Consumer Protection Law Commons^™

Facilitating Mortgage Modification To Save Homes And Mitigate Lender Losses, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

Homeowners in financial distress or whose homes have been damaged by natural disaster may avoid foreclosure if their lender agrees to modify the loan to reduce payments. Commercial loans may also be modified to avoid foreclosure or in response to changed circumstances or changing market conditions. Although loan modifications are generally beneficial to both borrowers and lenders, barriers to modification exist. The Consumer Financial Protection Bureau (CFPB) has addressed some of the roadblocks to residential loan modifications by regulating the procedures that mortgage servicers must follow in dealing with delinquent borrowers, but the CFPB and its regulations are at risk …

Against Monetary Primacy, Yair Listokin, Rory Van Loo

Faculty Scholarship

To reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has …

Consumer Agents, Rory Van Loo

Faculty Scholarship

In the twenty-first century economy, individuals need market help that they are not getting. The technology has long existed for a browser plug-in that would filter out toxic social media content or a virtual shopping assistant that would find and even purchase the best deals online without having to go to many different websites and product pages. Yet tech platforms have used lawsuits and data control to stifle such tools. The lack of digital helpers has potentially profound consequences. Social media use is linked to alarming increases in teenage depression and anxiety. Businesses’ ability to manipulate consumers into paying higher …

Emortgage And Crypto-Mortgage In Home Finance, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

Most home mortgage loans today are documented on physical paper, but they are increasingly closed as eMortgages. The move to electronic documents is inevitable and will ultimately be a positive change for lenders and borrowers. However, additional regulation is needed to address issues raised by electronic home mortgage closings and the “crypto-mortgage,” a mortgage loan with the obligation evidenced by or tethered to a non-fungible token.

Lenders have traditionally required that home mortgage loans be evidenced by a wet-signed paper promissory note to gain the advantages and the certainty of Article 3 of the Uniform Commercial Code (UCC) governing negotiable …

The Angel Wears Prada, The Devil Buys It On The Realreal: Expanding Trademark Rights Beyond The First Sale Doctrine, Junajoy Vinoya Frianeza

Pepperdine Law Review

Luxury brands derive their goodwill from the high-class exclusivity and first-rate quality signified in their trademarks. The Trademark Act of 1946, commonly known as the Lanham Act, grants trademark holders the right to control use of their mark. However, under common law, the first sale doctrine restricts trademark protection after holders authorize the initial sale of their trademarked product. Such limitation particularly jeopardizes the luxury industry as trademark holders ultimately bear the loss of goodwill when counterfeit luxury goods enter the market due to the negligence of resellers. This Comment illustrates how blockchain authentication offers all luxury industry participants—the brands, …

Amazon's Pricing Paradox, Rory Van Loo, Nikita Aggarwal

Faculty Scholarship

Antitrust scholars have widely debated the apparent paradox of Amazon seemingly wielding monopoly power while offering low prices to consumers. A single company’s behavior thereby helped spark an intellectual renaissance as scholars debated why Amazon’s prices were so low, whether antitrust enforcers should intervene, and, eventually, how the field should be reformed for the era of large online platforms. One of the few things that all parties have agreed upon amidst those contentious conversations is that Amazon offers low prices. This Article challenges that assumption by demonstrating that Amazon charges higher prices than commonly understood. More importantly, unraveling the disconnect …

The Public Stakes Of Consumer Law: The Environment, The Economy, Health, Disinformation, And Beyond, Rory Van Loo

Faculty Scholarship

This Article shows how consumer law, a field “derided as the law of small problems,”⁴ is more accurately viewed as important for addressing large-scale societal threats. It also offers a more integrated conceptual and institutional approach to consumer law so that the field can have a better chance of fulfilling its societal potential.

