Consumer Protection Law Commons^™

Smart Contracts And The Illusion Of Automated Enforcement, Danielle D'Onfro

Scholarship@WashULaw

This symposium essay explores the barriers to deploying smart contracts in the consumer finance space: the humans themselves, existing consumer protection laws, and the other businesses who have financial contracts with consumers but that cannot deploy smart contracts. These three barriers render perfectly automated enforcement all but impossible. Nevertheless, there may be room for modifiable smart contracts in the consumer financial space although these contracts may be only marginally more efficient than traditional contracts.

Fifty Years After The Consumer Credit Protection Act: The High Price Of Wage Garnishment, Faith Mullen

Mitchell Hamline Law Review

No abstract provided.

Broken Promises: How Debt-Financed Higher Education Rewrote America’S Social Contract And Fueled A Quiet Crisis, Seth Frotman

Utah Law Review

The U.S. student loan market stands at $1.5 trillion—the second largest consumer debt market in the country. Despite the vast size of this market and the far-reaching spillover effects of student loan debt on individuals and communities, the American higher education system increasingly relies on debt financing as the predominant mechanism by which American families pay for college. Furthermore, student loans still lack a comprehensive twenty-first century consumer protection infrastructure. Researchers and policymakers are only now beginning to acknowledge the threat runaway student debt poses to the American social contract - even as millions of borrowers across the country struggle …

Time Bandits: The Seventh Circuit Gets It Wrong By Allowing Debt Purchasers To Escape Fdcpa Liability For Filing Time-Barred Proofs Of Claim In Chapter 13 Bankruptcies, Jeffrey Michalik

Chicago-Kent Law Review

Debt purchasers can use debtors’ bankruptcies to profit from stale, otherwise unenforceable debt. Although state statutes of limitations bar legal enforcement of this debt, predictable breakdowns of the bankruptcy process mean that the debtor might be forced to pay anyway. Courts have determined that this scheme does not violate the Fair Debt Collection Practices Act, allowing debt purchasers to continue this scheme without repercussion.

Consumer Protection In The Age Of Connected Everything, Terrell Mcsweeny

NYLS Law Review

No abstract provided.

The Risk Of An Anti-Consumer Cfpb, Christopher L. Peterson

Utah Law Faculty Scholarship

The risks of an anti-consumer CFPB go beyond just those cases currently under investigation. America has a massive financial sector that is constantly evolving and reinventing itself. This striving for innovation and efficiency is, of course, one of the American financial system’s great advantages. Nevertheless, the Sun-Tzu-worshipping, MBA-wielding financiers that use boilerplate consumer credit contracts as weapons in their endless market-share battles are paying attention to what the agency is doing—and more importantly, to what it is not doing. A chilled CFPB law enforcement program will embolden the consumer finance industry to roll out more misleading advertising, more deceptive sales …

Calling On The Cfpb For Help: Telling Stories And Consumer Protection, Pamela Foohey

Scholarly Works

Since it began operating in 2011, the Consumer Financial Protection Bureau (CFPB) has handled more than a million complaints regarding consumer financial product and services. Beginning in June 2015, the CFPB began publishing consumers’ narratives submitted with their complaints. This Article analyses a random sample of 5,000 of these narratives to assess how people engage with the complaint mechanism in light of the CFPB’s role in processing complaints. I find that people predominately use the complaint function for two distinct purposes: to express their anger and frustration about companies’ practices, or to express sadness and fear about how companies’ practices …

Determining The Deception Of Sexual Orientation Change Efforts, John M. Satira

William & Mary Law Review

No abstract provided.

Individual Licensing Models And Consumer Protection, Lucie Guibault

Articles, Book Chapters, & Popular Press

Copyright law is not primarily directed at consumers. Their interests are therefore only marginally accounted for, as the copyright rules exempt specific uses of works from the right holder’s control. This chapter examines the impact of digital technology on the position of consumers of licensed copyrighted content. While ownership of the physical embodiment of a work does not entail the ownership of the rights in the work, how does copyright law deal with ‘disembodied’ works? Whereas digital content is now commonly distributed on the basis of individual licensing schemes, what does it mean for consumers? Do they have a claim …

Taking Trust Seriously In Privacy Law, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Trust is beautiful. The willingness to accept vulnerability to the actions of others is the essential ingredient for friendship, commerce, transportation, and virtually every other activity that involves other people. It allows us to build things, and it allows us to grow. Trust is everywhere, but particularly at the core of the information relationships that have come to characterize our modern, digital lives. Relationships between people and their ISPs, social networks, and hired professionals are typically understood in terms of privacy. But the way we have talked about privacy has a pessimism problem – privacy is conceptualized in negative terms, …

Unfair And Deceptive Robots, Woodrow Hartzog

Maryland Law Review

No abstract provided.

