive background as an …

At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson

Lisa Tripp

The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.

AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …

Contracting In The Modern World, Enrico Baffi

enrico baffi

In this paper I try explore some of the basic features of modern mass contracting. In my opinion, there are basically four characteristics of modern mass contracting: a)he reduced negotiations; b) the dissemination of standard form contracts; c) the presence of abusive clauses; d) and the recapitulation of the contract and its execution in a single act of stipulation. All the changes are the consequences in the changes of relative costs of activities: a) The reduction in negotiations is the result first of all of the costs that this activity requires and of the costs required to manage personalized contracts; …

Class Arbitration: The Necessary Counterpart To The Arbitrability Of Statutory Rights, Laura Yvonne Zielinski

Laura Yvonne Zielinski

Why is it so problematic to restrict the availability of class arbitration in the United States? I will argue in my paper that class arbitration is a compromise between the pro-arbitration policy and the protection of weaker parties and thus necessary to sustain the liberal American model of arbitration. It is indeed the necessary counterpart to the arbitrability of statutory rights.

During the last thirty years, the policy of the United States towards arbitration has become increasingly favourable and the introduction of arbitration clauses into all sorts of contracts, including adhesion contracts between parties of highly unequal bargaining power, has …

Opting Out Of The Procedural Morass: A Solution To The Class Arbitration Problem, Emanwel J. Turnbull

Emanwel J Turnbull

American class actions are internationally regarded as a procedural form to avoid and widely criticized in the United States. They have been narrowed and restricted by U.S. statutes and case law. Plaintiffs' lawyers in consumer class actions are portrayed as greedy and fraudulent, while businesses are increasingly acting to avoid class actions through mandatory pre-dispute arbitration clauses. Even class arbitration is criticized as leading to a “procedural morass.” This Article proposes that parties and arbitral fora opt out of the American procedural morass (and the attendant long-running disputes about American class actions) by adopting an English procedural rule for aggregation. …

Direct And Enhanced Disclosure Of Researcher Financial Conflicts, Roy G. Spece Jr.

Roy G Spece Jr.

Abstract of DIRECT AND ENHANCED DISCLOSURE OF RESEARCHER FINANCIAL CONFLICTS OF INTEREST: THE ROLE OF TRUST In earlier writing I recommended direct disclosure of a major researcher financial conflict of interest, per capita funding—i.e., providing a fixed sum per subject recruited and enrolled in a study. This article adds a recommendation for enhanced direct disclosure. The enhancement in the disclosure is a summary of why per capita and excess payments are being discussed. The reason they are being discussed is because of their risk of introducing bias into researchers’ decisions regarding study design, implementation, and interpretation as well as concerning …

Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi

Steven G Calabresi

This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” We trace the constitutional history of this right from Tudor England down to present day state and federal constitutional law. We begin with Darcy v. Allen (also known as the Case of Monopolies decided in 1603) and the Statute of Monopolies of 1624, both of which prohibited English Kings and Queens from granting monopolies. We then show how the American colonists relied on English rights to be free from government granted monopolies during the Revolutionary War …

How Government Guarantees In Housing Finance Promote Stability, David Min

David Min

In the aftermath of the financial crisis, major reforms of the U.S. housing finance system are likely. One of the key issues facing policy makers in this area is whether and to what extent the federal government should maintain its current role in the residential mortgage markets. Since the New Deal, the federal government has guaranteed the primary sources of housing finance in the United States—bank and thrift deposits, and the obligations of the mortgage securitization conduits Fannie Mae, Freddie Mac, and Ginnie Mae.

The prevailing view of government guarantees is that they increase financial instability because they encourage excessive …

How Government Guarantees In Housing Finance Promote Stability, David Min

David Min

In the aftermath of the financial crisis, major reforms of the U.S. housing finance system are likely. One of the key issues facing policy makers in this area is whether and to what extent the federal government should maintain its current role in the residential mortgage markets. Since the New Deal, the federal government has guaranteed the primary sources of housing finance in the United States—bank and thrift deposits, and the obligations of the mortgage securitization conduits Fannie Mae, Freddie Mac, and Ginnie Mae.

The prevailing view of government guarantees is that they increase financial instability because they encourage excessive …

Vertical Boilerplate, James Gibson

James Gibson

Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate -- take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs, because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach -- i.e., they sample a single stratum of boilerplate and assume …

Mental Budget: Inefficient Clauses Or Consumer Choices?, Enrico Baffi

enrico baffi

In this paper I aim to demonstrate that due the phenomenon of consumer mental accounting, it's not possible to consider money as fungible. Consumers decide to spend a certain amount of money for a kind of good and they are not willing to take some extra money from the jars that contain the money to spend for other goods. But consumers seem to have a sort of reserve which encompass efforts, time, and the possibility to bear risk that they use to save money and obtain a lower price for a good. To explain, a good can be delivered at …

Adjusting Unconscionability As An Alternative To The "'Fair Contracts' Approval Mechanism", Daniel J. Cohn

Daniel J. Cohn

Courts are in the habit of enforcing contracts. Courts enforce contracts governing consumer transactions even though empirical data show consumers do not read those terms. The big question is, “Should they?” One legal scholar, Shmuel I. Becher, has answered that question with a resounding “yes, but differently.” Becher proposes a creative and comprehensive third-party approval system for consumer contracts, known as the “‘Fair Contracts’ Approval Mechanism.” In this Paper, I identify several fatal problems associated with Becher’s proposed system, and—given those problems—propose an alternative method of protecting consumers. Specifically, I suggest adjusting the unconscionability doctrine to include a sliding-scale analysis …

Barriers To Market Discipline: A Comparative Study Of Regulatory Reforms, Vincent Di Lorenzo

Vincent Di Lorenzo

Barriers to Market Discipline: A Comparative Study of Mortgage Market Reforms This article explores regulatory reforms in the U.S. and U.K. in response to the recent mortgage market crisis. These reform efforts serve as case studies for evaluation of necessary reforms being considered in many nations. Two issues are examined. First, the article explores the extent to which regulatory bodies have recognized behavioral barriers to market discipline on the part of both consumers and industry actors. The academic literature has long identified such barriers, but recognition by government regulators has lagged. Second the article examines the varied response in the …

Assessing The Costs & Benefits Of Credit Card Rewards: A Response To Who Gains And Who Loses From Credit Card Payments? Theory And Calibrations, Steven Semeraro

Steven Semeraro

Abstract: Assessing the Costs & Benefits of Credit Card Rewards: A Response to Who Gains and Who Loses from Credit Card Payments? Theory and Calibrations For two decades, economic and legal academics have speculated about the impact of the fees that merchants pay for credit card acceptance. Since all customers pay the same price, the theory goes, everyone pays for the benefits that go only to credit card users. A recent Federal Reserve Bank of Boston (FRBB) policy paper written by economists Scott Schuh, Oz Shy, and Joanna Stavins entitled Who Gains and Who Loses from Credit Card Payments? Theory …