Part I of this Article outlines the importance of consumer law. It maps consumer law’s connections to some of the most pressing societal threats: climate change, public health, inequality, and disinformation. Part II focuses on consumer law’s place in the legal academy and government. Currently, important …

Discrimination On Wheels: How Big Data Uses License Plate Surveillance To Put The Brakes On Disadvantaged Drivers, Nicole K. Mcconlogue

Law Faculty Scholarship

As scholarly discourse increasingly raises concerns about the negative societal effects of “fintech,” “dirty data,” and “technochauvinism,” a growing technology provides an instructive illustration of all three of these problems. Surveillance software companies are using automated license plate reader (ALPR) technology to develop predictive analytical tools. In turn, software companies market those tools to auto financers and insurers as a risk assessment input to evaluate consumers seeking to buy a car. Proponents of this technology might argue that more information about consumer travel habits will result in more accurate and individualized risk predictions, potentially increasing vehicle ownership among marginalized groups. …

Consumer Law As An Axis Of Economic Inequality, Daniel Markovits, Barak D. Richman, Rory Van Loo

Faculty Scholarship

In the standard paradigm of consumer law, a voluntary transaction is supposed to be welfare enhancing for each of the parties involved. We challenge this foundational presumption and ask to what extent many common consumer contracts are in fact extractive despite resulting from voluntary exchanges. With inequality growing throughout the world, to a degree that threatens the stability of both the economies and governments of even the wealthiest nations, we ask this fundamental question in an effort to identify root causes of inequality and to mark some guideposts for the articles that follow. Taken together, our speculations suggest that the …

Eaters, Powerless By Design, Margot J. Pollans

Michigan Law Review

Food law, including traditional food safety regulation, antihunger programs, and food system worker protections, has received increased attention in recent years as a distinct field of study. Bringing together these disparate areas of law under a single lens provides an opportunity to understand the role of law in shaping what we eat (what food is produced and where it is distributed), how much we eat, and how we think about food. The food system is rife with problems— endemic hunger, worker exploitation, massive environmental externalities, and diet-related disease. Looked at in a piecemeal fashion, elements of food law appear responsive …

Discrimination On Wheels: How Big Data Uses License Plate Surveillance To Put The Brakes On Disadvantaged Drivers, Nicole Mcconlogue

Faculty Scholarship

As scholarly discourse increasingly raises concerns about the negative societal effects of “fintech,” “dirty data,” and “technochauvinism,” a growing technology provides an instructive illustration of all three of these problems. Surveillance software companies are using automated license plate reader (ALPR) technology to develop predictive analytical tools. In turn, software companies market those tools to auto financers and insurers as a risk assessment input to evaluate consumers seeking to buy a car. Proponents of this technology might argue that more in-formation about consumer travel habits will result in more accurate and individualized risk predictions, potentially increasing vehicle ownership among marginalized groups. …

Data Privacy Issues In West Virginia: An Overview, Jena Martin

West Virginia Law Review Online

This essay is about data privacy in West Virginia. However, many of the issues that affect West Virginians also affect people around the country and the world. As such, it’s also an essay about the state of data privacy today and the current challenges that affect people nationally and globally. Part one provides a general overview of the current issues involving data privacy. Part two discusses the current legislative framework and the larger gaps in data privacy law. Part three summarizes the key takeaways based on responses to a survey and focus groups sessions conducted in West Virginia in 2019. …

Contract Creep, Tal Kastner, Ethan J. Leib

Scholarly Works

Scholars and judges think they can address the multiple purposes and values of contract law by developing different doctrinal regimes for different transaction types. They think if we develop one track of contract doctrine for sophisticated parties and another for consumers, we can build a better world of contract: protecting private ordering for sophisticated parties and protecting consumers’ needs all at once. Given the growing enthusiasm for laying down these separate tracks and developing their infrastructures, this Article brings a necessary reality check to this endeavor by highlighting for scholars and judges how doctrine in contract law functions in fact: …

