Consumer Protection Law Commons^™

Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, Peter S. Menell

Nevada Law Journal Forum

In crafting the Defend Trade Secrets Act of 2016 (DTSA), Congress went beyond the federalization of state trade secret protection to tackle a broader social justice problem: the misuse of nondisclosure agreements (NDAs) to discourage reporting of illegal activity in a variety of areas. The past few decades have witnessed devastating government contracting abuses, regulatory violations, and deceptive financial schemes that have hurt the public and cost taxpayers and investors billions of dollars. Congress recognized that immunizing whistleblowers from the cost and risk of trade secret liability for providing information to the Government could spur law enforcement. But could this …

The Cfpb Is A Champion For Americans Across The Country, David J. Reiss

Cornell Law Faculty Working Papers

No abstract provided.

Regulating Fantasy Sports: A Practical Guide To State Gambling Laws, And A Proposed Framework For Future State Legislation, Marc Edelman

Indiana Law Journal

In recent months, the legal status of fantasy sports has undergone intense scrutiny, with the attorneys general of many states contending that certain formats of daily fantasy sports violate state gambling laws. In an effort to save the burgeoning daily fantasy sports industry, legislators in these states have proposed bills to affirmatively legalize and regulate daily fantasy sports. However, these bills often fail to adequately address the underlying consumer protection concerns pertaining to the industry.

This Article analyzes how U.S. states currently regulate the fantasy sports marketplace and proposes a framework for future state laws to effectively regulate both traditional …

Pay-For-Delay: How Brand-Name And Generic Pharmaceutical Drug Companies Collude And Cost Consumer Billions, Raymond J. Prince

South Carolina Law Review

No abstract provided.

Foreclosure Diversion And Mediation In The States, Alan M. White

Georgia State University Law Review

The recent mortgage foreclosure crisis, whose economic effects are well known, transformed state legal structures governing the mortgage foreclosure process. What had been a relatively routine system of default judgments and auction sales has evolved into a negotiation and workout practice in which homeowners contest foreclosures, demand loan modifications and short sales, and propose other alternatives to foreclosures.

A profusion of state laws and court orders were adopted between 2008 and 2014 with the aim of promoting negotiated foreclosure alternatives. These laws have produced a variety of experiments in the “laboratories of democracy.” The defaults—whether home loans are renegotiated, defaults …

Will Congress Remove Consumer Credit “Seat Belts”?, Christopher L. Peterson

Utah Law Faculty Scholarship

The CFPB has faced criticism not because it is out of control, but because it is effective. If the CFPB were bringing crazy cases, hundreds of federal judges appointed by Republican and Democratic presidents would simply dismiss the agency’s complaints. And some of those judges would enjoy doing so. Too many of America’s financiers are betting it will be easier to strangle the watchdog than actually follow the rules or pay up when they make a mistake. And worse, too many politicians, pundits, and astroturf-think-tanks-for-the-wealthy want to score political points by taking down what may be the best recent example …

It Depends: Recasting Internet Clickwrap, Browsewrap, "I Agree," And Click-Through Privacy Clauses As Waivers Of Adhesion, Charles E. Maclean

Cleveland State Law Review

Digital giants, enabled by America’s courts, Congress, and the Federal Trade Commission, devise click-through, clickwrap, browsewrap, "I Agree" waivers, and other legal fictions that purport to evidence user "consent" to consumer privacy erosions. It is no longer enough to justify privacy invasions as technologically inevitable or as essential to the American economy. As forced consent is no consent at all, privacy policies must advance with the technology. This article discusses adhesion waivers, the potential for FTC corrective action, and a comparison to privacy policies of the European Union.

Social Data Discovery And Proportional Privacy, Agnieszka Mcpeak

Cleveland State Law Review

Social media platforms aggregate large amounts of personal information as "social data" that can be easily downloaded as a complete archive. Litigants in civil cases increasingly seek out broad access to social data during the discovery process, often with few limits on the scope of such discovery. But unfettered access to social data implicates unique privacy concerns—concerns that should help define the proper scope of discovery.

