Consumer Protection Law Commons^™

Recourse For Defects And Deception: A Multifactor Duty Test For Online Platforms, Edward J. Janger, Aaron D. Twerski

Marquette Law Review

Amazon is the world’s largest platform for consumer retail sales. It plays a crucial role in matching buyers and sellers and consummating their transactions. It has, for the most part, escaped tort liability for harm caused by defective products sold by third-party vendors on its website. The majority of cases have held Amazon immune from suit because Amazon did not take title to the goods. It was not formally a seller despite the fact that it controls every aspect of the sale from receiving the order, (often) warehousing and shipping the goods, and collecting payment. This formal approach creates a …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

Seattle University Law Review

The information we gathered during 2021–2023 shows that critical faculty and other academic resources are present throughout most of U.S. legal academia. Counting only full-time faculty, our limited research identified 778 contacts in 200 schools equating to nearly four contacts on average per school. But no organized critical “core” had coalesced within legal academia or, more broadly, throughout higher education expressly dedicated to defending and advancing critical knowledge and its production up to now. And yet, as the 2021–2022 formation of the Critical (Legal) Collective (“CLC”) outlined below demonstrates, many academics sense or acknowledge the need for greater cohesion among …

Sffa V. Harvard College: Closing The Doors Of Equality In Education, Ediberto Roman

Seattle University Law Review

The United States Supreme Court’s recent combined decision ending affirmative action in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina was hailed in conservative circles as the beginning of “the long road” towards racial equality. Others declared that “the opinion may begin the restoration of our nation’s constitutional colorblind legal covenant.” Another writer pronounced, “Affirmative action perpetuated racial discrimination. Its end is a huge step forward.” A Washington-based opinion page even declared: “[T]he demise of race-based affirmative action should inspire renewed commitment to the ideal of equal opportunity in America.” Despite …

Religious Freedom And Diversity Missions: Insights From Jesuit Law Deans, Anthony E. Varona, Michèle Alexandre, Michael J. Kaufman, Madeleine M. Landrieu

Seattle University Law Review

This Article is a transcript of a panel moderated by Anthony E. Varona, Dean of Seattle University School of Law. During the panel, Jesuit and religious law school deans discussed what law schools with religious missions have to add to the conversation around SFFA and the continuing role of affirmative action in higher education.

The Class Of Injuries Test: A Unifying Proposal To Determining Duty, Proximate Cause, And Superseding Cause In Negligence Claims, Judge Leonard J. Feldman, Julia Doherty

Seattle University Law Review

While there seems to be universal agreement that liability in tort cannot be unlimited, there is widespread disagreement regarding the various tests that courts utilize to limit such liability. We assume here that breach can be proven: the defendant failed to conduct themself in accordance with the salient standard of conduct (for example, failure to exercise reasonable care under all the circumstances). In the ensuing litigation, the court and jury are asked to decide several issues that each limit liability for negligence. Here, we focus on three oft-debated issues: duty, proximate cause, and superseding cause. The tests for each are …

Ai, New Technologies, And Corporate Governance: Three Phenomena, Martin Petrin

Seattle University Law Review

Artificial intelligence (AI) and other new technologies are increasingly influencing the operations, business models, and structures of companies. This Article focuses on three emerging phenomena that impact significant aspects of corporate governance and regulation: (1) perforation and blurring of firm boundaries through the ubiquitous use of externally provided AI services; (2) businesses engaging in strategic access and leveraging of critical resources held by third parties without owning them; and (3) the unusual hybrid role of online platforms between market facilitators and markets themselves. The Article explores how these phenomena challenge traditional views of firms as separate units, with technology leading …

A Meaningful Life: The Future Of Juvenile Justice In Washington After Anderson, Samuel Coren

Seattle University Law Review

Until 2022, Washington’s line of juvenile sentencing jurisprudence gave every indication of continuing along the course set by Miller v. Alabama, as Washington courts recognized that “children are different” and should not be subjected to the harshest punishments available in the criminal legal system. State v. Anderson marked a stark diversion from this course. In upholding the constitutionality of a de facto life sentence for a juvenile, the Washington Supreme Court all but rejected the well-established scientific consensus surrounding juvenile brain development and implicit racial bias. Whether this decision reflects a minor aberration or a broader trend in the court’s …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

A Blueprint To Reclaim Legal Education From External Rankers, Scott Rempell

Seattle University Law Review

The U.S. News & World Report (U.S. News) law school rankings have impacted the perceptions and behaviors of everyone in the rankings ecosystem for decades. Commentators have almost universally condemned these ordinal rankings, yet they continue to influence the legal education market, often in highly detrimental ways.

