Consumer Protection Law Commons^™

Weeding Out The Rotten Apples: A Third-Party Certification Regime And Strengthened Ftc Authority, Aaron M. Dubin-Ramos

Cardozo Law Review

he rise in greenwashing, a business practice that misleads consumers and investors about one’s environmental performance, has sparked debate regarding the best avenue for mitigating such a phenomenon. Common proposals include private lawsuits, the Federal Trade Commission’s Green Guides, the Securities and Exchange Commission’s antifraud regime under Rule 10b-5 of the Securities Exchange Act of 1934, state frameworks, or the International Social and Environmental Accreditation and Labelling Alliance. However, each response presents flaws, such as a potential rise in greenhushing, nonbinding guidance, narrow applicability to greenwashing claims, alignment with the anti-Environmental, Social, and Governance political movement, and buy-in issues. This …

“Contains: Gluten” And “Gluten Free”; Fda, It’S A No-Grainer!, Elizabeth Bulat

Cardozo Law Review

Reading food, drug, and cosmetic labels is a frequent practice for all individuals with allergies. However, unlike those who are allergic to peanuts, dairy, or another major food allergen, individuals with celiac disease (“celiac consumers”) are not offered a bold, capitalized statement clearly identifying the allergen they seek to avoid. Instead, celiac consumers are tasked with studying a list of ingredients and relying on their own ability to catch any sources of gluten. This Note considers the authority provided by Congress to the Federal Food and Drug Administration (FDA) to remedy this rash regime. Then, this Note proposes that the …

Digital Danger For People With Visual Disabilities: Online Adhesion Contracts And The Lack Of Web Accessibility Standards, Narmina Aliyev

Cardozo Law Review

Since Title III of the American with Disabilities Act was enacted, the landscape of where people with disabilities may experience discrimination has grown even larger. With the digital world expanding rapidly, people with visual disabilities face unique dangers presented by inaccessible websites and the lack of federal web accessibility standards. While courts across the nation scatter to find balance in protecting the rights of people with disabilities without overburdening businesses, Congress’s failure to legislate web accessibility standards, and the Department of Justice’s ineffective enforcement mechanisms propel misunderstanding and confusion among those affected by this legal gap. Specifically, the growing presence …

Locating Consumer Financial Regulation, Nikita Aggarwal

Cardozo Law Review

Recent advances in data-driven technology in consumer financial markets, commonly referred to as “fintech,” have resurfaced the question of whether and to what extent data, particularly consumers’ personal data, should be a locus for regulatory intervention in these markets. While innovation in fintech and the accompanying increase in the processing of personal data offer to improve the functioning of consumer financial markets, like all advances in technology, they also come with costs and risks. In 2024, in a move that favored the regulation of personal financial data per se and many of the traditional features of personal data protection regulation, …

Revisiting Reasonable Cybersecurity, Jeffrey L. Vagle

Cardozo Law Review

Prospective theories of cybersecurity liability have traveled over some well-worn paths over the past three decades, resulting in some successes, but also in at least as many cul-de-sacs and dead ends. Part of this problem can be found in the difficulty and complexity of the subject itself. Courts, legislators, and regulators all face comprehension difficulties when they attempt to fit our existing legal system around cybersecurity, often resulting in half-measures and generalized solutions that are challenging to apply to the widely different technical details behind each case. And in the background, we have a general reluctance to create legal regimes …

Data Privacy By Contract, Ifeoma Ajunwa, Austin Kamer

Cardozo Law Review

Protecting consumer privacy rights presents a particular challenge given the prevalence of data breaches. This Article notes that current law is woefully inadequate in protecting the privacy rights of consumers. Notably, the law fails in the following four areas: (1) classification of consumer data, (2) lack of a comprehensive approach, (3) after-the-fact focus, and (4) limited accountability for third parties. Although it may be impossible to eliminate all data breaches, more regulations can bolster protection without restricting technological advancements. This Article proposes a contractual approach to privacy protection for consumers. It argues that the creation of mandatory implied contractual terms …

Digital Footprints: Technology, Race, And Justice, Cassandra Jones Havard

Cardozo Law Review

Data aggregation is ubiquitous. To widen credit access, lenders now use nonconventional sources of personal technological information to measure borrower creditworthiness. Alternative data credit scoring is touted as a useful solution for borrowers with little or no credit history or “thin credit files.” The supposedly neutral algorithm provides a predictive analysis of the borrower’s ability to repay, thus allowing the borrower to obtain credit within the formal banking network.