The Content Of Consumer Law Classes Iii, Jeff Sovern

Faculty Publications

This paper reports on a 2018 survey of law professors teaching consumer protection, and follows up on similar 2010 and 2008 surveys, which appeared in Jeff Sovern, The Content of Consumer Law Classes II, 14 J. Consumer & Commercial L. 16 (No. 1 2010), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1657624 and Jeff Sovern, The Content of Consumer Law Classes, 12 J. Consumer & Commercial L. 48 (No. 1 2008), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1139894, respectively. As reported in previous surveys, professors teaching consumer law report considerable variation in coverage. Professors want to cover relatively current subjects within their courses, such as FinTech, credit invisibles, and mortgage …

Consumer Law Immersion, Kevin M. Mcdonald, Karl Hochkammer, Steven Wernikoff

Global Business Law Review

As part of Washington University School of Law’s (WashULaw) Online Master of Legal Studies (MLS) program, students attend optional weekend immersion courses at the law school in St. Louis in both the spring and fall. We recently taught a course on consumer law over the spring 2018 weekend session held on March 23-25, 2018. In attendance were twenty-two students, most of whom were enrolled in the MLS program. Several were foreign lawyers and one was an LL.M. student. This article summarizes our three-day experience and concludes with our key learnings that incorporate feedback we received from students both during and …

Trumping The Ninth Circuit: How The 45th President’S Supreme Court Appointments Will Strengthen The Already Strong Federal Policy Favoring Arbitration, Eric Schleich

Arbitration Law Review (2009 - Present)

No abstract provided.

Rethinking Criminal Contempt In The Bankruptcy Courts, John A. E. Pottow, Jason S. Levin

Law & Economics Working Papers

A surprising number of courts believe that bankruptcy judges lack authority to impose criminal contempt sanctions. We attempt to rectify this misunderstanding with a march through the historical treatment of contempt-like powers in bankruptcy, the painful statutory history of the 1978 Bankruptcy Code (including the exciting history of likely repealed 28 U.S.C. § 1481), and the various apposite rules of procedure. (Fans of the All Writs Act will delight in its inclusion.) But the principal service we offer to the bankruptcy community is dismantling the ubiquitous and persistent belief that there is some form of constitutional infirmity with "mere" bankruptcy …

Are Validation Notices Valid? An Empirical Evaluation Of Consumer Understanding Of Debt Collection Validation Notices, Jeff Sovern, Kate E. Walton

Faculty Publications

A principal protection against the collection of consumer debts that are not actually owed is the Fair Debt Collection Practices Act’s (FDCPA) validation notice, which obliges debt collectors demanding payment to notify consumers of their rights to dispute debts and request verification, among other things. This Article reports on the first public study of whether consumers understand the notices or what they take away from them. For nearly four decades, courts have decided whether validation notices satisfied the FDCPA without ever knowing when or if consumers understand the notices. This Article attempts to remedy that problem.

Collectors who prefer that …

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, …

The Evolution And Decline Of The Effective-Vindication Doctrine In U.S. Arbitration Law, Okezie Chukwumerije

Pepperdine Dispute Resolution Law Journal

This article offers information on the history, significance and role of the effective-vindication doctrine in U.S. arbitration law in promoting access to justice. It analyzes the significance of broad policy implications regarding the interpretation of the Federal Arbitration Act (FAA) by the Court facilitating the arbitration of commercial disputes and protecting the statutory rights of consumers in the context of the U.S. Supreme Court's decision in Green Tree Financial Corp. v. Randolph.

