Consumer Protection Law Commons^™

Article Iii's Constraints On The Legislative Power, Elizabeth Beske

Scholarly Articles in Law Reviews & Journals

Article III’s heightened concreteness standard for statutory harms takes federal judges deep into legislative terrain, jeopardizing statutory damage provisions and confining Congress to post hoc solutions rather than preemptive strikes. The Supreme Court has insisted that creating a cause of action is a legislative function. At the same time, its recent standing cases instruct lower federal courts to permit suit on statutory injuries only when they find actual harm that bears a tight connection to injuries recognized at common law. This new harm requirement rests uneasily with countless statutes featuring statutory damage provisions that are in place precisely because damages …

How Design Law Is Taking Shape In The United States And European Union, Christine Haight Farley

Scholarly Articles in Law Reviews & Journals

This Essay uses a comparative framework to show that sophisticated design rights holders in both the United States (U.S.) and the European Union (EU) increasingly sidestep specialized design regimes in favor of more expansive trademark and copyright doctrines. Although both jurisdictions now operate cumulative intellectual property (IP) systems for industrial design, they have taken sharply divergent paths in confronting the proliferation of “design dupes”—replicas that trade on the appeal of sought-after designs. In the United States, rights holders rely chiefly on trademark law, and especially trade dress, to convert cultural recognition into legally cognizable source indication, a move facilitated by …

Motion For Leave To File Brief Of 31 Intellectual Property And Media Law Professors As Amici Curiae In Support Of Appellant And Reversal, Christine Farley

Amicus Briefs & Court Filings

Amici Intellectual Property and Media Law Professors respectfully move for leave to file a brief in support of Appellant in this appeal, pursuant to Federal Rule of Appellate Procedure 29(a)(2) and (a)(3) and 11th Circuit Rule 29-1.1 The proposed brief is being tendered herewith. All parties have received notice of the filing of this motion and proposed brief. Counsel for Appellant has consented to the filing of the proposed brief; counsel for Appellee has advised that Appellee opposes the filing.

Brief Of Law Scholars As Amicus Curiae In Support Of Appellees And Affirmance, Charles Duan

Amicus Briefs & Court Filings

Amici are law professors and scholars who focus their scholarship and teaching on intellectual property law, property law, regulatory law, and health law. They write to address the plaintiff, Novartis Pharmaceuticals Corporation (Novartis), contention that the Medicare drug price negotiation program effectuates a taking of personal property in violation of the Fifth Amendment. Amici submit this brief to provide the Court with the historical and legal background necessary to understand two issues: first, the constitutionality of government price negotiations and price regulations; second, the federal government’s use of patents. The amici explain how Courts have historically ruled on these questions, …

Forced Arbitration In Tesla’S Consumer Contracts, Abigail Hug

Arbitration Brief

The Supreme Court has supported the FAA’s preference for enforcing arbitration clauses and has extended it to forced arbitration provisions. In DirecTV v. Imburgia, the Supreme Court upheld a mandatory arbitration clause in a consumer service agreement, which additionally prohibited class arbitration. The Court reasoned that the FAA clearly states that written provisions in contracts that mandate arbitration are enforceable as all other contracts are enforceable. Companies throughout the United States use forced arbitration for employment and consumer contracts, including those for car leases. Forced arbitration clauses in consumer contracts ensure that customers settle their disputes with a company through …

The Right To Arbitrate(?): Integrating Consumer Protection Into Judicial Review Of The Mccarran-Ferguson Act And The New York Convention, Rachel Bamberger

American University Business Law Review

International commercial arbitration has grown increasingly popular as an alternative method of dispute resolution. This Comment explores the struggle courts face when they must determine whether to apply the New York Convention, an international treaty that recognizes and compels arbitration agreements, or a federal statute known as the McCarran-Ferguson Act, which delegates authority to the states to regulate insurance. Conflict arises when foreign insurers seek to compel arbitration under the New York Convention in states with antiarbitration insurance laws, and courts must choose between upholding domestic state laws or honoring the Treaty.

This Comment examines the method of analysis used …

Silence As Consumer Consent: Global Regulation Of Negative Option Contracts, Kaitlin Caruso, Prentiss Cox

American University Law Review

Worldwide, the “subscription economy” has exploded in recent years, especially among online sellers of consumer goods and services. Although these subscriptions use various contract forms, many have one common feature: the negative option. With a negative option contract, once a consumer has signed up, the contract will continue until the consumer actively reaches out to cancel it. These are wildly popular among sellers, as they create continuous income and put inertia on the sellers’ side. Unsurprisingly, then, consumers complain in great numbers about being trapped in agreements that are easy to sign up for but seemingly impossible to cancel. Even …

