Law Commons^™

Price Gouging, The Pandemic, And What Comes Next, Kaitlin A. Caruso

Faculty Publications

Whenever there is a disaster, there are complaints of price gouging — that is, of people selling critical goods at grossly inflated prices. Over the last half-century, states and territories have increasingly responded by adopting anti-gouging laws that limit how much sellers can increase prices on at least some goods and services during an emergency. An overwhelming majority of jurisdictions now have such laws, and all share a few common characteristics. The laws vary considerably between jurisdictions, however, including on what products, services, and sellers they cover, how long they last, and how strictly they limit price increases. This Article …

The Tethered Economy, Aaron K. Perzanowski, Chris Jay Hoofnagle, Aniket Kesari

Faculty Publications

Imagine a future in which every purchase decision is as complex as choosing a mobile phone. What will ongoing service cost? Is it compatible with other devices you use? Can you move data and applications across de- vices? Can you switch providers? These are just some of the questions one must consider when a product is “tethered” or persistently linked to the seller. The Internet of Things, but more broadly, consumer products with embedded software, are already tethered. While tethered products bring the benefits of connection, they also carry its pathologies. As sellers blend hardware and software—as well as product …

The Content Of Consumer Law Classes Iii, Jeff Sovern

Faculty Publications

This paper reports on a 2018 survey of law professors teaching consumer protection, and follows up on similar 2010 and 2008 surveys, which appeared in Jeff Sovern, The Content of Consumer Law Classes II, 14 J. Consumer & Commercial L. 16 (No. 1 2010), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1657624 and Jeff Sovern, The Content of Consumer Law Classes, 12 J. Consumer & Commercial L. 48 (No. 1 2008), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1139894, respectively. As reported in previous surveys, professors teaching consumer law report considerable variation in coverage. Professors want to cover relatively current subjects within their courses, such as FinTech, credit invisibles, and mortgage …

The New Handshake: Where We Are Now, Amy J. Schmitz, Colin Rule

Faculty Publications

The internet has empowered consumers in new and exciting ways. It has opened more efficient avenues for consumers to buy just about anything. Want proof? Just pull out your smartphone, swipe your finger across the screen a few times, and presto – your collector’s edition Notorious RBG bobblehead is on its way from China. Unfortunately, however, the internet has not yet delivered on its promise to improve consumer protection.

Introducing The 'New Handshake' To Expand Remedies And Revive Responsibility In Ecommerce, Amy J. Schmitz

Faculty Publications

There was a time when individuals would meet in person to make purchases and do deals. They would discuss the terms, assess the trustworthiness and character of their contracting partners, and conclude the deal with a handshake. The handshake helped ensure the enforcement of the deal without need for the rule of law or legal power. That handshake was one’s bond — it was a personal trust mark. With the emergence of eCommerce, however, that handshake has nearly disappeared along with the sense of responsibility it inspired. Accordingly, this article discusses how this has impacted consumers’ access to remedies regarding …

Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.

Faculty Publications

Legal uncertainty about the applicability of local consumer protection can destroy a consumer’s claim or defense within the consumer arbitration environment. What is worse, because the consumer arbitration system cannot accommodate either legal complexity or legal uncertainty, the tendency will be to resolve cases in the way the consumer’s form contract dictates, that is, in favor of the drafter. To demonstrate this effect and advocate statutory change, this article focuses on fee-shifting statutes in California and several other states. These statutes convert very common one-way fee-shifting terms (consumer pays business’s attorneys fees if business wins but not the other way …

Females On The Fringe: Considering Gender In Payday Lending Policy, Amy J. Schmitz

Faculty Publications

Payday lending may provide a much-needed safety net for some consumers in need of quick cash for emergencies. However, data suggest that most payday loan borrowers become repeat users caught in a cycle of high-cost debt. Furthermore, empirical evidence indicates consistent overrepresentation of women, including many single mothers, among payday loan borrowers. This takes a toll not only on these women and their families, but also on society as a whole. Indeed, context matters in payday lending debates. It is thus time to think creatively and consider contextualized programs that aim to increase women’s and all consumers’ safe borrowing options, …

Secret Consumer Scores And Segmentations: Separating Consumer 'Haves' From 'Have-Nots', Amy J. Schmitz

Faculty Publications

“Big Data” is big business. Data brokers profit by tracking consumers’ information and behavior both on- and offline and using this collected data to assign consumers evaluative scores and classify consumers into segments. Companies then use these consumer scores and segmentations for marketing and to determine what deals, offers, and remedies they provide to different individuals. These valuations and classifications are based on not only consumers’ financial histories and relevant interests, but also their race, gender, ZIP Code, social status, education, familial ties, and a wide range of additional data. Nonetheless, consumers are largely unaware of these scores and segmentations, …