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 …

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Faculty Scholarship

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Defending Junk-Debt-Buyer Lawsuits, Peter A. Holland

Faculty Scholarship

Junk debt buyer lawsuits have overwhelmed the courts all across the United States. These lawsuits wreak havoc on consumers and their families. Often overlooked is the fact that judgments against consumers which are based on junk debt are part of a zero sum game, where every bogus judgment deprives a legitimate creditor of the chance to get paid from scarce resources. Thus, the legitimate creditor to whom money is owed is materially harmed by the junk debt buyer who extracts money based on an illegitimate claim, or who causes someone to declare bankruptcy. Providing representation to this otherwise unrepresented population …

Judicial Policing Of Consumer Arbitration , Edward A. Dauer

Pepperdine Dispute Resolution Law Journal

Adhesive consumer arbitration agreements pose questions that go beyond the problems of adhesion contracting generally. This essay describes why standard-form consumer arbitration requirements may be particularly troublesome. Despite its superficial neutrality, arbitration between individual consumers and business entities may be systematically more favorable to the business entities. The rules of arbitration law, however, inhibit effective judicial policing of the consequences of those inequalities. The federal sources of arbitration law further diminish the ability of state-based contract law to police the more subtle abuses. The result is a particularly difficult jurisprudential problem with a specially weakened legal solution. This essay offers, …

The One Hundred Billion Dollar Problem In Small Claims Court: Robo-Signing And Lack Of Proof In Debt Buyer Cases, Peter A. Holland

Faculty Scholarship

Recent years have seen the rise of a new industry which has clogged the dockets of small claims courts throughout the country. It is known as the "debt buyer" industry. Members of this $100 billion per year industry exist for no reason other than to purchase consumer debt which others have already deemed uncollectable, and then try to succeed in collecting where others have failed. Debt buyers pay pennies on the dollar for this charged off debt, and then seek to collect, through hundreds of thousands of lawsuits, the full face value of the debt. The emergence and vitality of …

The Content Of Consumer Law Classes Ii, Jeff Sovern

Faculty Publications

This paper reports on a 2010 survey of law professors teaching consumer protection, and follows up on a similar 2008 survey, which appeared in Jeff Sovern, The Content of Consumer Law Classes, 12 J. CONSUMER & COMMERCIAL L. 48 (No. 1 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1139894. The 2010 survey found more uniformity in topic selection than the 2008 survey. All thirteen professors who taught survey courses reported that they taught common law fraud, UDAP statutes, the Truth in Lending Act, and the Fair Credit Reporting Act, while all but one covered the Fair Debt Collection Practices Act, the Federal Trade …

The Content Of Consumer Law Classes, Jeff Sovern

Faculty Publications

Attendees at the University of Houston Law Center Conference titled Teaching Consumer Law: The Who, What, Where, Why, When and How were surveyed to determine what topics they covered in consumer law classes. Twenty-five responses were received, representing fourteen survey classes, five clinics, and six miscellaneous responses. The responses indicated considerable diversity in the topics covered. No topic was covered by more than 21 professors and each of the 32 topics listed on the survey instrument was discussed by at least four professors. Under the circumstances, it seems difficult to claim that consumer protection classes have a canon agreed upon …

Consumer Law As Tax Alternative, Rory Van Loo

Faculty Scholarship

Policymakers and scholars have in distributional conversations traditionally ignored consumer laws. Tax law dominates distributional conversations partly because legal rules are seen as less efficient and partly because consumer law research speaks to narrow and siloed contexts. Even millions of dollars in reduced credit card fees seem trivial compared to the trillion-dollar growth in income inequality that has sparked concern in recent decades. This Article is the first to synthesize the fragmented studies quantifying inefficiently higher consumer prices across diverse markets — called overcharge. These studies indicate that laws reducing overcharge could make a substantial reduction in inequality. Moreover, this …

Kentucky Consumer Law Conference, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the Kentucky Consumer Law Conference held by UK/CLE in September 2004

Standard Terms Contracting In The Global Electronic Age: European Alternatives, James Maxeiner

All Faculty Scholarship

This article examines American, European Union and German standard terms laws from an American perspective. It considers not only current law, but significant aspects of the development of these bodies of law. It sets out general issues involved in standard terms laws and summarizes American law. It notes the origin of American concepts in Europe and examines standard terms in the struggle over revision of the Uniform Commercial Code. It looks at the law of the European Union and its origin in the consumer movement. It considers in detail the law of one Member State as an example, that of …