Consumer Protection Law Commons^™

Exit And Voice In American Health Care, Marc A. Rodwin

University of Michigan Journal of Law Reform

Until the 1960s, the main way for patients to affect health care institutions was by choosing their doctors or hospitals or leaving those with which they were dissatisfied. They had few avenues to exert their voice to bring about change through complaints, politics, or other means. The balance between exit and voice shifted in the 1960s, as the women's health and disability rights movements brought about change by increased use of political voice and, to a lesser degree, by exit. With the growth of managed care since the 1980s, enrolled individuals have had fewer opportunities for exit and greater potential …

Estimation Of Revealed Probabilities And Utility Functions For Product Safety Decisions, W. Kip Viscusi, William N. Evans

Vanderbilt Law School Faculty Publications

Using survey data on consumer product purchases, this paper introduces an approach to estimate jointly individual utility functions and risk perceptions implied by their decisions. The behavioral risk beliefs reflected in consumers risky decisions differ from the stated probabilities given to them in the survey. These results are not consistent with a Bayesian learning model in which the information respondents utilize is restricted to what the survey presents. The results are, however, potentially consistent with models in which prior risk information is influential or models in which people do not act in a fully rational manner.

Constructing A Roof Before The Foundation Is Prepared: The Restatement (Third) Of Torts: Products Liability, Section 2(B) Design Defect, Frank J. Vandall

University of Michigan Journal of Law Reform

The Restatement (Third) of Torts: Products Liability section 2(b) is a wish list from manufacturing America. It returns products liability law to something more restrictive than negligence. What is new from the Reporters is that their proposal is written on a clean sheet of paper. Messy and awkward concepts such as precedent, policy, and case accuracy have been brushed aside for the purpose of tort reform. There has been almost no attempt to evaluate strict liability precedent or the policies underlying previous cases and the Restatement (Second) section 402A. Section 2b (the roof) has been drafted with little consideration of …

Restating The Law: The Dilemmas Of Products Liability, Robert L. Rabin

University of Michigan Journal of Law Reform

Tracing products liability law from its origins to present day developments, Professor Rabin discusses the long-standing presence of interwoven strands of contract and tort ideology, as well as the perennial tensions between strict liability and negligence. These themes are evident both in the distinctly influential California case law and in the two Restatement efforts to systematize the doctrine that has emerged nationally. Rabin identifies the manner in which foundational ideological precepts of consumer expectations and enterprise liability have contributed to a continuously dynamic, if often unsettled, debate over the appropriate regime for resolving product injury claims.

An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Chris Sagers

Law Faculty Articles and Essays

This Note contends that consumers should have a private damages action under section 10. Part I discusses the method federal courts currently employ to determine whether a private cause of action should be recognized under a given federal statute. Part II applies this standard to section 10, and it argues that, although the federal courts currently exhibit a fairly restrictive attitude toward implication of remedies, an action should be implied under section 10 because the Real Estate Settlement Procedures Act of 1974 (RESPA) was enacted at a time when Congress relied on a more permissive judicial implication doctrine. Finally, Part …

Consumer Choice: The Practical Reason For Both Antitrust And Consumer Protection Law, Neil W. Averitt, Robert H. Lande

All Faculty Scholarship

This article is about the relationship between antitrust and consumer protection law. Its purpose is to define each area of law, to delineate the boundary between them, to show how they interact with each other, and to show how they ultimately support one another as the two components of a single overarching unity. That overarching unity is consumer choice. Antitrust and consumer protection law share a common purpose in that both are intended to facilitate the exercise of consumer sovereignty or effective consumer choice. Such consumer choice exists when two fundamental conditions are present: (l) there must be a range …

Ucc Proposals Concerning Consumer Transactions, James J. White

Other Publications

Professor Grant Gilmore once suggested that farmers would like a two section law. Section one would state "It shall be against the law to refuse to lend money to a farmer." Section two would state "It shall be against the law to collect a debt from a farmer." In a similar vein one might state the iron rule of consumer law, namely "No right that has ever been granted to a consumer, however ill considered and unjustified, may thereafter be withdrawn." Believing that some of the proposals for consumer protection that have been added in Revised Article 9 are not …