The influence of these rankings stems from legitimate market demands, for reasons that the psychology of choice literature makes clear. People want (or need) to efficiently acquire and digest information that could help them make consequential decisions. At a time when consumers of law school information did not have such choice-making assistance, U.S. …

Real-World Consequences For Online Actions: The Case For Expanding Employee Harassment Protection Via Employers’ Rights Of Action, Alexander Barnes

Seattle University Law Review

This Note argues for expanding employers’ access to legal remedies that allow them to recoup the costs of protecting their employees from swatting, doxing, and other online harassment arising from their employees’ professional activity. Part I provides a brief description and history of the online harassment problem and its potentially deadly dangers. Part II describes employers’ legal responsibility to take action to protect their employees from harassment aimed at their employees within the scope of their employment. Part III explores common legal remedies that are currently available to employers, using the state of Washington as an example. Part III also …

Foreseeability And Duty In Washington Negligence Law: Leaving The Road Less Traveled By, Leo Linder

Seattle University Law Review

Washington negligence law is a confusing labyrinth of foreseeability that not even Ariadne’s string could guide plaintiffs out of. Foreseeability is implicated in four distinct analyses, several of which overlap considerably. Doctrines that were once questions of law are now questions of fact, and vice versa. Something needs to change.

Washington has taken the novel approach of bifurcating the duty element into two parts—duty’s mere existence, which is a question of law for the court to determine; and duty’s scope, which is a question of fact handed off to the jury to determine. Foreseeability impacts both of these assessments, but …

On The Basis Of Pink: Finding A Balanced Approach To Addressing Gender-Based Price Discrimination On A National Level, Emily L. Brown

Oklahoma Law Review

No abstract provided.

Market Testing Boilerplate, Kelli Alces Williams

Scholarly Publications

Boilerplate contract terms are regularly enforced against consumers who do not like them and would not have selected them if given a choice. But there is no choice. Such terms are offered on a take it or leave it basis to consumers who are either unaware of the terms until a problem arises or hope those terms will never have to be invoked. The lack of meaningful choice is justified by arguments that consumers will avoid contracts that contain harmful terms, so market constraints will prevent businesses from offering socially inefficient terms. If consumers really had a problem with certain …

The Fourth Estate's Estate, Ramsi Woodcock

Law Faculty Scholarly Articles

The news industry in the United States faces a funding crisis because the tech giants, particularly Google and Facebook, have acceded to the advertising monopolies once enjoyed by the newspaper industry itself. Breakup of these monopolies is unlikely to restore the news industry’s profits, however, because search and social media will remain better ad distribution channels than the news whether search and social media are competitive or monopolized. A better solution to the funding crisis would be for government to divide the advertising distribution market, reallocating to the news industry some of the ad impressions taken from it by the …

Table Of Contents, Loyola Consumer Law Review

Loyola Consumer Law Review

No abstract provided.

Potential Economic Impacts Of The Credit Card Competition Act Of 2023, Ling Ling Ang, Alan Grant, Peter Traber

Loyola Consumer Law Review

We consider the potential economic impacts of the Credit Card Competition Act of 2023 ("CCCA"), drawing on economic literature on two-sided markets and effects of previous U.S. regulatory policy associated with payment cards. Implementation of the CCCA shifts network routing choice from the consumer side of the market to the merchant side of the market. While this would likely decrease interchange fees, an interchange fee decrease only reflects a shift in the balance of costs from the merchant side to the consumer side not a decrease in the total price of processing a credit card transaction. A reduction in interchange …

Consumer Impacts Of California's Climate Agenda: Vehicle Electrification Agreements May Violate Antitrust Law, Jessica D. Quinn

Loyola Consumer Law Review

No abstract provided.

Student Loan Debt: The Long-Term Economic Consequences, Judith Fox

Loyola Consumer Law Review

There are nearly 1.6 trillion dollars in outstanding federal student loans and more than 59 billion in private loans. Prior to the COVID-19 pandemic student loan debt was being called a crisis. Student loan debt topped all consumer debt except mortgages. Delinquencies were rising and debtors, especially millennials, were feeling crushed under their impact. Then the COVID-19 pandemic struck, and student loan payments were put on hold, providing the conditions to examine the economic effects of student loan payments on student borrowers. This paper explores some of the effects of the student-loan debt burden has had on our economy and …

A Historical Perspective On Student Loan Cancellation, John Patrick Hunt

Loyola Consumer Law Review

No abstract provided.

Save Public Service Loan Forgiveness: A Proposal For Reform, Anthony A. Smith

Loyola Consumer Law Review

No abstract provided.

Too Big To Fly: Rethinking Antitrust In The Airline Industry After United States V.Jetblue Airways Corporation, Kathleen Driscoll

Loyola Consumer Law Review

Over the last few years, the United States Government has amped up its antitrust enforcement, suing to block various multibillion dollar deals between big corporations across different industries. Last year, the Justice Department brought suit to prevent a merger between Jet Blue Airways and Spirit Airlines, the sixth and seventh largest airlines in the United States, respectively. The Justice Department argued that this consolidation of the airline industry would harm consumers because it would drive costs up and limit choices. The U.S. District Court of Massachusetts permanently enjoined the merger, and Jet Blue and Spirit have since called off the …

Assessing Design Defectiveness In The Digital Age, Elizabeth Petras

Emory Law Journal

Modern technology is advancing at an unprecedented rate, and further advancements show no signs of slowing down. As technology rapidly evolves, so does the complexity of product designs. However, as these advancements occur, the tests employed by courts to determine whether a product design is defective remain largely unchanged. There are two main tests used by jurisdictions to determine whether a design is defective. The first is the consumer expectations test, which provides that when a product used in a reasonably foreseeable manner is more dangerous than an ordinary consumer would expect it to be, it is defective. The second …