Consumer Protection Law Commons^™

Digital Platform Safety And The Problem Of Variable Costs, Margaret E. O'Grady, Fiona Scott Morton

Law Faculty Scholarship

Because the United States has no digital regulator to set minimum quality or safety standards for digital products, dominant platforms have both the ability and permission to harm consumers, a trend which will accelerate. Digital platforms with market power have no incentive to shoulder the expense of providing safe, high-quality services, because the marginal costs of providing increased quality and safety—often human beings engaged in content moderation or fact-checking—are so high. If providing better quality would increase profits, digital platforms would have done so already. Instead, digital platforms act like automobile manufacturers before regulators required seatbelts: they will insist that …

Consumer Protection And The Illusory Promise Of The Unconsciounability Defense, Benjamin C. Zipursky, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

The United States Supreme Court’s notorious decision in AT&T Mobility LLC v. Concepcion seems to display impatience with the idea of an unconscionability defense to the enforcement of a contract. At the core of Justice Antonin Scalia’s opinion, however, was not an argument against the idea of unconscionability per se, but an argument against using “unconscionability” as a cover for a broader public policy agenda. This interpretation is confirmed by the Court’s little-known decision in Marmet Health Care Ctr., Inc. v. Brown, handed down the term after Concepcion was decided. Plaintiffs were allowed to move forward in Marmet because the …

Table Of Contents, Loyola Consumer Law Review

Loyola Consumer Law Review

No abstract provided.

Decency And Responsibility: Preserving Egyptian Tally Cloth Cultural Heritage And Protecting The Intellectual Property Of Egyptian Artisans., Noha Fawzy Ph.D, Marwa Zein Ph.D, Ahmed Elseragy Ph.D, Catherine Harper Ph.D

Arts and Design

Tally is an exquisite Egyptian netting fabric, cotton or linen with nickel silver, copper or brass strip embroidery, a powerful symbol of Egypt's opulent textile and artisanal culture. Traditionally handmade, it originated in Upper Egypt’s Asyut region where ancient Egyptian makers pioneered embellishment of translucent cloth with metallic threads. Its iconography - geometric flora, fauna, humans and camels – in black, white or ecru. With beautiful drape and fluidity, it is a highly valued part of Egypt’s rich cultural heritage.

Preserving Tally and protecting the intellectual property rights of its artisans is urgent to ensure sustainable livelihoods, safeguard this unique …

Forced Arbitration In Tesla’S Consumer Contracts, Abigail Hug

Arbitration Brief

The Supreme Court has supported the FAA’s preference for enforcing arbitration clauses and has extended it to forced arbitration provisions. In DirecTV v. Imburgia, the Supreme Court upheld a mandatory arbitration clause in a consumer service agreement, which additionally prohibited class arbitration. The Court reasoned that the FAA clearly states that written provisions in contracts that mandate arbitration are enforceable as all other contracts are enforceable. Companies throughout the United States use forced arbitration for employment and consumer contracts, including those for car leases. Forced arbitration clauses in consumer contracts ensure that customers settle their disputes with a company through …

Tech-Neutrality Or Tech-Sensitivity? Emerging Principles Of Crypto-Asset Regulation In The U.S. And The E.U., Firat Cengiz

Loyola Consumer Law Review

Crypto assets are subject to financial and bespoke regulations in the United States (US) and the European Union (EU). Regulatory effectiveness requires assets to be subject to the regulatory regime that addresses their risks best, whilst regulatory fairness requires market participants to be able to identify the regulatory standards they need to comply with. Whilst comparing the interplay between financial and bespoke crypto-asset regulations in the US and the EU, this article finds that the two polities might be embarking on different paths of crypto-asset regulation. The former moves in the direction of tech-sensitivity, whereas the latter sticks with strict …

Uber's Mandatory Arbitration Agreements: How They Redefine The Meaning Of 'Assent' In Different States, Mariya Mujahid

Loyola Consumer Law Review

No abstract provided.

Algorithmic Speech Harm, Mateusz Grochowski

Loyola Consumer Law Review

This paper examines the potential application of product liability doctrine to content moderation and recommendation algorithms employed by social media platforms. Emerging scholarship and evolving case law suggest that product liability could provide a viable legal pathway to circumvent the limitations imposed by Section 230 of the Communications Decency Act. The article critically evaluates this proposition and delves into the doctrinal foundations of product liability to assess its capacity to address harms inflicted on consumers by algorithmic systems. A central focus of the analysis is the development of a more precise definition of the harm that users understood here as …

We Just Want To Play The Game: Anti-Cheat Software Risks In Videogames, Kevin Du

Loyola Consumer Law Review

No abstract provided.

