Consumer Protection Law Commons^™

The Heavy Hand Of Amazon: A Seller Not A Neutral Platform, Edward J. Janger, Aaron D. Twerski

Brooklyn Journal of Corporate, Financial & Commercial Law

Since the adoption of Section 402A of the Second Restatement of Torts, every party in a product’s distribution chain has been potentially liable for injuries caused by product defects. Consumers who buy from reputable sellers are almost always guaranteed to have a solvent defendant if injured by a product defect. Amazon, though responsible for a vast number of retail sales, has sought to avoid liability by claiming that it is not a seller but a neutral platform that merely facilitates third-party sales to consumers. With two significant exceptions, most courts have sided with Amazon and concluded that Amazon is not …

Modern Privacy Advocacy: An Approach At War With Privacy Itself?, Justin "Gus" Hurwitz, Jamil N. Jaffer

Pepperdine Law Review

This Article argues that the modern concept of privacy itself, particularly as framed by some of its most ardent advocates today, is fundamentally incoherent. The Article highlights that many common arguments made in support of privacy, while initially seeming to protect this critical value, nonetheless undermine it in the long run. Using both recent and older examples of applying classic privacy advocacy positions to key technological innovations, the authors demonstrate how these positions, while seemingly privacy-enhancing at the time, actually resulted in outcomes that were less beneficial for consumers and citizens, including from a purely privacy-focused perspective. As a result, …

Consumer Welfare & The Rule Of Law: The Case Against The New Populist Antitrust Movement, Elyse Dorsey, Geoffrey A. Manne, Jan M. Rybnicek, Kristian Stout, Joshua D. Wright

Pepperdine Law Review

Populist antitrust notions suddenly are fashionable again. At their core is the view that antitrust law is responsible for a myriad of purported socio-political problems plaguing society today, including but not limited to rising income inequality, declining wages, and increasing economic and political concentration. Seizing on Americans’ fears about changes to the modern US economy, proponents of populist antitrust policies assert the need to fundamentally reshape how we apply our nation’s competition laws in order to implement a variety of prescriptions necessary to remedy these perceived social ills. The proposals are varied and expansive but have the unifying theme of …

Securitizing Digital Debts, Christopher K. Odinet

Faculty Scholarship

The promise of financial technology (“fintech”) and artificial intelligence (“AI”) in broadening access to financial products and services continues to capture the imagination of policymakers, Wall Street, and the public. This has been particularly true in the realm of fintech credit where platform companies increasingly provide online loans to consumers, students, and small businesses by harnessing AI underwriting and alternative data. In 2019 alone fintech lenders represented nearly 50% of total non-credit card, unsecured consumer loan balances in the United States. One of the most prevalent ways fintech credit firms operate is by securitizing the online loans they help originate. …

The Folly Of Credit As Pandemic Relief, Pamela Foohey, Dalié Jiménez, Christopher K. Odinet

Faculty Scholarship

Within weeks of the coronavirus pandemic appearing in the United States, the American economy came to a grinding halt. The unprecedented modern health crisis and the collapsing economy forced Congress to make a critical choice about how to help American families survive financially. Congress had two basic options. It could enact policies that provided direct and meaningful financial support to people, without the necessity of later repayment. Or it could pursue policies that temporarily relieved people from their financial obligations, but required that they eventually pay amounts subject to payment moratoria later.

In passing the CARES Act, Congress primarily chose …

Discrimination And Privacy Concerns At The Intersection Of Healthcare And Big Data, James Koenderman

Cardozo Law Review

No abstract provided.

False Foods: Harmonizing The Eu And Us Organics Programs, Elizabeth G. Fudge

Brooklyn Journal of International Law

The growth of the importation and exportation of organic foods in recent years has led governments around the globe to take more aggressive approaches in overseeing and certifying such products. Currently, there is a discrepancy in how states certify and respond to non-compliance issues for imported organic products. This creates a strong need to harmonize organics programs, specifically between the EU and US programs, as they are the two largest consumers of organic products. Through auditing both the EU and US organic import programs, significant issues of non-compliance became exceedingly clear. This Note argues that the best solution for addressing …

The Efficacy Of Choice-Of-Law And Forum Selection Provisions In Third-Party Litigation Funding Contracts, Robert Glenn

Cardozo Law Review

No abstract provided.

