Consumer Protection Law Commons^™

The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz

Other Publications

As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …

Brief Of Aarp, The National Legislative Association On Prescription Drug Prices, Community Catalyst, And Prescription Policy Choices, As Amici Curiae In Support Of Appellees, Ims Health Inc. V. Sorrell, Sean Flynn

Amicus Briefs & Court Filings

This brief supports protecting the confidentiality of prescription records in the state of Vermont from commercial uses by pharmeceutical companies to market new drugs to physicians directly.

The Great Bailout Of 2008-09, Frederick Tung

Faculty Scholarship

My task today is to talk about the financial crisis. I only have a short time to talk, so rather than try to give you a comprehensive analysis of events, I'm going to offer some of my own idiosyncratic takes on what has been happening. In addition, I will introduce my own small reform proposal for regulating bank risk taking. So, I'll give you a little bit of news, a little bit of weather, a little bit of everything.

Where are we now? Let us begin with a statement Henry Paulson made six months ago while Bear Steams was getting …

Accessing Insolvent Consumer Debtors, Challenges And Strategies For Empirical Research, Janis P. Sarra, Danielle Sarra

All Faculty Publications

Insolvency law policy is best informed by a comprehensive understanding of the policy objectives of particular measures and the practical outcomes of particular choices. Yet there continues to be a lack of empirical research in Canada in respect of consumer insolvency, its underlying causes and its outcomes. Debtors' or bankrupts' experience with the insolvency system is almost impossible to gauge with the data now collected. Research funding for legal, economic and sociological scholars in the insolvency area continues to be very limited. This paper examines current challenges and strategies for empirical research on consumer insolvency in Canada. It explores options …

Economic Rehabilitation: Understanding The Growth In Consumer Proposals Under Canadian Insolvency Legislation, Janis P. Sarra

All Faculty Publications

Economic rehabilitation is the notion underlying Canada’s Bankruptcy and Insolvency Act (BIA), providing consumer debtors with an opportunity for a “fresh start” through the mechanism of bankruptcy or making a proposal to their creditors for payment of their debts on terms that allow them to rehabilitate their financial status. This article undertakes a comparison of consumer proposals and consumer bankruptcies, examining 5,773 individual insolvencies in the past two years, with a view to discerning choices by individual insolvent debtors of insolvency proceeding. It compares causes of financial distress, income levels, quantum of debt and the assets of those filing proposals …

Leave Me Alone! The Delicate Balance Of Privacy And Commercial Speech In The Evolving Do-Not-Call Registry, Andrew L. Sullivant

Federal Communications Law Journal

In 2004, the Tenth Circuit held that although the newly enacted do-not-call registry restricted commercial speech, the restriction was narrowly tailored and thus fell within the bounds of the Constitution. Since that decision, the Federal Trade Commission has amended the do-not-call registry to abolish the provision that required individuals to re-register every five years, and in 2008, Congress passed the amendment. This Note argues that the five-year reregistration requirement is a substantial factor in the registry's narrow tailoring. By removing the requirement, questions as to the restriction's constitutionality reemerge.

Canadian Food Law Update, Patricia L. Farnese

Journal of Food Law & Policy

Provided below is an overview of developments in Canadian food law and policy in 2008. This update primarily analyzes regulatory and policy developments by the federal government. This focus reflects the significance of federal activities in the food policy realm. As this is the first Canadian update to appear in the Journal of Food Law & Policy, it is appropriate to include a brief summary of the Canadian regulatory framework for food. The regulatory framework provides the necessary context to identify trends driving recent changes in Canadian food law and policy.

Your Mileage May Vary: A General Theory Of Legal Disclaimers, R. George Wright

The University of New Hampshire Law Review

[Excerpt] “Disclaimers are a common feature of public and commercial life. While this article will be concerned with disclaimers only in legal contexts, the range of such legal contexts is broad. This article will refer below to disclaimers by governmental and non-governmental actors in various circumstances. Disclaimers arise, for example, in Establishment Clause cases in general, and of late, in cases involving public school evolution text books. Disclaimers may also be thought of as a remedy for compelled speech, or as themselves an instance of compelled speech. In addition, commercial speech is a fertile source of disclaimer problems, as in …

Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Cornell Law Faculty Publications

We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.