Sex Matters: Considering Gender In Consumer Contracts, Amy J. Schmitz

Faculty Publications

We hear about the so-called “War on Women” and persisting salary gaps between men and women in the popular media, but contracts scholars and policymakers rarely discuss gender. Instead, dominant voices in the contracts field often reflect classical and economics-driven theories built on assumptions of gender neutral and economically rational actors. Furthermore, many mistakenly assume that market competition and antidiscrimination legislation address any improper biases in contracting. This Article therefore aims to shed light on gender’s importance by distilling data from my own e-survey of Colorado consumers along with others’ research regarding gender differences in contract outcomes, interests and behaviors. …

Ensuring Remedies To Cure Cramming, Amy J. Schmitz

Faculty Publications

The unauthorized addition of third party charges to telecommunications bills ("cramming") is a growing problem that has caught the attention of federal regulators and state attorney generals. This Article therefore discusses the problems associated with cramming, and highlights consumers’ uphill battles in seeking remedies with respect to cramming claims. Indeed, it is imperative for policymakers, researchers, consumer advocates, and industry groups to collaborate in developing means for resolving these claims. Accordingly, this Article offers a proposal for resolving cramming disputes in order to advance this collaboration, and inspire development of a functioning online dispute resolution ("ODR") process to handle these …

American Exceptionalism In Consumer Arbitration, Amy J. Schmitz

Faculty Publications

“American exceptionalism” has been used to reference the United States’ outlier policies in various contexts, including its love for litigation. Despite Americans’ reverence for their “day in court,” their zest for contractual freedom and efficiency has prevailed to result in U.S. courts’ strict enforcement of arbitration provisions in both business-to-business (“B2B”) and business-to-consumer (“B2C”) contracts. This is exceptional because although most of the world joins the United States in generally enforcing B2B arbitration under the New York Convention, many other countries refuse or strictly limit arbitration enforcement in B2C relationships due to concerns regarding power imbalances and public enforcement of …

Marks, Morals, And Markets, Jeremy N. Sheff

Faculty Publications

The prevailing justification for trademark law depends on economic arguments that cannot account for much of the law's recent development, nor for mounting empirical evidence that consumer decisionmaking is inconsistent with assumptions of rational choice. But the only extant theoretical alternative to economic analysis is a Lockean "natural rights" theory that scholars have found even more unsatisfying. This Article proposes a third option. I analyze the law of trademarks and unfair competition as a system of moral obligations between producers and consumers. Drawing on the contractualist tradition in moral philosophy, I develop and apply a new theoretical framework to evaluate …

Consumer Lock-In And The Theory Of The Firm, David Yosifon

Faculty Publications

When shareholders invest in a corporation they become “locked-in” to the prospects of that firm. A shareholder cannot force the firm to buy back her shares, nor can she force it to dissolve and turn over her pro rata share of its assets. She gets nothing for her capital unless the firm profits and pays dividends, or she finds someone else willing to buy her stock. Corporate law scholars have recognized that capital “lock-in” is both a corporate law solution that enables large-scale business to flourish, and a corporate law problem that threatens the growth and proper governance of big …

Access To Consumer Remedies In The Squeaky Wheel System, Amy J. Schmitz

Faculty Publications

This article explores the “Squeaky Wheel System” (“SWS”) in business-to-consumer (“B2C”) contexts, referring to merchants’ reservation of purchase remedies and other contract benefits for only the relatively few “squeaky wheel” consumers who have the requisite information and resources to persistently seek assistance. The article uncovers how this system fosters contractual discrimination and hinders consumers’ awareness and access with respect to contract remedies. It also adds empirical insights from my recent e-survey, and offers suggestions for using the internet to empower consumers of all economic and status levels with efficient and accessible means for learning about their purchase rights and asserting …

Building Bridges To Consumer Remedies In International Econflicts, Amy J. Schmitz

Faculty Publications

Consumer purchases over the Internet (“ePurchases”) are on the rise, thereby causing an increase in conflicts regarding these purchases (“eConflicts”). Furthermore, these conflicts are increasingly international as consumers purchase goods over the Internet not knowing or caring where the seller is physically located. The problem is that if the purchase goes awry, consumers are often left without recourse due to the futility of pursing international litigation and the textured law and policy regarding enforcement of private dispute resolution procedures, namely arbitration. The United States strictly enforces arbitration contracts in business-to-consumer (“B2C”) relationships, while other countries have refused or limited enforcement …

From The Schoolhouse To The Poorhouse: The Credit Card Act's Failure To Adequately Protect Young Consumers, Eboni S. Nelson

Faculty Publications

No abstract provided.

Biasing Brands, Jeremy N. Sheff

Faculty Publications

The dominant search-costs model of trademark law posits that consumers choose products to satisfy their preferences by analytically mapping those preferences to product information that trademarks efficiently provide. This Article tests these descriptive claims against empirical and theoretical research in marketing and consumer psychology, particularly the concept of "brand equity": the value to a firm or its customers of a brand and of the firm's efforts to build and maintain that brand.