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 …

Proposed Revisions Concerning Products Liability Caveat Vendor, James J. White

Other Publications

Both industrial sellers and consumer sellers should look at proposals for revision of the sections relating to warranty liability in Article 2. Particularly important are the sections on warranty, express and implied, on third-party liability, disclaimers and limitation of remedy, notice, and statute of limitations. Using current law as a baseline, revised Article 2 increases sellers' liability in at least half a dozen ways and decreases it in no significant way.

Book Review, Juanita V. Field, Thomas G. Field Jr.

RISK: Health, Safety & Environment (1990-2002)

Review of: WESLEY A. MAGAT & W. KIP VISCUSI, INFORMATIONAL APPROACHES TO REGULATION. (MIT Press 1992) [274 pp.] Appendices, endnotes, illustrations, index, list of titles in the Regulation of Economic Activity series, list of tables and figures, preface, series foreword. LC 91-29483; ISBN 0-262-13277-X. [$32.50 cloth. 55 Hayward Street; Cambridge MA 02142.]

The Reunification Of Contract: The Objective Theory Of Consumer Form Contracts, Michael I. Meyerson

All Faculty Scholarship

Despite the ubiquitousness of standard form contracts in the world of consumer transactions, there is no consensus as to how these contracts ought to be constructed. Some courts continue to treat form contracts as if they were classically negotiated contracts. Others attempt in a variety of ways to factor in the reality that consumers entering into these contracts are not able to negotiate the terms and almost always sign these documents, which are presented on a take-it-or-leave-it basis, without reading them. This article posits that the cause of this continued confusion over form contracts is due to a basic failure …

Rescuing The Revolution: The Revived Case For Enterprise Liability, Steven P. Croley, Jon D. Hanson

Michigan Law Review

The article proceeds as follows. Part I defines important terms and introduces the two-by-four Products Liability Matrix by explaining the eight possible positions that might be taken with respect to the mutability and liability-standard dimensions of products liability. Part II provides a backdrop for the current products liability debate, first by setting out a capsule history of the evolution of the modem products liability regime, and then by explaining the arguments offered by the "first generation" of products liability scholars to justify expanded manufacturer liability. Part II also illustrates the utility of the Products Liability Matrix by locating many of …

Empowering The Russian Consumer In A Market Economy, James P. Nehf

Michigan Journal of International Law

One purpose of this article is to examine how the legislative product of a declining socialist state will benefit Russian consumers during the unusual circumstances characterizing the period of market transformation. A second purpose is to familiarize Western consumerists with the decidedly pro-consumer features of the Russian law. Part I analyzes the consumer law's provisions that elevate the legal status of consumers when they purchase goods and services. Part II examines the legislation from a different perspective - as a set of legal norms affecting the operation of consumer markets generally. Part III discusses the enforcement mechanisms established in the …

Defining "Green": Toward Regulation Of Environmental Marketing Claims, Roger D. Wynne

University of Michigan Journal of Law Reform

This Note joins a rising chorus calling for government regulation of green marketing claims. It attempts to encourage and add a sense of urgency to a burgeoning regulatory movement by highlighting some of the legal issues that such regulation entails. Part I identifies a gap in the law: the inability of current truth-in-advertising laws to clarify the legality of green marketing claims. Part II urges bridging that gap quickly; it examines the costs of continued nonregulation and describes some of the forms regulation is taking. Part III attempts to allay any fears that such regulations might be challenged on first …

The First-Party Insurance Externality: An Economic Justification For Enterprise Liability, Jon D. Hanson, Kyle D. Logue

Articles

This Article explores the insurance and deterrence implications of important and long overlooked facts. Consumers are insured through first-party mechanisms against most of the risks of product accidents. However, first-party insurers rarely and imperfectly adjust premiums according to an individual consumer's decisions concerning exactly what products she will purchase, how many of those products she will purchase, and how carefully she will consume them. Such consumer decisions we refer to as "consumption choices. " This failure by first-party insurers to adjust premiums according to consumption choices gives rise to a first-party insurance externality. Based on this insight, this Article offers …