Regulating Organic, Sarah J. Morath

American University Law Review

Even highly regulated labels, such as the organic label, have the potential for greenwashing. As recently as January 2023, a grain seller was indicted in federal court for a $43 million scheme that involved the sale of non-organic grain as USDA-certified organic. But today’s organic market is also full of sellers who follow the current federal organic regulations but fail to demonstrate the spirit of the organic movement—forgoing soil, animal welfare, and community for profit. I call this nuanced form of greenwashing quasi-greenwashing. It arises when a business complies with a rule or standard but takes advantage of consumer misunderstanding …

Public Health Product Hops, Michael S. Sinha

American University Law Review

Pharmaceutical product hops are anticompetitive maneuvers that often represent a last-ditch effort by brand manufacturers to preserve market share in the face of generic competition. An integral part of product life cycle management strategies, product hops may offer marginal benefits to patients but can substantially increase costs to payers and patients alike. Industry advocates, however, maintain that product hops represent essential follow-on research and development, resulting in the development of novel products that would otherwise never reach the market.

Is there a middle ground between these two diametrically opposed views? Might certain product hops be considered beneficial, perhaps if they …

Who Gets To Make A Living? Street Vending In America, Joseph Pileri

Scholarly Articles in Law Reviews & Journals

Street vending has long provided those at the margins of American society with the opportunity for economic advancement. A key segment of the informal economy, street vending has low barriers of entry and attracts entrepreneurs who lack the resources, ability, or desire to start brick-and-mortar businesses or work for someone else. Street vending also contributes to the vitality and safety of urban America.

Despite the pivotal role that street vending plays, cities around the country criminalize vending by treating the violation of street vending regulations as a criminal offense. Recent high-profile vendor arrests in New York City and Washington, DC …

Widening The Lens On Content Moderation, Jenna Ruddock, Justin Sherman

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Testimony Before The U.S. House Of Representatives Committee On Financial Services On “Addressing Climate As A Systemic Risk: The Need To Build Resilience Within Our Banking And Financial System” In June 2021, Hilary J. Allen

Legislative Testimony & Comments

No abstract provided.

Sandbox Boundaries, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

Around the world, subnational and national regulatory sandboxes are being adopted in an effort to promote fintech innovation. These regulatory sandboxes seek to achieve this by rolling back some of the consumer protection and prudential regulations that would otherwise apply to the firms trialing their financial products and services in the sandbox. While sacrificing such protections in order to promote innovation is problematic, such sacrifice may nonetheless be justifiable if, by working with innovators in the sandbox, regulators are educated about new technologies in a way that enhances their ability to effectively promote consumer protection and financial stability in other …

Using Data Exclusivity Grants To Incentivize Cumulative Innovation Of Biologics' Manufacturing Processes, Eric Lawrence Levi

American University Law Review

No abstract provided.

It's Time To Remove The 'Mossified' Procedures For Ftc Rulemaking, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

This article, prepared for The George Washington Law Review’s Symposium “The FTC at 100,” addresses the FTC’s rulemaking process — specifically the quasi-adjudicative process mandated by the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act of 1975 and the additional procedures added by the Federal Trade Commission Improvements Act of 1980 (collectively called the “Magnuson-Moss Procedures”). The article compares how long it took the FTC to complete or terminate the rulemakings it undertook under the Magnuson-Moss Procedures (including amendments to previously issued rules) with the amount of time it took the FTC to issue rules under the “regular” Administrative Procedure …

Can Consumers Bring State Claims For Furnisher Errors On Their Credit Reports, Catherine Bourque

Legislation and Policy Brief

In an increasingly digital world, it can often feel like numbers define us. Whether your social security number, your phone number, or your credit score, the cold truth is that your identity is often boiled down to a single number. In the financial world, your credit score traditionally defines your eligibility for credit and the cost of credit, but the uses of credit scores have expanded to include premiums for insurance, employment eligibility, and other non-financial determinations. Particularly in tough financial times, small fluctuations in credit scores can have large impacts on consumers’ access to affordable credit.

As furnishers and …

Access To Health Care As An Incentive For Healthy Behavior, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Hundreds of thousands of lives have been saved by vehicle safety standards. For many years, the auto industry fought the adoption of even the most basic standards tooth and nail, arguing that driver responsibility was the key to preventing auto accidents. In doing so, vehicle manufacturers "reinforceled] certain common sense ideas about traffic safety"-that drivers were responsible for car accidents and that vehicle design could not do much to make serious crashes survivable-"and suppressled] others." Auto insurers-who bear much of the economic cost of car crashes through a combination of first party and liability insurance-initially joined auto manufacturers in pushing …

Sugary Drinks, Happy Meals, Social Norms, And The Law, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

What role should government play in discouraging harmful overconsumption? What modes of government intervention best strike the balance between effectiveness and political acceptability? It is well established that government has a legitimate interest in protecting the health and safety of the people, even from their own choices and actions. Furthermore, there is no fundamental right to sell or purchase particular services or products in particular configurations. The appropriate question, then, is not what government may do to prevent non- communicable diseases that are associated with individual behavior choices, but rather what government should do. This comment on David Friedman's Public …