The Right To Arbitrate(?): Integrating Consumer Protection Into Judicial Review Of The Mccarran-Ferguson Act And The New York Convention, Rachel Bamberger

American University Business Law Review

International commercial arbitration has grown increasingly popular as an alternative method of dispute resolution. This Comment explores the struggle courts face when they must determine whether to apply the New York Convention, an international treaty that recognizes and compels arbitration agreements, or a federal statute known as the McCarran-Ferguson Act, which delegates authority to the states to regulate insurance. Conflict arises when foreign insurers seek to compel arbitration under the New York Convention in states with antiarbitration insurance laws, and courts must choose between upholding domestic state laws or honoring the Treaty.

This Comment examines the method of analysis used …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

Informowanie O Najniższej Cenie W Okresie 30 Dni Przed Obniżką W Praktyce Polskiego Sektora Bankowego, Monika Brzeska-Kozerska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article analyzes the implementation of the information obligation regarding the lowest price in the last 30 days before a reduction, arising from Article 4(2) of the Act on Informing about the Prices of Goods and Services (Act on Prices), in the context of the banking sector. The implementation of the so-called Omnibus Directive into the Polish legal system, aimed at preventing consumer deception, has raised doubts about its application to financial institutions. The purpose of the analysis was to determine whether, and to what extent, banks are obliged to fulfill this information obligation in relation to the products and …

Locating Consumer Financial Regulation, Nikita Aggarwal

Articles

Recent advances in data-driven technology in consumer financial markets, commonly referred to as "fintech," have resurfaced the question of whether and to what extent data, particularly consumers' personal data, should be a locus for regulatory intervention in these markets. While innovation in fintech and the accompanying increase in the processing of personal data offer to improve the functioning of consumer financial markets, like all advances in technology, they also come with costs and risks. In 2024, in a move that favored the regulation of personal financial data per se and many of the traditional features of personal data protection regulation, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Narrowing The Frame: Consumer Insurance Policies And The Limits Of The Restatement Of Consumer Contracts, Daniel Benjamin Schwarcz

Articles

No abstract provided.

The Techcons, Chris Jay Hoofnagle

Loyola Consumer Law Review

Selling sometimes involves trickery. How should we decide what trickery is "swindling" versus ordinary "selling"? One method is elucidated in Yale Law Professor Arthur Leff's curious, lost-to-history book. In "Swindling and Selling: The Story of Legal and Illegal Congames", Leff showed how market structure is a powerful factor for distinguishing illegal confidence games ("congames") what he called "swindling" from legal "selling." Leff demonstrated how con artists weave narratives to convince marks they have a monopoly over some desirable asset. Con artists then manipulate marks to mistakenly believe they possess a monopsony over its capture.

This essay revisits Leff's mostly forgotten …

Vacillation Or Instability? The Fcc's Authority After Loper Bright, Eliot Merriner

Loyola Consumer Law Review

No abstract provided.

Table Of Contents, Loyola Consumer Law Review

Loyola Consumer Law Review

No abstract provided.

Big Tech And Consumer Payments: The Good, The Bad, And The Unintended Consequences, Mark E. Budnitz

Loyola Consumer Law Review

No abstract provided.

The Generation Of Maladies: The U.S. Tech Giants, David Vladeck

Loyola Consumer Law Review

No abstract provided.

Strengthening The Right To Accessible Web Sites For Consumers With Disabilities Through The Development Of A Clear Test For The Nexus Rule Under Title Iii Of The Americans With Disabilities Act, Jonathan Lazar

Loyola Consumer Law Review

Currently, most of the U.S. Federal disability rights laws expressly require accessible websites for people with disabilities, either in the statute or the regulation. There is one major exception: for websites of public accommodations under Title III of the Americans with Disabilities Act, the scope of accessibility coverage is determined by a combination of case law and agency interpretations, rather than expressly in the statute or regulations. To make it more complex, there is a three-way circuit split as to whether websites of public accommodations covered under Title III are required to have accessible websites. The predominant view in the …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Redefining The Relevant Market: Abandonment Or Return To Brown Shoe, Daniel A. Hanley

Dickinson Law Review (2017-Present)

Defining a relevant market is arguably the most important requirement in antitrust litigation. Between the 1890s and the 1940s, defining a relevant market was a simple and generalized process, typically undertaken by courts as a cursory matter. However, in the 1960s, defining relevant markets became a centerpiece of antitrust litigation. The modern method originates from the Supreme Court’s landmark 1962 decision in Brown Shoe v. United States. The method commonly known as the Brown Shoe test requires judges to construct relevant markets by carefully analyzing accessible and understandable qualitative data, such as internal corporate documents and consumer surveys. Since the …