Reforming The Regulation Of Community, Tanya D. Marsh

Indiana Law Journal

The regulatory framework for financial institutions in the United States imposes significant costs on community banks without providing benefits to consumers or the economy that justify those costs. The Dodd-Frank Wall Street Reform and Consumer Protection Act builds on decades of “one-size-fits-all” regulation of financial institutions, an ill-conceived regulatory strategy that puts community banks at a competitive disadvantage as compared with their larger, more complex competitors. The imposition of regulatory burdens on community banks without attendant benefits ultimately harms both consumers and the economy by (1) forcing community banks to consolidate or go out of business, furthering the concentration of …

A Comprehensive Economic And Legal Analysis Of Tying Arrangements, Guy Sagi

Seattle University Law Review

The law of tying arrangements as it stands does not correspond with modern economic analysis. Therefore, and because tying arrangements are so widely common, the law is expected to change and extensive academic writing is currently attempting to guide its way. In tying arrangements, monopolistic firms coerce consumers to buy additional products or services beyond what they intended to purchase. This pressure can be applied because a consumer in a monopolistic market does not have the alternative to buy the product or service from a competing firm. In the absence of such choice, the monopolistic firm can allegedly force the …

Crimes And Medical Care On Board Cruise Ships: Do The Statistics Fit The Crimes?, Leticia M. Diaz, Barry H. Dubner, Nicole Mckee

Faculty Scholarship

No abstract provided.

Watching The Watchers, Neil M. Richards

Scholarship@WashULaw

In this essay from Wired Magazine (UK)'s special edition, The Wired World in 2014, Prof. Richards argues that sousveillance–watching the watchers–is an important development that will be on the rise in 2014.

Costing A Pretty Penny: Online Penny Auctions Revive The Pestilence Of Unregulated Lotteries, David R. Konkel

Seattle University Law Review

Penny auctions, an online phenomenon imported from Europe, operate by the hundreds in the United States without meaningful oversight from consumer protection agencies. In a penny auction, consumers compete for items one penny at a time. To date, no significant inquiry, either academic or practical, into the legitimacy of the penny auction has occurred. Although marketed as auctions, online penny auctions may actually qualify as lotteries. Unlike the multifarious and confusing definitions of gambling, the long-accepted definition of a lottery consists of three elements: prize, consideration, and chance. If a penny auction satisfies this definition then, under well-established case law …

Three Paradoxes Of Big Data, Neil M. Richards, Jonathan H. King

Scholarship@WashULaw

Big data is all the rage. Its proponents tout the use of sophisticated analytics to mine large data sets for insight as the solution to many of our society’s problems. These big data evangelists insist that data-driven decision making can now give us better predictions in areas ranging from college admissions to dating to hiring to medicine to national security and crime prevention. But much of the rhetoric of big data contains no meaningful analysis of its potential perils, only the promise. We don’t deny that big data holds substantial potential for the future, and that large dataset analysis has …

Consumer Watchdog: The Fcc’S Proposed Rulemaking To Help Consumers Avoid Bill Shock, Cameron Robinson

Federal Communications Law Journal

This Note discusses the proposed rulemaking by the FCC in order to empower consumers against "bill shock." Bill shock is described as what a consumer experiences when he or she receives a bill for his or her cellular phone that is much higher than expected, usually on account of roaming charges. This Note will argue in favor of rulemaking by the FCC and explain how the consumer will be empowered against the confusion of the current system.

Burning Down The House Or Simply Rolling The Dice: A Comment On Section 621 Of The Dodd-Frank Act And Recommendation For Its Implementation, Joshua R. Rosenthal

Fordham Journal of Corporate & Financial Law

Section 621 of the Dodd-Frank Wall Street Reform and Consumer Protection Act modifies the Securities Act of 1933 to prohibit the underwriter, placement agent, initial purchaser, or sponsor, or any affiliate or subsidiary of any such entity of an asset-backed financial product from betting against that very product for one year after the product’s initial sale. The rule prohibits anyone who structures or sells an asset-backed security or a product composed of asset-backed securities from going short, in the specified timeframe, on what they have sold, and labels such transactions as presenting material conflicts of interest. This Comment discusses traces …

Symposium On Commercial Speech And Public Health, Jonathan H. Adler

Faculty Publications

Americans have access to more health-related information today than ever before. Consumers are bombarded with medical messages and flooded with health-based claims. Television and magazine advertisements inform consumers about everything from insomnia and erectile dysfunction to the importance of dietary fiber and the allegedly wondrous properties of pomegranates. Product labels and promotions provide more food for thought about fat, sodium, and carbohydrates; nutritional supplement makers further supplement consumer nutritional information. Were that not enough, the internet provides access to still more data (and opinion), much of it of questionable provenance and reliability.