Alternative data has the potential to expand access to financial services for underserved populations and make credit markets more competitive. Machine learning, or predictive behavioral analytics, collects and sorts the borrower’s …

Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A.E. Pottow

Cardozo Law Review

In the world of cross-border corporate insolvency, those in the know are familiar with the increasingly popular scheme of arrangement, the British quasi-reorganization procedure that allows a company to restructure some, but not all, of its debt. The typical scheme effects a corporate balance sheet reshuffling by supermajoritarian approval (and judicial “sanction”) but often leaves other debt, such as the trade, untouched. A key conceptual component of the scheme mechanism is its intentional modularity, called by some its “selectivity.” It does not require a comprehensive reckoning of all claims against a given debtor, only some. The scheme has proved popular—so …

Competing Free Speech Rights: Evaluating Compelled Disclosures On Food Packaging In A Way That Reflects Scientific Realities - Or A Lack Thereof, Rakelle Shapiro

Cardozo Law Review

No abstract provided.

Discrimination And Privacy Concerns At The Intersection Of Healthcare And Big Data, James Koenderman

Cardozo Law Review

No abstract provided.

The Paradox Of Automation As Anti-Bias Intervention, Ifeoma Ajunwa

Cardozo Law Review

A received wisdom is that automated decision-making serves as an anti-bias intervention. The conceit is that removing humans from the decision-making process will also eliminate human bias. The paradox, however, is that in some instances, automated decision-making has served to replicate and amplify bias. With a case study of the algorithmic capture of hiring as a heuristic device, this Article provides a taxonomy of problematic features associated with algorithmic decision-making as anti-bias intervention and argues that those features are at odds with the fundamental principle of equal opportunity in employment. To examine these problematic features within the context of algorithmic …

The Efficacy Of Choice-Of-Law And Forum Selection Provisions In Third-Party Litigation Funding Contracts, Robert Glenn

Cardozo Law Review

No abstract provided.

Countering Misinformation In The Health Care System: The Case For Stricter Regulations Within Health Insurance Provider Directories, Jaclyn Kleban

Cardozo Law Review

No abstract provided.

The "Natural" Response To Adjudicating Current Litigation When The Creation Of A Related Agency Rule Is Simultaneously Underway, Lauren Kostman

Cardozo Law Review

No abstract provided.

A Flood-Not A Ripple-Of Harm: Proximate Cause Under The Fair Housing Act, Justin P. Steil, Daniel Traficonte

Cardozo Law Review

Over the past decade, several city governments across the country have filed suits against banks pursuant to the Fair Housing Act seeking redress for municipal damages caused by the banks' discriminatory lending practices. Following the ruling in Bank of America Corp. v. City of Miami, lower courts are now confronting the question of where to "draw the line" of proximate causation under the Fair Housing Act, and specifically whether the harms experienced by cities as a result of banks' discriminatory lending meet the requirements of proximate causation. In suggesting a direction for lower courts, the Court in City of …

Manipulating, Fast And Slow: The Law Of Non-Verbal Market Manipulations, Shmuel I. Becher, Yuval Feldman

Cardozo Law Review

Consumers make purchasing decisions in various markets every day. Contrary to common belief, such decision-making is often not the result of deliberate analysis of information or of rational thinking. Rather, it is frequently based on feelings, sensations and intuition. Purchasing decisions are not made in a vacuum and are regularly influenced by sellers' manipulation and selling tactics.

It is well documented that people receive a substantial part of the information they possess via non-verbal communication. One of the most alarming aspects of this reality is that consumers are mostly unaware of non-verbal cues and the ways they can influence them. …

Side Effects: State Anti-Fraud Statutes, Off-Label Marketing, And The Solvable Challenge Of Causation, Isaac D. Buck

Cardozo Law Review

While the American public remains preoccupied with the lurching implementation of the Affordable Care Act, the regulation of pharmaceutical companies for their off-label marketing and promotion of drugs features a regulatory environment within the health industry that seems to be in wild flux. Following the Second Circuit's decision in United States v. Caronia, commentators and providers are unsure about the future of federal regulation in this area, with the FDA seeking to minimize the opinion and pharmaceutical companies celebrating its impact. Much of the understandably spirited reaction to the Caronia case has omitted a discussion of the relevant and …

Judicial Deregulation Of Consumer Markets, Max N. Helveston

Cardozo Law Review

The dangers posed by insufficiently regulated consumer markets are both real and monumental. While the rights of consumers expanded drastically in the mid- to late twentieth century, these protections have weakened in the new millennium. One of the forces driving this change has been the judiciary, where an anti-consumer jurisprudence has taken root. This is surprising, given the courts' history of defending individuals' commercial rights and combating unfair market practices.