The Paradox Of Automation As Anti-Bias Intervention, Ifeoma Ajunwa

Cardozo Law Review

A received wisdom is that automated decision-making serves as an anti-bias intervention. The conceit is that removing humans from the decision-making process will also eliminate human bias. The paradox, however, is that in some instances, automated decision-making has served to replicate and amplify bias. With a case study of the algorithmic capture of hiring as a heuristic device, this Article provides a taxonomy of problematic features associated with algorithmic decision-making as anti-bias intervention and argues that those features are at odds with the fundamental principle of equal opportunity in employment. To examine these problematic features within the context of algorithmic …

The Incredible Edible: Protecting Businesses And Consumers In A Society Of Legalized Cannabis, Brandon M. Thompson

Nevada Law Journal Forum

This Article briefly discusses the history and origin of marijuana, or more precisely the cannabis plant, before branching into an examination of its chemical properties, forms, and uses. Including a concise survey of the various effects—including adverse side effects—of cannabis use. Additionally, it provides an introduction to products liability as it relates to drugs, in general, and then more specifically to the production and distribution of edibles. It will discuss some of the dangers that edibles pose to children. The focus will be primarily on issues with the marketing and presentation of edibles that have led to unintended cannabis consumption …

All That Glitters Is Gold: The Regulation Of Hidden Advertisements And Undisclosed Sponsorships In The World Of Beauty Social Media Influencers, Ashley Luong

William & Mary Business Law Review

What happens when a trusted acquaintance is caught lying? What if these lies have influenced your purchasing decisions? In the realm of social media influencers, the line between authentic opinions and sponsored advertisements is a blurred one. Influencers have considerable marketing power over millions of followers and their brand of authenticity makes them a desirable partner to big corporations seeking to promote their products. Under current FTC regulations, the simplified rule for advertisement disclosure is to make the disclosure “clear and conspicuous” with very little guidance beyond that phrase. Influencers are uncertain how to disclose, some choosing to toe the …

In Conspicuous Terms-- Arbitration Agreements For The Modern Reasonable App User, Michelle Dunbar

William & Mary Business Law Review

Two recent decisions regarding the validity of arbitration agreements in mobile apps have come to opposite conclusions despite utilizing the same legal standard and concerning the same app—Uber. While the Federal Arbitration Act strongly favors the validity and importance of arbitration agreements, it appears that judge’s subjectivity based on common knowledge and understanding of apps is influencing the outcome of cases concerning the validity of these arbitration agreements. To the modern app user, are these terms really inconspicuous? For businesses, this could mean that instead of competing in an already saturated app market by enhancing their design and integrating branding …

Investigating Healthcare Fraud: Its Scope, Applicable Laws, And Regulations, Nicole Forbes Stowell, Carl Pacini, Nathan Wadlinger, Jaqueline M. Crain, Martina Schmidt

William & Mary Business Law Review

Healthcare costs are not only an enormous strain on the U.S. economy but are expected to increase in the foreseeable future. Not surprisingly, clever fraudsters view the healthcare industry as a lucrative and attractive hotspot for illegal activity. Although federal and state governments have increased their funding and prosecution efforts relating to healthcare fraud, this fraud continues to be a major threat to the U.S. economy and every patient and consumer. The impact of healthcare fraud is substantial and far-reaching. Healthcare fraud in the U.S. affects not only the government, but also insurance companies, patients, healthcare providers, and consumers. This …

Securities Exchange Act Section 4e(A): Toothless "Internal-Timing Directive" Or Statute Of Limitation?, Richard E. Brodsky

William & Mary Business Law Review

The Securities and Exchange Commission has a problem, and everyone knows it: its investigative process suffers from excessive delay, which harms both individuals and entity it investigates and its own enforcement program. This problem has long been recognized and complained about, but never remedied.