Shame, Blame, And The Emerging Law Of Obesity Control, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

In using law as a tool to combat the obesity epidemic, legal scholars and policymakers are drawing heavily on the lessons of tobacco control. This Article describes the resulting emergence of "obesity control law" and argues for a radical reorientation of it from a "denormalization" strategy based on the tobacco control experience to a "destigmatization" strategy based on the HIV prevention experience. The war on obesity is nearing a political crossroads. Subsidies and food industry regulations aimed at making our environment more conducive to physical activity and healthy eating are in danger of losing out to cheaper and more politically …

“Strong Words, Gentle Deeds”: Evaluating The Effectiveness Of The Maryland Immigration Consultant Act Five Years On, Cori Alonso-Marsden

Legislation and Policy Brief

On February 7, 2005, legislators introduced in the Maryland General Assembly a bill entitled “Consumer Protection – Immigration Consulting Services.” Designated as House Bill 691, the legislation sought to protect Maryland consumers through a series of civil and criminal provisions targeting consultants for unauthorized immigration legal practice. Primarily, House Bill 691 limited the types of services an immigration consultant could offer and the claims she could make regarding those services. In addition, the law required that the consultant provide the client with a posted disclaimer regarding the scope of the service, and a written contract prior to the provision of …

Attention All Internet Users: How Proposed Amendments To The Communications Decency Act Could Save Your Reputation, Niki Blumentritt

Legislation and Policy Brief

Imagine a beautiful fall day on a Southern college campus. The leaves are changing, and the sound of the band practicing for this weekend’s big game echoes throughout campus.  Jane, a college freshman, is walking through campus on the way back to her dorm from her Biology 101 class.  Usually, Jane’s walk is uneventful, aside from the occasional run-in with a friend or sorority sister; however, today is much different.  Jane notices that many people are staring, pointing, and snickering at her.  Is there something on her face?  She quickly pulls out her compact and realizes that all makeup is …

The Dodd-Frank Wall Street Reform And Consumer Protection Act: A Failed Vision For Increasing Consumer Protection And Heightening Corporate Responsibility In International Financial Transactions, Eric C. Chaffee

American University Law Review

No abstract provided.

The Consumer Financial Protection Bureau's Appointment With Trouble, Kent Barnett

American University Law Review

No abstract provided.

Armed And Dangerous: The Crime Of Mortgage Fraud And What Congress Must Do To Stop It, Gabriel Zitrin

Legislation and Policy Brief

Instead, it will simply argue that while the relevant monetary policymakers continue far too slowly in the pursuit of mortgage securities reform, lawmakers whose purview includes the housing sector should use this opportunity to pursue a two-part strategy of aggressively combating fraud in the terms and sales of individual mortgages and taking bold measures to ensure that not simply embattled mortgage-holders but the victims of fraudulent lending behavior can achieve financial sustainability, even as they keep ownership of their homes.

Brief Of Aarp, The National Legislative Association On Prescription Drug Prices, Community Catalyst, And Prescription Policy Choices, As Amici Curiae In Support Of Appellees, Ims Health Inc. V. Sorrell, Sean Flynn

Amicus Briefs & Court Filings

This brief supports protecting the confidentiality of prescription records in the state of Vermont from commercial uses by pharmeceutical companies to market new drugs to physicians directly.

Improving The Rolling Contract, Stephen E. Friedman

American University Law Review

This article addresses the increasingly common problem of buyers finding important contract terms inside the box of a newly purchased item instead of learning about them before or during purchase. The failure of courts to develop a satisfactory approach to deciding which contact terms sellers may provide after purchase is of great significance in light of the rapid proliferation of rolling contracts. In this article, Friedman proposes a mechanism that will ensure that sellers have the flexibility to defer presentation of some terms but that will also protect purchasers against the unfair imposition of unexpected and important terms arriving at …

Introduction To Symposium On Integrating New Economic Learning With Antitrust Doctrine, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Most Favored Nation Clauses, Jonathan Baker, William Kopit, Thomas Overstreet, Robert Mcnair, Jr., Steven Snow

Presentations

Event description The Federal Trade Commission and Department of Justice will commence public hearings in Washington, D.C. on February 26, 2003 on the implications of competition law and policy for health care financing and delivery. The hearings will broadly consider the impact of competition law and policy on the cost, quality, and availability of health care, and the incentives for innovation in the field. Specific subjects to be considered include hospital mergers, the significance of non-profit status, vertical integration, quality and efficiencies, the boundaries of the state action and Noerr-Pennington doctrines, monopsony power, the adequacy of existing remedies for anticompetitive …

Mandatory Arbitration Of Consumer Disputes: A Proposal To Ease The Financial Burden On Low-Income Consumers , Julia A. Scarpino

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Hanging Up On Consumers: Why The Fcc Cannot Stop Slamming In The New Telecommunications Market , Christopher R. Day

American University Law Review

No abstract provided.