The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same …

European Union Food Law Update, Emilie H. Leibovitch

Journal of Food Law & Policy

The European Union (EU) is facing major institutional challenges because Ireland rejected the Treaty of Lisbon last summer. The Treaty of Lisbon aims at modifying the institutional framework of the EU; more precisely, it aims in part at modifying the interaction of the various EU regulatory bodies with one another, as well as the interaction between the EU regulatory bodies and the national ones. The next few months will be decisive in determining whether the Treaty of Lisbon will finally replace the Treaty of Nice.

The Fundamental Goal Of Antitrust: Protecting Consumers, Not Increasing Efficiency, John B. Kirkwood, Robert H. Lande

All Faculty Scholarship

The conventional wisdom in the antitrust community is that the purpose of the antitrust laws is to promote economic efficiency. That view is incorrect. As this article shows, the fundamental goal of antitrust law is to protect consumers.

This article defines the relevant economic concepts, summarizes the legislative histories, analyzes recent case law in more depth than any prior article, and explores the most likely bases for current popular support of the antitrust laws. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that …

Are Artificial Tans The New Cigarette? How Plaintiffs Can Use The Lessons Of Tobacco Litigation In Bringing Claims Against The Indoor Tanning Industry, Andrea Y. Loh

Michigan Law Review

Indoor tanning salons have grown significantly in popularity during recent years. Scientific research has revealed a strong link between skin cancer and ultraviolet light exposure from indoor tanning lamps. Despite such dangers, federal regulations place minimal restrictions on the labeling of indoor tanning lamps. Indoor tanning salons work vigorously to dispel notions of a link to skin cancer, often falsely promoting various health benefits of indoor tanning. The first lawsuit for injuries resulting from indoor tanning was recently filed against an indoor tanning salon, and other such litigation is poised to follow. This Note examines three potential tort claims against …

Torts And Innovation, Gideon Parchomovsky, Alex Stein

Michigan Law Review

This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.

Proposed Legislation: A (Second) Modest Proposal To Protect Virginia Consumers Against Defective Products, Peter Nash Swisher

University of Richmond Law Review

The purpose of this article is to suggest a viable, necessary, and eminently reasonable legislative alternative that the Virginia General Assembly should enact for legitimate and pressing public policy reasons in order to properly protect Virginia consumers from defective and unreasonably dangerous consumer products.Adopting this alternative would bring the Commonwealth of Virginia into the mainstream of twenty-first century American, and transnational, products liability law.

If The "Shoe" Fits: Reconciling The "International Shoe" Minimum Contacts Test With The Anticybersquatting Consumer Protection Act, John A. Greer

Vanderbilt Law Review

The desire to assume a false identity is one that transcends cultures and time periods. Even the most socially confident and successful person has, at some point, contemplated the possibility of changing or masking his or her identity-if only temporarily-with the hope of gaining some sort of competitive advantage. History and popular culture are replete with instances of such conduct, with varying degrees of success. One of the most famous historical examples, originating in Greek mythology, is the legend of the Trojan horse: the Greeks' surprise invasion of Troy using a hollow, wooden horse.

This same desire to gain a …

Step Right Up: Using Consumer Decision Making Theory To Teach Research Process In The Electronic Age, Amy E. Sloan

All Faculty Scholarship

The legal academy has framed legal research as a professional skill, and much research pedagogy centers around replicating a controlled professional environment to allow students to learn how to do research by simulating legal practice. Although this is a valid way to conceptualize research, it is not the only way. Another way to conceptualize research is as a consumer transaction. Legal information is, in many ways, a product that information providers market to lawyers and students, as the promotions and contests that LexisNexis and Westlaw sponsor demonstrate. Once legal information is understood as a product, the process of research can …

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 …

Is Europe Unfairly Attacking Another U.S. High Technology Company?, Robert H. Lande

All Faculty Scholarship

This short piece considers whether the EU antitrust action against Intel constitutes an example of European regulators attacking a successful US company in order to protect a European competitor, or whether it instead is an example of legitimate law enforcement.

True Or False: The Expanding "False By Necessary Implication" Doctrine In Lanham Act False Advertising, And How A Revitalized Puffery Defense Can Solve This Problem, Sarah Samuelson

Cardozo Law Review

No abstract provided.