In 2010, Congress passed a law specifically designed to solve the problem of excessive delay but, the way the SEC has read the law—which has been acquiesced in by the courts and ignored by subsequent Congresses—has rendered it toothless and essentially meaningless. This has been accomplished, first, by the Commission’s cabined interpretation of the purpose of …

Who Sells? Testing Amazon.Com For Product Defect Liability In Pennsylvania And Beyond, Aaron Doyer

Journal of Law and Policy

Pennsylvania, like other states, has struggled over the past few decades to apply the policy principles of product defect law—a tort characterized by strict liability. Because strict liability bypasses the traditional requirement in tort that a plaintiff prove the defendant’s negligence, and instead requires only a showing that the plaintiff was injured by a product sold in a defective condition, these inquiries raise a deceptively simple question: who sells? Recently, in a landmark case in Pennsylvania, the Third Circuit made waves by declaring Amazon.com, an enormous online marketplace, the legal “seller” of a product shipped and sold by a vendor …

Cryptocurrencies' Revolt Against The Bsa: Why The Supreme Court Should Hold That The Bank Secrecy Act Violates The Fourth Amendment, Jeremy Ciarabellini

Seattle Journal of Technology, Environmental, & Innovation Law

The Bank Secrecy Act (BSA) creates a Hobson’s choice: one must either struggle to function in modern society without a bank account or submit to financial surveillance by the government. Both choices result in drastic consequences.

Regulatory Approaches To Consumer Protection In The Financial Sector And Beyond: Toward A Smart Disclosure Regime?, Nydia Remolina, Aurelio Gurrea-Martinez, Yvonne Ai-Chi Loh, David R. Hardoon

Centre for AI & Data Governance (2019-2025)

Traditionally, consumer and data protection policies evolved from issues of consent and information disclosure. The purpose of these regulatory approaches is the protection of consumers by reducing some contracting failures, such as asymmetries of information and a lower bargaining power, especially in transactions involving complex issues such as financial products and sensitive personal data. In the past, regulators have responded to privacy and consumer protection by adopting what this paper refers to as an “imperfectly informed regime”, in which consumers do not receive full information about the risks associated with their decisions, even if they are still protected through a …

Untangling The Privacy Law Web: Why The California Consumer Privacy Act Furthers The Need For Federal Preemptive Legislation, Jordan Yallen

Loyola of Los Angeles Law Review

No abstract provided.

Theory Of The Nudnik: The Future Of Consumer Activism And What We Can Do To Stop It, Yonathan A. Arbel, Roy Shapira

Articles

How do consumers hold sellers accountable and enforce market norms? This Article contributes to our understanding of consumer markets in three ways. First, the Article identifies the role of a small subset of consumers-the titular "nudniks"-as engines of market discipline. Nudniks are those who call to complain, speak with managers, post online reviews, and file lawsuits. Typified by an idiosyncratic utility function and certain unique personality traits, nudniks pursue action where most consumers remain passive. Although derided in courtrooms and the court of public opinion, we show that nudniks can solve consumer collective action problems, leading to broad market improvements. …

An Essay On The Quieting Of Products Liability Law, Aaron D. Twerskii

Cornell Law Review

For several decades, courts and commentators have disagreed as to whether the standard for liability in product design defect cases should be based on risk-utility tradeoffs or disappointed consumer expectations. Although a strong majority opt for risk-utility a significant minority of courts adopt the consumer expectations test. This Essay contends that as a practical matter in jurisdictions that allow for recovery in design defect cases on a consumer expectations theory, plaintiffs introduce a reasonable alternative design as the predicate for recovery. In fifteen of the seventeen states that allow recovery based on consumer expectations the author could not find a …