Do The Doj Vertical Restraints Guidelines Provide Guidance?, Alan A. Fisher Ph.D., Frederick I. Johnson, Robert H. Lande

All Faculty Scholarship

Vertical restraints come in a glittering menu of exceptional variety, including resale price maintenance (RPM), tying, exclusive dealing, requirements contracts, "best efforts" clauses, full-line forcing, airtight and nonairtight exclusive territories, customer restrictions, areas of primary responsibility, profit-passover provisions, restrictions on locations of outlets, and dual distribution. Firms sometimes combine vertical restraints into packages. The great variety of individual and combined vertical restraints complicates the discovery of market effects. Indeed, identifying what restraint(s) a given firm is using at any particular time can be difficult.

Adaptive Responses To Chemical Labeling: Are Workers Bayesian Decision Makers?, W. Kip Viscusi, Charles J. O'Conner

Vanderbilt Law School Faculty Publications

A fundamental issue in the economics of uncertainty is how individuals process information and make choices under uncertainty. In a recent analysis of the findings on risk perception, Kenneth Arrow (1982) concluded that the evidence regarding individual rationality was, at best, quite mixed. A prominent example of apparent irrationality of actual consumer behavior is that consumers, who presumably are risk averse, have failed to purchase heavily subsidized federal flood insurance. In the case of the market for hazardous jobs, which is the focus of this study, Viscusi (1979) found that workers' risk perceptions were positively correlated with the industry risk …

Revolt Against Regulation: The Rise And Pause Of The Consumer Movement, Michigan Law Review

Michigan Law Review

A Review of Revolt Against Regulation: The Rise and Pause of the Consumer Movement by Michael Pertschuk

How Consumer Remedies Fail, Bryant G. Garth

Michigan Law Review

A Review of No Access to Law: Alternatives to the American Judicial System edited by Laura Nader

Wealth Transfers As The Original And Primary Concern Of Antitrust: The Efficiency Interpretation Challenged, Robert H. Lande

All Faculty Scholarship

Chicago School antitrust policy rests upon the premise that the sole purpose of antitrust is to promote economic efficiency. This article shows that this foundation is flawed. The fundamental purpose of antitrust is to protect consumers. To protect purchasers from paying supracompetitive prices when they buy goods or services. This is the "wealth transfer," "theft", "consumer welfare" or "purchaser protection" explanation for antitrust.

The article shows that the efficiency view originated in a detailed analysis of the legislative history of the Sherman Act undertaken by Robert Bork. Bork purported to show that Congress only cared about enhancing economic efficiency.

To …

An Act Of Faith, Jerry J. Phillips

Michigan Law Review

A Review of Modern Products Liability Law by Rocjard A. Epstein

Consumer Warranty Claims Against Companies In Chapter 11 Reorganizations, Elizabeth Warner

University of Michigan Journal of Law Reform

This article examines the rights of individuals who have purchased warranted goods from a business that subsequently undergoes reorganization under Chapter 11 of the Bankruptcy Reform Act of 1978. Part I establishes that warranty rights are claims in bankruptcy and outlines the procedure that must be followed by a creditor for distribution from the debtor's estate. Part II focuses on how warranty claims are treated in Chapter 11. Part III discusses ways to alleviate the warranty creditor's representational burden, particularly through the intervention and aid of public interest groups. This article concludes that . warranty creditors will receive favorable treatment …

Efts: Consumer Protection Under The Ucc, Susan E. Jinnett

University of Michigan Journal of Law Reform

In view of the economic significance of the payments system, the laws governing it must be equitable and comprehensive. The development of the commercial law applicable to EFTS's, however, currently lags behind the growth of these systems. Threats to the integrity of EFTS's stem from lost, stolen, or forged access cards, illegal taps into communication lines, physical impairment of the equipment, or improper programming. The legal rights and liabilities of consumers where the integrity of an EFTS has been breached remains unclear, in part because the status of EFTS's under current law is uncertain. The rights of the parties involved …