The Federal Rules of Civil Procedure, as amended in 2015, already contain the tools for crafting meaningful limits on intrusive social data discovery. In particular, the proportionality test under Rule 26 weighs the burdens …

A Generic A Day Keeps The Lawyer Away, Cara Brumfield

Nevada Law Journal

No abstract provided.

Regulating Debt Collection, Christopher K. Odinet, Roederick C. White

Faculty Scholarship

Debt collection. It often starts as a late night call carrying threats of being thrown in prison, ruin at the workplace, and trouble for the family unless you pay up. While the law actually prohibits some of these tactics, most consumers do not know their legal rights, which leave much to be desired, or fail to exercise them when faced with the harassing practices of some debt collectors. Moreover, the debt collection industry as a whole — both massive and sophisticated — lacks the incentives to self-police or internally punish bad actors. In July 2016 the Consumer Financial Protection Bureau …

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 …

Self-Driving Cars: Autonomous Technology That Needs A Designated Duty Passenger, Michelle L.D. Hanlon

Barry Law Review

No abstract provided.

Dodd-Frank Repeal Unappealing For Homeowners, David J. Reiss

Cornell Law Faculty Working Papers

No abstract provided.

Gorsuch, Cfpb And Future Of The Administrative State, David J. Reiss

Cornell Law Faculty Publications

U.S. Supreme Court nominee Judge Neil Gorsuch would have an outsized influence on federal consumer protection enforcement if he is confirmed. In particular, if PHH v. Consumer Financial Protection Bureau is appealed to the Supreme Court, a Justice Gorsuch is likely to vote to strongly curtail the independence of the Consumer Financial Protection Bureau and limit its enforcement powers. More generally, he will be a skeptic of agency action, one who will support greater judicial review of agency actions.

Rethinking Children's Advertising Policies For The Digital Age, Angela J. Campbell

Georgetown Law Faculty Publications and Other Works

This article describes major changes in how video content and advertising is delivered to consumers. Digital technologies such as broadband allow consumers to stream or download programming. Smart phones and tablets allow consumers to view screen content virtually anywhere at any time. Advertising has become personalized and integrated with other content.

Despite these major changes in the media markets, the framework for regulating advertising to children has not changed very much since the 1990s. This article argues that the existing regulatory framework must be reinvented to protect children in the digital age. It uses Google’s recently introduced YouTube Kids app …

Toward A Fourth Law Of Robotics: Preserving Attribution, Responsibility, And Explainability In An Algorithmic Society, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

The Politics Of Professionalism: Reappraising Occupational Licensure And Competition Policy, Sandeep Vaheesan, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Antitrust And Consumer Protection, Leslie Sara Hyman, Matthew J. Mcgowan

Student Scholarship

Consumer welfare is the common concern of antitrust laws and the Texas Deceptive Trade Practices—Consumer Protection Act (DTPA). Antitrust, however, is primarily addressed to the misuse of market power to harm consumers, while the DTPA focuses on consumer harm brought about through deception.2 Antitrust laws and the DTPA, therefore, are best viewed as focusing on complementary aspects of consumer welfare.

This article covers significant developments under the federal and Texas antitrust laws and the DTPA during the Survey period—December 1, 2015 through November 30, 2016.