Despite the significant ramifications that the removal of consumer protections has for every individual, the evolution of anti-consumerism in the courts has received scarce attention from the academy. This Article …

The Enforcers & The Great Recession, Mark Totten

Cardozo Law Review

No one played a more vital role responding to the worst economic crisis since the Great Depression than a small band of state attorneys general (AGs). Yet this story has never been told nor its implications considered. For more than a decade these AGs brought enforcement actions across the residential mortgage lending industry, reaching the origination, servicing, and securitization processes. From roughly 2000 to 2008, they targeted several of the largest subprime lenders for predatory and discriminatory lending. And they moved in the face of federal inaction - at times, even opposition. With the economic crisis everywhere visible by early …

Unauthorized Practice Of Law And Meaningful Access To The Courts: Is Law Too Important To Be Left To Lawyers?, Matthew Longobardi

Cardozo Law Review

No abstract provided.

Regulating Health And Wealth, Alena Allen

Cardozo Law Review

The SEC and FDA are two of the nation's most prominent agencies, and both are charged with protecting the public. The agencies are children of tragedy and share similar creation stories. These kindred agencies are both burdened with daunting missions and myriad challenges in executing them. Both balance protecting an unsophisticated vulgus from uncertain risk against over-regulation of sophisticated intermediaries. Yet, they have charted very different paths in trying to accomplish their missions. From the beginning, the SEC eschewed merit-regulation in favor of disclosure. In contrast, the FDA, in its quest to protect us from unsafe and ineffective drugs, grew …

Health Exchange Federalism: Striking The Balance Between State Flexibility And Consumer Protection In Aca Implementation, Sam Solomon

Cardozo Law Review

No abstract provided.

Alternative Litigation Finance And The Usury Challenge: A Multi-Factor Approach, Sheri P. Adler

Cardozo Law Review

No abstract provided.

Read Between The Lines: Why Recent Ilsa Litigation Is Bad For Business And Contravenes Congressional Intent, Joseph Einav

Cardozo Law Review

No abstract provided.

State Attorneys General's Use Of Concurrent Public Enforcement Authority In Federal Consumer Protection Laws, Amy Widman, Prentiss Cox

Cardozo Law Review

Recent scholarly and legislative interest in state enforcement of federal law has led to the need for an empirical understanding of how and when these enforcement powers are used. This Article reports on an examination of the use by state attorneys general of sixteen federal consumer protection laws that expressly allow for state enforcement. The data are sorted and analyzed by both single state actions and multistate actions over time, and by the involvement of federal agencies in the state cases. The data reveal a measured use of such powers by state attorneys general and robust state and federal cooperation …

Trademarks As A Media For False Advertising, J. Shahar Dillbary

Cardozo Law Review

This Article explores an unnoticed aspect of trademark law which in some instances may constitute a license to cheat. It shows that under certain circumstances a seller can use its own trademark to mislead its customers, free from legal sanction, in contexts where the same behavior would be sanctioned if the seller used other advertising media. The Article then explores how an alternate conception of the economic function of trademarks can be used to understand the informational value of trademarks and their advertising function. After identifying circumstances appropriate for legal intervention, the Article concludes with a proposal for a new …

Terms Subject To Change: Assent And Unconscionability In Contracts That Contemplate Amendment, Daniel Watkins

Cardozo Law Review

No abstract provided.

Acknowledgements, Michel Rosenfeld

Cardozo Law Review

No abstract provided.

True Or False: The Expanding "False By Necessary Implication" Doctrine In Lanham Act False Advertising, And How A Revitalized Puffery Defense Can Solve This Problem, Sarah Samuelson

Cardozo Law Review

No abstract provided.

Literature As An Institution, Bernhard Schlink

Cardozo Law Review

No abstract provided.