Criminal Consumer Fraud: A Victim-Oriented Analysis, Donald P. Rothschild, Bruce C. Throne

Michigan Law Review

The poor and the elderly are the principal victims of the high pressure and often sophisticated sale techniques of criminal consumer fraud in this country. The problem is compounded when the poor and the elderly live in inner cities where legal assistance is costly and inadequate, and the courts, prosecutors, and investigators are overburdened. Yet the executive and legislative agencies responsible for law enforcement continue to assign a low priority to criminal consumer fraud. President Ford has reflected this orientation: "For effective management [of law enforcement], we first have to have some hard decisions on priorities. As a starter, I …

The Role Of The Michigan Attorney General In Consumer And Environmental Protection, Michigan Law Review

Michigan Law Review

In an effort to clarify the role of the attorney general as public representative, this Note will examine the functioning of the office of the Michigan attorney general. After an analysis of the nature and extent of the attorney general's powers and of his current utilization of those powers, several proposals to increase his effectiveness will be discussed.

Information Disclosure And Consumer Behavior: An Empirical Evaluation Of Truth-In-Lending, William K. Brandt, George S. Day

University of Michigan Journal of Law Reform

This article offers some empirical insight into the debate over the efficacy of disclosure legislation. The primary concern is the effect of the Act on (1) the level of consumer knowledge of interest rates and finance charges; (2) the extent of comparison shopping; and (3) the decisions to postpone purchases, to use cash instead of credit, or to reduce the finance charges by increasing the downpayment or reducing the number of payments. The article also evaluates patterns of consumer behavior and credit-granting procedures which may constrain the long-run potential of TIL.

Consumer Protection In The Credit Card Industry: Federal Legislative Controls, John C. Weistart

Michigan Law Review

Credit cards have been used as a means of facilitating delayed-payment purchases since early in this century. The first credit card systems were operated by retailers and service organizations in connection with the merchandising of their products. While such programs were used in local markets by department stores, oil companies were the first issuers to recognize the potential of credit card plans in larger geographical areas. In the early 1950's a new phase in credit card development evolved with the emergence of firms engaging solely in the extension of credit. These firms-Diners' Club, American Express, and Hilton Credit Corporation with …

Representation Of The Public Interest In Michigan Utility Rate Proceedings, Michigan Law Review

Michigan Law Review

Although the Free Press study centered on political and economic issues, the operation of the Michigan Public Service Commission also raises significant issues regarding the role of public intervenors, agency compliance with statutory requirements, statutory construction, and legislative response to regulatory deficiencies. This Comment will consider the representation of the public interest in Michigan utility proceedings in the context of rate cases involving the state's major utilities. While such an analysis does not reach the breadth of activities performed by the Commission, it is suggestive of the extent to which the Commission is responsive to the public interest generally. Following …

Consumer Complaints: A Proposed Federal Trade Regulation Rule, Howard R. Lurie

University of Michigan Journal of Law Reform

It is no secret that most consumers are unable to protect themselves in the marketplace, yet government assistance to the consumer is frequently unavailable. All too often the bureaus of government are interested primarily in controversies of major significance. Minor consumer complaints are viewed as an annoyance that distract and interfere with more important matters. What must be done to protect consumers is to redress the balance of power now heavily weighted in favor of business. To do so requires that government go beyond current concepts of appropriate consumer protection and establish unorthodox remedies. One such remedy is suggested in …

The Prosubstitution Trend In Modern Pharmacy Law, Sidney H. Willig

University of Michigan Journal of Law Reform

This article explores the legal problems presented to the practicing pharmacist by drug substitution. It delineates the practical and economic realities bearing on substitution and the arguments both in favor of and against limited legal substitution. After describing the current status of the law on the subject and the various resultant liabilities of the pharmacist, the article then suggests means by which substitution might be made an acceptable practice in certain circumstances.