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Full-Text Articles in Law
Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz
Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz
Faculty Publications
Professor Jean Braucher greatly contributed to the exploration of consumer and contract law by questioning how the law operates in the real world and highlighting the importance of “law in action.” In recognition of that contribution, this Article focuses on law in action with respect to consumers’ quest to obtain remedies regarding their business-to-consumers (“B2C”) contracts. Currently, consumers often have no practical recourse with respect to B2C purchase problems due to the complexity, cost, and inconvenience of the processes for obtaining remedies. Accordingly, stated legal rights become meaningless for individuals living in the real world. This Article, therefore, explores access …
Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, Nancy Kim, D.A. Jeremy Telman
Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, Nancy Kim, D.A. Jeremy Telman
Faculty Scholarship
Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put …
Arbitration And The Contract Exchange, Andrew A. Schwartz
Arbitration And The Contract Exchange, Andrew A. Schwartz
Publications
A contract exchange, defined as an organized marketplace for the creation or trading of specific contracts, provides benefits to its members as well as the public at large. But legal disputes can arise on contract exchanges, just as they do anywhere else, and those disputes can be litigated, mediated, arbitrated, or resolved in some other way. This Essay claims that arbitration, rather than litigation, is a particularly useful and appropriate means for resolving exchange-related disputes, and that this is true not only for traditional contract exchanges, like the Chicago Board of Trade, but also for online "consumer contract exchanges," such …
Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz
Consumer Contract Exchanges And The Problem Of Adhesion, Andrew A. Schwartz
Publications
Businesses and sophisticated parties have long used "contract exchanges," like the Chicago Board of Trade, to obtain a fair price and protect themselves from market volatility. These contract exchanges have greatly benefited both their participants and the public at large, but participation was long limited to a wealthy few. A decade ago, however, Internet websites, including Hotwire and Priceline, brought the power of contract exchanges directly to consumers, allowing regular people to flex their collective bargaining power to obtain low prices on travel services. Even more recently, other such "consumer contract exchanges," including Prosper and MoneyAisle, have organized vibrant markets …
Unequal Promises, Aditi Bagchi
Unequal Promises, Aditi Bagchi
All Faculty Scholarship
This essay explores the nature and implications of a type of inequality that is widespread but largely ignored. Promises deliver important ethical value, and commercial promises, because they are our most common experience of promise with strangers, are of special value. But not all commercial promises generate that value equally. This paper makes the following claims: (1) while some retail promises are promises either to deliver a good or service, or to pay some compensation, other retail promises are simple promises to deliver a good or service; (2) retail promises in high-end markets are more likely to have the simple …
Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz
Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz
Faculty Publications
Despite courts' and commentators' denial of morality and focus on efficiency in contract law, fairness and flexibility have remained the bedrocks of the unconscionability doctrine. This Article therefore departs from the popular formalist critiques of unconscionability that urge for the doctrine's demise or constraint based on claims that its flexibility and lack of clear definition threaten efficiency in contract law. Contrary to this formalist trend, this Article proposes that unconscionability is necessarily flexible and contextual in order to serve its historical and philosophical function of protecting core human values. Unconscionability is not frivolous gloss on classical contract law. Instead, it …
Consideration Of 'Contracting Culture' In Enforcing Arbitration Provisions, Amy J. Schmitz
Consideration Of 'Contracting Culture' In Enforcing Arbitration Provisions, Amy J. Schmitz
Faculty Publications
The Federal Arbitration Act mandates strict and uniform enforcement of standardized pre-dispute arbitration provisions. This may not be proper, however, in light of the importance of context with respect to these provisions. This Article therefore seeks to remind courts of the importance of exchange context by proposing a "contracting culture" continuum for enforcing these arbitration provisions that acknowledges the impacts of these provisions in a particular communal context. "Contracting culture" encompasses economic and non-economic relational factors that impact dispute resolution agreements, but go beyond common conceptions of "culture" focused on ethnicity, nationality, or religion. It also explores beyond the primary …