Viewing Unconscionability Through A Market Lens, David Gilo, Ariel Porat

William & Mary Law Review

This Article calls for a move to a new phase in courts’ attitudes toward consumer contracts. Currently, courts applying the unconscionability doctrine to consumer contracts focus on the characteristics of the parties and the transaction. We suggest that rather than examining each consumer contract in isolation, courts should inquire whether there is competition, or potential competition, over contracts in the supplier’s market. As we show, competition over contracts is different from competition over products or services. In order to assess the degree of competition, or potential competition, over contracts, courts should look at the particular features of the supplier’s market …

Renting The Good Life, Jim Hawkins

William & Mary Law Review

Academic literature and court decisions are replete with calls to ban or severely inhibit the rent-to-own industry. The argument is simple enough: Rent-to-own firms charge exorbitant prices to the most needy and vulnerable segments of society. The case for burdensome regulations, however, is much more difficult to make out than past scholarship has admitted. For the most part, academics have proceeded directly to proposing specific regulations for the industry without first carefully analyzing the rent-to-own business or the reasons for imposing drastic regulations. This Article examines the theoretical justifications for regulating the rent-to-own industry against the backdrop of interviews I …

Rolling Over Borrowers: Preventing Excessive Refinancing And Other Necessary Changes In The Payday Loan Industry, Richard J. Thomas

William & Mary Law Review

No abstract provided.

Private Copyright: Digital Rights Management Systems And The Consumer, Victor Nicholas Knipe

ExpressO

Digital Rights Managements (DRM) systems impact the digital content and software marketplace on several levels. The issues include copyright law, contract law, privacy, antitrust, and consumer protection. This paper examines how DRM systems affect the consumer and what changes can be made to bring about a more sensible and transparent market in the United States.

Are Credit Card Late Fees Unconstitutional?, Seana Valentine Shiffrin

William & Mary Bill of Rights Journal

State Farm Mutual Automobile Insurance Co. v. Campbell articulated serious and specific constitutional constraints upon the imposition of punitive damages. Justice Kennedy's majority opinion announced that, apart from exceptional cases, punitive damages should not exceed nine times the amount of the actual losses sustained by the plaintiff and should usually be far lower. Indeed, the opinion observed, they typically should be much lower, citing double, treble, and quadruple multipliers as "instructive" examples. Some commentators have worried that the decision could adversely affect consumer interests by offering insulation for tortious behavior that is difficult to detect or litigate. This Article will …

Toward A New Model Of Consumer Protection: The Problem Of Inflated Transaction Costs, Jeff Sovern

William & Mary Law Review

Contrary to the predictions of conventional economic theory, firms often benefit by increasing consumer transaction costs. Firms do so by, for example, obscuring contract terms in a variety of ways, such as providing them after the contract is agreed to, enclosing them with other more interesting information, using small print, and omitting important terms such as arbitration fees from the written contract. Firms also benefit by taking advantage of predictable consumer behaviors, such as the tendency of consumers not to seek rebates, to overload when provided with too much information, and to ignore dull information when overshadowed by vivid information. …

Towards A Basal Tenth Amendment: A Riposte To National Bank Preemption Of State Consumer Protection Laws, Keith R. Fisher

ExpressO

Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but to their state-chartered operating subsidiaries. These regulations threaten to disrupt state efforts to combat predatory lending and other abusive practices and to interfere with a state’s sovereign authority over corporations chartered under its laws. Yet federal courts faced with challenges to these initiatives have failed to devote any substantial analysis to claims based on the Tenth Amendment. The problem with such claims is the absence …

Wandering Along The Road To Competition And Convergence- The Changing Cmrs Roadmap, Leonard J. Kennedy, Heather A. Purcell

Federal Communications Law Journal

In this timely follow-up piece to a 1998 piece entitled A Federal Regulatory Framework that is "Hog Tight, Horse High, and Bull Strong, " the Authors of this Article revisit the progress of American commercial mobile radio services ("CMRS") proliferation and regulation. The piece expresses the concern that balkanization has continued to plague wireless regulation in the United States, as misguided legal analyses and state regulation further hinder wireless development across the nation. While the European Union has witnessed unprecedented growth in this sector, conflicting court and FCC decisions and continued federal, state, and local burdens on CMRS have placed …

Pharmaceutical Dispensing In The "Wild West": Advancing Health Care And Protecting Consumers Through The Regulation Of Online Pharmacies, Sean P. Haney

William & Mary Law Review

No abstract provided.

Anticonsumer Effects Of Union Mergers: An Antiitrust Solution, Robert H. Lande, Richard O. Zerbe Jr.

All Faculty Scholarship

Should unions and corporations be treated identically under the antitrust laws? This article explores this provocative question by examining whether union mergers should be subject to the antitrust laws. Currently unions and corporations are treated very differently. Large corporate mergers are blocked if their effect "may be substantially to lessen competition, or to tend to create a monopoly". They are permitted if they are likely to be benign, procompetitive, or proconsumer.

Collective bargaining, by contrast, enjoys a broad exemption from the antitrust laws. If they follow appropriate procedures, unions - even unions that, when taken together, cover all workers within …