Internally complex brand equity models, juxtaposed with empirical findings in related psychology and marketing research, challenge the descriptive accuracy of the search-costs model. In particular, branding efforts can …

The Content Of Consumer Law Classes Ii, Jeff Sovern

Faculty Publications

This paper reports on a 2010 survey of law professors teaching consumer protection, and follows up on a similar 2008 survey, which appeared in Jeff Sovern, The Content of Consumer Law Classes, 12 J. CONSUMER & COMMERCIAL L. 48 (No. 1 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1139894. The 2010 survey found more uniformity in topic selection than the 2008 survey. All thirteen professors who taught survey courses reported that they taught common law fraud, UDAP statutes, the Truth in Lending Act, and the Fair Credit Reporting Act, while all but one covered the Fair Debt Collection Practices Act, the Federal Trade …

The Content Of Consumer Law Classes, Jeff Sovern

Faculty Publications

Attendees at the University of Houston Law Center Conference titled Teaching Consumer Law: The Who, What, Where, Why, When and How were surveyed to determine what topics they covered in consumer law classes. Twenty-five responses were received, representing fourteen survey classes, five clinics, and six miscellaneous responses. The responses indicated considerable diversity in the topics covered. No topic was covered by more than 21 professors and each of the 32 topics listed on the survey instrument was discussed by at least four professors. Under the circumstances, it seems difficult to claim that consumer protection classes have a canon agreed upon …

Mobile Home Mania? Protecting Procedurally Fair Arbitration In A Consumer Microcosm, Amy J. Schmitz

Faculty Publications

Consumers' lack of warranty remedies prompted Congress to enact the 2000 Manufactured Housing Improvement Act (MHIA). Under the Act, the Office of Housing and Urban Development (HUD) must develop a program for resolving MH warranty disputes by the end of 2005. This article provides input regarding that program. It also calls for broader protection of procedural fairness in arbitration of disputes regarding warranties for mobile or manufactured homes (referred to in the article as MHs for ease of reference). Although HUD's program aims to create a process for resolving warranty disputes among manufacturers, dealers and installers, this article proposes that …

Product Liability: A Commentary On The Liability Of Suppliers Of Component Parts And Raw Materials, David A. Fischer

Faculty Publications

The liability of suppliers of raw materials and component parts for harm caused by the product into which the materials have been incorporated poses difficult questions. When the raw material or component part is clearly defective, there is no question that the supplier is liable. Thus, where an ingredient in processed food is contaminated or where a truck tire has a flaw that causes a blowout, the supplier of the ingredient or the tire is liable. The difficult questions arise where the components are not inherently defective, but the finished product is defective because it lacks a safety feature or …

Tort Law: Expanding The Scope Of Recovery Without Loss Of Jury Control, David A. Fischer

Faculty Publications

This article will analyze the types of changes that are taking place by examining three expanding areas of tort law: liability for negligently inflicted mental distress, negligently inflicted pure pecuniary loss, and harm caused by defective products. This examination will demonstrate that the scope of liability can be increased in at least two ways. One is by formally expanding the scope of existing causes of action, e.g., relaxing arbitrary barriers to liability or expanding the type of damages which may be recovered. A second method is by relaxing judicial control over the jury. This relaxation of control can take place …

Products Liability--An Analysis Of Market Share Liability, David A. Fischer

Faculty Publications

In Sindell v. Abbott Laboratories the Supreme Court of California created the market share liability theory of recovery for products liability cases. The innovative Sindell theory, which applies to certain products liability cases in which causation is either questionable or difficult to prove, departed significantly from the traditional tort principles of causation and liability. The theory allows plaintiffs to recover damages for their injuries, but it discounts the defendant's liability by the probability that it did not cause the harm.

Products Liability--Functionally Imposed Strict Liability, David A. Fischer

Faculty Publications

Many manufacturers and insurance companies claim that a products liability crisis exists. This is evidenced by soaring products liability insurance rates. They express the fear that as insurance becomes unavailable or prohibitively expensive, useful products will be withheld from the market and some manufacturers may even be forced out of business. Such critics of the tort system are calling for modifications of the common law in order to give greater protection to manufacturers. A more drastic approach, vigorously championed by Professor Jeffrey O'Connell, calls for total or partial abolition of the tort system and substitution with various forms of no-fault …

Products Liability--Applicability Of Comparative Negligence, David A. Fischer

Faculty Publications

Products liability and comparative negligence are two very rapidly developing fields of tort law. In recent years, the vast majority of courts have adopted strict liability for harm caused by defective products. At the same time, the doctrine of comparative negligence has changed almost overnight from a doctrine that had been accepted by only a handful of jurisdictions into what is now the majority approach in this country.

Products Liability--Applicability Of Comparative Negligence To Misuse And Assumption Of The Risk, David A. Fischer

Faculty Publications

A trend is emerging to apply comparative negligence in strict products liability actions. This creates two serious difficulties. First is the question of how to compare the negligence of one party with the strict liability of the other party.