Consumer Protection Law Commons^™

Products Liability And The Internet Of (Insecure) Things: Should Manufacturers Be Liable For Damage Caused By Hacked Devices?, Alan Butler

University of Michigan Journal of Law Reform

While the application of products liability to insecure software is a frequently-discussed concept in academic literature, many commentators have been skeptical of the viability of such claims for several reasons. First, the economic loss doctrine bars recovery for productivity loss, business disruption, and other common damages caused by software defects. Second, the application of design defects principles to software is difficult given the complexity of the devices and recent tort reform trends that have limited liability. Third, the intervening cause of damage from insecure software is typically a criminal or tortious act by a third party, so principles of causation …

Consumer Litigation Funding: Just Another Form Of Payday Lending?, Paige Marta Skiba, Jean Xiao

Vanderbilt Law School Faculty Publications

This article provides a side-by-side comparison of payday lending and consumer litigation funding in order to aid policymakers. Funding has similarities with payday lending because they are both alternative financial services, involve high interest rates, and cater to customers who need money for living expenses. However, they differ in ways that regulators should recognize. Many justify bans on payday lending by pointing to the fact that millions of borrowers every year are getting stuck in an inescapable cycle of interest payments. While legal finance has real costs, funding’s nonrecourse nature prevents consumers from getting stuck in a cyclical repayment of …

Accessible Credit, Sustainable Credit And The Federal Housing Administration, David Reiss

Cornell Law Faculty Publications

The secondary mortgage market stands on three legs. The first leg, created in the early 1930s, is made up of government instrumentalities like the Federal Housing Administration (the FHA) and the Government National Mortgage Association (Ginnie Mae). The second leg, created in the 1930s, but taking off in the 1970s, is made up of public/private hybrids like the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac). The third leg, created in the 1970s, but taking off in the 1990s, is the “private label” market, which is made up of private companies that package …

Antitrust And Intellectual Property: A Brief Introduction, Keith N. Hylton

Faculty Scholarship

Intellectual property law and antitrust have been described as conflicting bodies of law, and the reason is easy to see. Antitrust law aims to protect consumers from the consequences of monopolization. Intellectual property law seeks to enhance incentives to innovate by granting monopolies in ideas or expressions of ideas. The purpose of this chapter is to explore the purported conflict between antitrust and intellectual property. The chapter is largely descriptive, and focuses on current or developing litigation rather than historical controversies. Many of the modern examples of conflict can be attributed to problems of classification.

“Safe Harbor” On The Rocks: Ttb Label Approval For Beer, Wine, And Spirits, And The Uncertain Status Of The “Safe Harbor” Defense, Michael Mercurio

Notre Dame Journal of International & Comparative Law

This Note examines the U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB)’s label review process and the judicial split regarding the “safe harbor” doctrine in the context of alcoholic beverage labels. This Note observes that the judicial split is a result of the tension between two conflicting priorities stemming from the TTB’s purpose and identity: on one hand, courts apply Chevron deference to the TTB as a federal agency enforcing federal law, but on the other hand, courts aim to uphold the central purpose of the Federal Alcohol Administration (FAA) Act—protecting consumers from misinformation. Ultimately, this Note, by examining …

Ispy: Threats To Individual And Institutional Privacy In The Digital World, Lori Andrews

All Faculty Scholarship

What type of information is collected, who is viewing it, and what law librarians can do to protect their patrons and institutions.

America's Consumer Financial Sheriff And The Horse It Rides Are Under Fire, David Reiss

Cornell Law Faculty Working Papers

Dodd-Frank implemented regulations that work very well in the consumer credit markets. It created a regulator, the CFPB, that has been very effective at keeping the bad guys out of those markets. The Financial CHOICE Act will seriously weaken the CFPB. It will gut the Consumer Financial Protection Bureau and return us to the Wild West days of the early 2000s where predatory lenders could prey on the elderly and the uneducated, knowing that there was no sheriff in town to stop ‘em.

Who Will Protect The Consumers Of Trademarked Goods?, James Astrachan

University of Baltimore Law Review

Federal and state law recognizes multiple forms of intellectual property, including patents,1 copyrights,2 trademarks,3 and trade secrets.4 Alleged violations of patents and copyrights are required by statute to be litigated in the federal courts.5 Trademark rights can arise under the Federal Lanham Act6 or state law.7 Trademark infringement can be litigated in state or federal courts.8 Trade secrets arising under state statutes are litigated in state courts unless diversity jurisdiction exists and is pled.9

Infringement of intellectual property in the case of patents arises when a patented invention is used, manufactured or imported into the United States without authority of …

Looking Backward, Moving Forward: What Must Be Remembered When Resolving The Right To Be Forgotten, Katherine Stewart

Brooklyn Journal of International Law

In May 2014, the European Court of Justice decided Google Spain v. AEPD and González and granted citizens the right to be forgotten, rather, the right to request any search engine offering services to European consumers to remove certain results displayed after a search of a citizen’s name. This decision has also resulted in an ongoing battle between Google and the Commission Nationale de l’Infomatique et des Libertés (CNIL), France’s data protection authority. The CNIL believes that Google must apply the right to be forgotten to all domains worldwide, including Google.com. Google, however, has been reluctant to do so, given …

Commercial Deception By Anti-Vaccine Homeopathic Websites: A Consumer Protection Approach, Donald C. Arthur

North Carolina Central University Science & Intellectual Property Law Review

No abstract provided.

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 …