Commercial Creations: The Role Of End User License Agreements In Controlling The Exploitation Of User Generated Content, 16 J. Marshall Rev. Intell. Prop. L. 382 (2017), Neha Ahuja

UIC Review of Intellectual Property Law

This article considers the current licensing regime used to control the exploitation of copyright protected works within the online interactive entertainment sector—particularly virtual worlds including multiplayer online games—to further author new copyrightable works. This article aims to identify the gaps that have arisen on account of the nature of these subsequently authored works and the potential for their exploitation under the said licensing regime. Users and the proprietors of virtual worlds often end up in conflict over the monetization and commercialization of user generated content on account of contradictory yet overlapping rights created by copyright law when controlled by contract …

Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett

Scholarly Articles

Education software is a multi-billion dollar industry that is rapidly growing. The federal government has encouraged this growth through a series of initiatives that reward schools for tracking and aggregating student data. Amid this increasingly digitized education landscape, parents and educators have begun to raise concerns about the scope and security of student data collection.

Industry players, rather than policymakers, have so far led efforts to protect student data. Central to these efforts is the Student Privacy Pledge, a set of standards that providers of digital education services have voluntarily adopted. By many accounts, the Pledge has been a success. …

What We Buy When We "Buy Now", Aaron K. Perzanowski, Chris Jay Hoofnagle

Faculty Publications

Retailers such as Apple and Amazon market digital media to consumers using the familiar language of product ownership, including phrases like “buy now,” “own,” and “purchase.” Consumers may understandably associate such language with strong personal property rights. But the license agreements and terms of use associated with these transactions tell a different story. They explain that ebooks, mp3 albums, digital movies, games, and software are not sold, but merely licensed. The terms limit consumers' ability to resell, lend, transfer, and even retain possession of the digital media they acquire. Moreover, unlike physical media products, access to digital media is contingent …

Using Data Exclusivity Grants To Incentivize Cumulative Innovation Of Biologics' Manufacturing Processes, Eric Lawrence Levi

American University Law Review

No abstract provided.

Low Income Household Energy Assistance Program: Working To Ensure Protection For The Future, Benjamin P. Mayers

Loyola Consumer Law Review

No abstract provided.

The High Price Of Free Trade: Country-Of-Origin Labeling And The World Trade Organization, Thomas Gremillion

Loyola Consumer Law Review

In 2015, the United States lost a case before the World Trade Organization (WTO) worth over a billion dollars. Facing the threat of sanctions from Canada and Mexico, Congress acted quickly to repeal the offending measure, which required country-of-origin labeling (COOL) for beef and pork products. Specifically, the law required retailers to label products with information on where animals were born, raised, and slaughtered. The WTO Appellate Body reasoned that the costs of complying with COOL, potential labeling inaccuracies, and the law's exemptions for restaurants and smaller stores, made COOL an illegal trade barrier. While the Appellate Body recognized that …

Scotus Will Soon Decide Whether Class Waivers Are Enforceable, Rahmon Brown

Loyola Consumer Law Review

No abstract provided.

Corporate America Studies Abroad: An Incentive Analysis Of Tax Inversion And The Costs To Consumers, Thomas J K Schick

Loyola Consumer Law Review

No abstract provided.

Losing Loved Ones And Your Livelihood: Re-Evaluating Filial Responsibility Laws, Kara Wenzl

Loyola Consumer Law Review

No abstract provided.

Table Of Contents, Loyola Consumer Law Review

Loyola Consumer Law Review

No abstract provided.

Deregulating Arbitration, David L. Noll

Loyola Consumer Law Review

In the aftermath of the November 2016 election, commentators predicted that regulation of arbitration by federal administrative agencies would halt in its tracks. But something more interesting happened. Instead of stopping agency arbitration regulation, Trump’s election and Republicans’ defense of their House and Senate majorities balkanized it. The new administration has rolled back some Obama-era rules, but other efforts to undo agency arbitration regulations have faltered at the administrative level or in the courts. This Article—based on remarks delivered at the Loyola Consumer Law Review 2017 symposium—maps the terrain of agency arbitration regulation under Trump and discusses why some efforts …

Interpreting The "Reasonable Number Of Repair Attempts" Standard In Lemon Law Arbitrations, Mark Hanin, Carter Greenbaum, Jeremy Aron-Dine

Loyola Consumer Law Review

No abstract provided.