Arbitration, Unconscionability, And Equilibrium: The Return Of Unconscionability Analysis As A Counterweight To Arbitration Formalism, Jeffrey W. Stempel
Arbitration, Unconscionability, And Equilibrium: The Return Of Unconscionability Analysis As A Counterweight To Arbitration Formalism, Jeffrey W. Stempel
Scholarly Works
However incomplete, unaggressive, or sub-optimal, unconscionability analysis of arbitration agreements has made something of a comeback in the late twentieth century and early twenty-first century. Just as nature abhors a vacuum, water seeks to be level, and ecosystems work to retain environmental stability, the legal system has witnessed an incremental effort by lower courts to soften the rough edges of the Supreme Court's pro-arbitration jurisprudence through rediscovery of what might be called the “unconscionability norm”--a collective judicial view as to what aspects of an arbitration arrangement are too unfair to merit judicial enforcement. In rediscovering and reinvigorating the unconscionability norm …
Doctors, Hmos, Erisa, And The Public Interest After Pegram V. Herdrich, Jeffrey W. Stempel, Nadia Von Magdenko
Doctors, Hmos, Erisa, And The Public Interest After Pegram V. Herdrich, Jeffrey W. Stempel, Nadia Von Magdenko
Scholarly Works
The Employee Retirement Income Security Act of 1974 was enacted in the wake of highly publicized pension disasters in order to protect employee pension rights. Born as a piece of pro-worker legislation, it initially was criticized by business groups as a cause of bureaucratic arteriosclerosis that was worse than the disease of pension failures. Even worse, it prompted many employers to consider dispensing with pension plans altogether rather than struggle with the administrative and financial obligations of ERISA. Business, labor, and the public all complained about the law's complexity. It even became something of a national joke as regulators took …
Section 365 In The Consumer Context: Something Old, Something New, Something Borrowed, Something Blue, Michael G. Hillinger, Ingrid Michelsen Hillinger
Section 365 In The Consumer Context: Something Old, Something New, Something Borrowed, Something Blue, Michael G. Hillinger, Ingrid Michelsen Hillinger
Faculty Publications
The § 365 consumer debtor case law has a further complication. Much of it arises in the context of the last great bankruptcy frontier, Chapter 13. Until recently, Chapter 11 has occupied the minds and hearts of courts and attorneys. Not any more. And, as attorneys and courts take a closer, harder look at Chapter 13, it is no longer possible to describe it as a “streamlined creditors-can’t-vote Chapter 11”. Chapter 13 is unique, presenting its very own quandaries, not the least of which is how its provisions and § 365 interact. We live in interesting times.
Replacing Strict Liability With A Contract-Based Products Liability Regime, Richard C. Ausness
Replacing Strict Liability With A Contract-Based Products Liability Regime, Richard C. Ausness
Law Faculty Scholarly Articles
When strict products liability first appeared on the scene some thirty-five years ago, it was heralded as a boon to consumers whose claims to compensation had hitherto been frustrated by the law of sales. Warranty law, it was said, worked fairly well in purely "commercial" transactions, but tort law did a better job in cases where ordinary consumers suffered personal injuries or property damage from defective products. To be sure, defenders of warranty law pointed out that the newly-drafted Uniform Commercial Code (the "Code" or "U.C.C.") was much more consumer friendly than the old Uniform Sales Act. Nevertheless, the proponents …
Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel
Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel
Scholarly Works
The Seventh Amendment to the Constitution preserves for litigants a right to a jury trial in actions at law. The right to a jury trial does not attach for equitable actions, but in cases presenting claims for both legal and equitable relief a right to a jury trial exists for common questions of fact. Although many modern statutes and claims did not exist in 1791, the Amendment has been interpreted to require a jury trial of statutory claims seeking monetary damages, the classic form of legal relief, so long as there is a relatively apt analogy between the modern statutory …
A Better Approach To Arbitrability, Jeffrey W. Stempel
A Better Approach To Arbitrability, Jeffrey W. Stempel
Scholarly Works
Historically, Anglo-American courts refused to enforce arbitration agreements, jealously guarding their dispute resolution monopoly. During the early twentieth century, merchants and attorneys began seeking legislation requiring courts to defer to arbitration. The United States Abitration Act took effect January 1, 1926 and has remained essentially unchanged. It was written with the implicit assumption that it would be invoked by commercial actors having relatively equal bargaining power and emotive appeal to a jury. The Act says nothing to direct the court's inquiry concerning the quality of either party's assent to the arbitration clause other than requiring a written arbitration agreement and …