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, …

The Multi-Level Marketing Pandemic, Christopher G. Bradley, Hannah E. Oates

Law Faculty Scholarly Articles

Among the societal effects of the COVID-19 pandemic has been a sharp rise in the activities of multi-level marketing companies (MLMs). MLMs are business enterprises in which participants seek not only to sell products to friends, family, and social media contacts, but also to recruit them as MLM participants, with the promise of "building their own business from home."

False promises often pervade MLM sales pitches. Evidence shows that few participants see even a dollar of profit from their MLM work; the vast majority of recruits quickly abandon their MLM dreams and lose their investments. Yet the pitch has become …

Addictive Technology And Its Implications For Antitrust Enforcement, James Niels Rosenquist, Fiona M. Scott Morton, Samuel N. Weinstein

Articles

The advent of mobile devices and digital media platforms in the past decade represents the biggest shock to cognition in human history. Robust medical evidence is emerging that digital media platforms are addictive and, when used in excess, harmful to users’ mental health. Other types of addictive products, like tobacco and prescription drugs, are heavily regulated to protect consumers. Currently, there is no regulatory structure protecting digital media users from these harms. Antitrust enforcement and regulation that lowers entry barriers could help consumers of social media by increasing competition. Economic theory tells us that more choice in digital media will …

A Comment On Foohey Et Al., Steering Loan Modifications Post-Pandemic, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Data Privacy Issues In West Virginia And Beyond: A Comprehensive Overview, Jena Martin

Consumer Law Scholarship

This white paper was commissioned by the Center for Consumer Law and Education, a joint initiative launched by West Virginia University and Marshall University to “coordinate the development of consumer law, policy, and education research to support and serve consumers.”

As such, this paper has a dual purpose. First, it provides a comprehensive overview of the many different legal issues that affect data privacy concerns (both nationally and in West Virginia). Second, it documents and discusses the result of a survey and specific focus groups that were undertaken throughout the fall of 2019 into January 2020 where individuals within the …

Algorithms In Business, Merchant-Consumer Interactions, & Regulation, Tabrez Y. Ebrahim

Faculty Scholarship

The shift towards the use of algorithms in business has transformed merchant–consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In …

Equality And Access To Credit: A Social Contract Framework, John Linarelli

Scholarly Works

The problems governments face in regulating consumer finance fall into two categories: normative and cognitive. The normative problems have to do with the way that some governments, particularly those adhering to an American model of household finance, have financed social mobility and intergenerational welfare through debt, a tenuous and socially risky policy choice. Credit has a substantial social aspect to it in the United States, where the federal government has in some way engaged in subsidizing about 1/3 of consumer credit, particularly in the residential mortgage market, feeding into a substantial capital markets dimension through government-guaranteed securitization. Most Americans think …

Broadening Consumer Law: Competition, Protection, And Distribution, Rory Van Loo

Faculty Scholarship

Policymakers and scholars have in distributional conversations traditionally ignored consumer laws, defined as the set of consumer protection, antitrust, and entry barrier laws that govern consumer transactions. Consumer law is overlooked partly because tax law is cast as the most efficient way to redistribute. Another obstacle is that consumer law research speaks to microeconomic and siloed contexts—deceptive fees by Wells Fargo or a proposed merger between Comcast and Time Warner Cable. Even removing millions of dollars of deceptive credit card fees across the nation seems trivial compared to the trillion-dollar growth in income inequality that has sparked concern in recent …

Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn

All Faculty Scholarship

Public choice theory has long been the dominant lens through which economists and other scholars have viewed occupational licensing. According to the public choice account, practitioners favor licensing because they want to reduce competition and drive up their own wages. This essay argues that the public choice account has been overstated, and that it ironically has served to distract from some of the most important harms of licensing, as well as from potential solutions. We emphasize three specific drawbacks of this account. First, it is more dismissive of legitimate threats to public health and safety than the research warrants. Second, …

Coty, Amazon, And The Future Of Vertical Restraints: Evolving Distribution Norms On Both Atlantic Shores, Chris Sagers

Law Faculty Articles and Essays

No abstract provided.

Digital Market Perfection, Rory Van Loo

Faculty Scholarship

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap first by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. …

Data-Informed Duties In Ai Development, Frank A. Pasquale

Faculty Scholarship

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to …

Technology Regulation By Default: Platforms, Privacy, And The Cfpb, Rory Van Loo

Faculty Scholarship

In the absence of a technology-focused regulator, diverse administrative agencies have been forced to develop regulatory models for governing their sphere of the data economy. These largely uncoordinated efforts offer a laboratory of regulatory experimentation on governance architecture. This symposium essay explores what the Consumer Financial Protection Bureau (CFPB) has done in its first several years to regulate financial technology (“fintech”), in the context of broader technology-related concerns identified in the literature. It begins with a survey of what the CFPB has undertaken using more traditional administrative agency tools—enforcement and rulemaking—in areas such as privacy, consumer control over data, and …

Gender, Race & The Inadequate Regulation Of Cosmetics, Marie C. Boyd

Faculty Publications

Scholars and other commentators have identified failures in the regulation of cosmetics-which depends heavily on voluntary industry self- regulation-and called for more stringent regulation of these products. Yet these calls have largely neglected an important dimension of the problem: the current laissez-faire approach to the regulation of cosmetics disproportionally places women, and particularly women who are members of other excluded groups, at risk. This Article examines federal cosmetics law and regulation through a feminist lens. It argues that cosmetics law and regulation have lagged behind that of the other major product categories regulated by the Food and Drug Administration under …

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 …

The Gdpr’S Version Of Algorithmic Accountability, Margot Kaminski

Publications

No abstract provided.