Statins And Adverse Cardiovascular Events In Moderate-Risk Females: A Statistical And Legal Analysis With Implications For Fda Preemption Claims, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This article presents: (1) meta-analyses of studies of cardioprotection of women and men by statins, including Lipitor (atorvastatin), and (2) a legal analysis of advertising promoting Lipitor as preventing heart attacks. The meta-analyses of primary prevention clinical trials show statistically significant benefits for men but not for women, and a statistically significant difference between men and women. The analyses do not support (1) statin use to reduce heart attacks in women based on extrapolation from men, or (2) approving or advertising statins as reducing heart attacks without qualification in a population that includes many women. The legal analysis raises the …

Brief Of Amici Curiae Former Fda Commissioners Dr. Donald Kennedy And Dr. David A. Kessler In Support Of Respondent, Wyeth V. Levine, No. 06-1249 (U.S. Aug. 14, 2008), Kathryn A. Sabbeth, David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

University of Michigan Journal of Law Reform

We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared the use of arbitration clauses in firms' consumer and nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in the vast majority of material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. Our data …

Arbitration Costs And Forum Accessibility: Empirical Evidence, Christopher R. Drahozal

University of Michigan Journal of Law Reform

In this Article, written for this symposium issue on "Empirical Studies of Mandatory Arbitration," I examine the available empirical evidence on these two questions. I take "mandatory arbitration" to refer to pre-dispute arbitration clauses in consumer and employment (and maybe franchise) contracts. Accordingly, I limit my consideration of the empirical evidence to those types of contracts. I do not discuss empirical studies of international arbitrations, which almost always arise out of agreements between commercial entities. Nor do I discuss empirical studies of court-annexed arbitrations, which may not derive from party agreement and do not ordinarily proceed to a binding award.

Brief Of Amici Curiae Tobacco Control Legal Consortium Et Al. In Support Of Respondents, Altria Group, Inc. V. Good, No. 07-562 (U.S. June 17, 2008), Kathryn A. Sabbeth, David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

Does "Made In China" Translate To "Watch Out" For Consumers? The U.S. Congressional Response To Consumer Product Safety Concerns, Julia A. Phillips

Penn State International Law Review (1982 - 2011)

No abstract provided.

Should Fda Drug And Medical Device Regulation Bar State Liability Claims?: Hearing Before The H. Comm. On Oversight And Government Reform, 110th Cong., May 14, 2008 (Statement Of Professor David C. Vladeck, Geo. U. L. Center), David C. Vladeck

Testimony Before Congress

No abstract provided.

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 …

United States Food Law Update: Food Safely Planning, Attribute Labeling, And The Irradiation Debate, Bryan Endres

Journal of Food Law & Policy

This article summarizes significant changes and developments in food law throughout the second half of 2007. The previous edition of the Food Law Update noted the recent increase in imported food and the resulting stress placed on food safety agencies and customs officials. Detailed inspections of every food shipment entering the United States would quickly exhaust limited agency resources and cripple efficient international trade of food products. On the other hand, after several well-publicized food scares and the ongoing threat of international contamination, the public increasingly demands high levels of physical surveillance. As a part of this ongoing discussion, this …

European Union Food Law Update, Emilie H. Leibovitch

Journal of Food Law & Policy

The following European Union Food Law Update will address significant changes in European Union (EU) food law that occurred between 2006 and early 2008. The update will be different from the previous ones, as it will instead be organized by the subject areas addressed by the developments. The published regulations, proposals, cases, and other relevant news will thus be incorporated under their corresponding topic headings.

Drafting Common Interest Community Documents: Minimalism In An Era Of Micromanagement, Patrick K. Hetrick

Campbell Law Review

Part I of this Article suggests a minimalist approach to the drafting of documentation creating a common interest community. It assumes that the common interest community will be located in a jurisdiction that has passed some form of a comprehensive uniform act. Part II then analyzes the issue of "promises" (covenants, restrictions, and rules) and addresses issues that include the unfortunate contemporary trend toward micromanagement of communities. It goes on to suggest that a legislative and judicial reaction to private community governance is developing. Part III of this Article explains why existing consumer protection devices are little more than mirages …