Pluralism And Regulatory Response To The Sharing Economy, Erez Aloni

All Faculty Publications

Providers use platforms in dissimilar ways. Some providers create new capacity and designate it for exclusively commercial use via platforms. For example, a provider buys a car that serves predominantly for driving paying passengers, converts a standard residential rental to a short-term rental, or works full-time via a platform. Conversely, other providers leverage their idle capacity and monetize it (e.g., a provider uses the family car to drive platform passengers in the evenings). This chapter argues that the distinction between new and idle capacity is a fundamental concept that should guide regulation of activities in the platform economy. Creating new …

Choosing Corporations Over Consumers: The Financial Choice Act Of 2017 And The Cfpb, Christopher L. Peterson

Utah Law Faculty Scholarship

The Financial Choice Act of 2017 is appropriately named in at least one sense: its proposed restrictions on the authority of the Consumer Financial Protection Bureau reflect a choice by the House of Representatives to protect financial companies at the expense of consumers. This choice is borne out by the data. As this empirical review of CFPB enforcement cases demonstrates, nearly all of the relief provided to American consumers in CFPB enforcement cases arose where a bank, credit union, or other finance company deceived their customers about a material aspect of their product or service. Between 2012 and 2016, the …

Mandated Ethical Hacking—A Repackaged Solution, Corinne Moini

Law Student Publications

Hacking to prove a point or to expose technological vulnerabilities has been around since the 1960s, but it has been labeled and packaged differently as “white hacking” or “ethical hacking.” This article suggests that smart toy manufacturers, such as Mattel and VTech, should be subject to required vulnerability testing which utilizes ethical hacking under the Consumer Product Safety Improvement Act (“CPSIA”). More specifically, this article proposes to amend the Toy Safety Standard, ASTMF- 963-11, to include smart toys connected to the internet. The CPSIA and Consumer Product Safety Commission (“CPSC”) impose safety testing on all toys intended for use by …

Disruptive Platforms, Margot Kaminski

Publications

No abstract provided.

Financial Reform: Making The System Safer And Fairer, Michael S. Barr

Articles

In the fall of 2008, the financial crisis crushed the U.S. economy and plunged the country into the Great Recession. The crisis shuttered American businesses, cost millions of Americans their jobs, and wiped out home values and household savings. The macro effects hit hardest and were the longest lasting for those least able to bear the brunt of the crisis. It was devastating to middle-income families and perhaps even more so to low- and moderate-income households, who had little financial buffer (Barr 2012a). Financial stability, never robust for these families, dropped precipitously (Barr and Schaffa 2016). Both in the United …

Consumer Financial Protection Bureau Law Enforcement: An Empirical Review, Christopher L. Peterson

Utah Law Faculty Scholarship

In the aftermath of the U.S. financial crisis, Congress created a new federal agency — the Consumer Financial Protection Bureau (CFPB) — with the goal of fashioning a more just and efficient American consumer finance market. The CFPB now serves as the U.S. Government’s primary regulator and civil law enforcement agency governing consumer lending, payment systems, debt collection, and other consumer financial services. In its first four years of enforcing federal consumer protection laws, the CFPB has announced over a hundred different law enforcement cases forcing banks and other financial companies to relinquish over $11 billion in customer refunds, forgiven …

Use Of Facial Recognition Technology For Medical Purposes: Balancing Privacy With Innovation, Seema Mohapatra

Faculty Scholarship

No abstract provided.

The Neo-Liberal Turn In Environmental Regulation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Regulation has taken a neoliberal turn, using market-based mechanisms to achieve social benefits, especially in the context of environmental protection, and promoting information dissemination, labeling, and advertising to influence consumer preferences. Although this turn to neoliberal environmental regulation is well under way, there have been few attempts to manage this new reality. Instead, most commentators simply applaud or criticize the turn. If relying on neoliberal environmental reform (i.e., facing this reality regardless of one’s view of this turn), regulation and checks on these reforms are required. This Article argues that in light of the shift from traditional to neoliberal “substantive” …

Legal Beagle's Blog Archive For December 2015, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Helping Buyers Beware: The Need For Supervision Of Big Retail, Rory Van Loo

Faculty Scholarship

Since the financial crisis, consumer regulators have closely supervised sellers of credit cards and home mortgages to stamp out anticompetitive practices. Supervision programs give financial regulators ongoing access to sophisticated firms' internal data outside the litigation process. This often enables examiners to identify and correct harmful conduct more rapidly and effectively than would be possible using publicly available information and cumbersome legal tools.

Consumers spend four times more on retail goods than on financial products. The retail sector’s dominant firms — such as Amazon, Walmart, Unilever, and Kraft — employ large teams of quantitative experts armed with advanced information technologies, …

Data Breach (Regulatory) Effects, David Thaw

Articles

No abstract provided.

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 …

Enlightened Regulatory Capture, David Thaw

Articles

Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest. These include: 1) legislatively-mandated adoption of recommendations by an advisory …

Three Proposals For Regulating The Distribution Of Home Equity, Ian Ayres, Joshua Mitts

Faculty Scholarship

The Consumer Financial Protection Bureau’s recently-released “qualified mortgage” rules effectively discourage predatory lending but miss an equally important source of systemic risk: low-equity clustering. Specific “volatility-inducing” mortgage terms, when present in a substantial cluster of mortgage contracts, exacerbate macroeconomic risk by increasing the chance that the housing and lending markets will have to absorb a wave of simultaneous defaults after a downturn in housing prices. This Article shows that these terms became prevalent in a substantial proportion of residential mortgages in the years leading up to the home mortgage crisis. In contrast, during the earlier “amortization era” (when mortgagors were …