Consumer Law & Policy Blog

Coordinators

  • Allison Zieve
    Public Citizen Litigation Group
  • Jeff Sovern
    St. John's University School of Law
  • Brian Wolfman
    Georgetown University Law Center and Harvard Law School

Other Contributors

  • Richard Alderman
    University of Houston Law Center
  • Paul Bland
    Public Justice
  • Stephen Gardner
    Consultant
  • Mike Landis
    US Public Interest Research Group
  • Paul Alan Levy
    Public Citizen Litigation Group
  • Scott Nelson
    Public Citizen Litigation Group
  • Ira Rheingold
    National Association of Consumer Advocates
  • Jon Sheldon
    National Consumer Law Center

About Us

www.clpblog.org

The contributors to the Consumer Law & Policy blog are lawyers and law professors who practice, teach, or write about consumer law and policy. The blog is hosted by Public Citizen Litigation Group, but the views expressed here are solely those of the individual contributors (and don't necessarily reflect the views of institutions with which they are affiliated). To view the blog's policies, please click here.

Blogs On Consumer Issues

  • Alabama Consumer Law Blog
  • Arnold & Porter Consumer Advertising Law Blog
  • CAFA Law Blog
  • Caveat Emptor
  • Citizen Vox
  • Consumer Affairs with Sheryl Harris
  • THE CONSUMERIST
  • Credit Slips
  • Home Equity Theft Reporter
  • Fair Arbitration NOW Blog
  • UCL Practitioner
  • U.S. PIRG Consumer Blog

Other Interesting Legal Blogs

  • American Constitution Society Blog
  • Balkinization
  • Concurring Opinions
  • The Conglomerate
  • Electronic Frontier Foundation DeepLinks
  • Empirical Legal Studies
  • How Appealing
  • Legal Theory Blog
  • Mass Tort Litigation Blog
  • Opinio Juris
  • PrawfsBlawg
  • Rebecca Tushnet's 43(B)log
  • SCOTUSblog
  • TortsProf Blog
  • Trademark Blog
  • Truth on the Market
  • The Volokh Conspiracy

Consumer Law & Policy Links

  • AAAP Foundation Litigation
  • American Collectors' Association
  • Americans for Financial Reform
  • American Tort Reform Association
  • American Association of Justice
  • Center for American Progress
  • Center for Justice and Democracy
  • Center for Responsible Lending
  • Center for Science in the Public Interest
  • Center for Study of Responsive Law
  • Consumer Action
  • Consumer Federation of America
  • Consumers Union
  • Electronic Frontier Foundation
  • Electronic Privacy Information Center
  • EU Consumer Policy Page
  • Fair Arbitration NOW
  • Federal Trade Commission
  • International Association of Consumer Law
  • National Association of Consumer Advocates
  • National Association of Consumer Bankruptcy Attorneys
  • National Community Reinvestment Coalition
  • National Consumer Law Center
  • Public Citizen
  • State PIRGs
  • Public Justice (formerly Trial Lawyers for Public Justice)
  • Treasury Department, Regulatory Reform Agenda
  • U.S. Chamber Legal Reform
  • U.S. Public Interest Research Group

« January 2007 | Main | March 2007 »

Sunday, February 25, 2007

More on Payday Loans: The Industry PR Folks Strike Back

    Check out this article in today's Washington Post by Michelle Singletary - - "Payday Loans: Costly Cash."  Among other things, the article discusses a new ad campaign by the Community FinancialPayday Services Association of America, the trade group for the payday loan industry.  Consumer advocates portray the campaign as part of an effort to stop state and federal legislation to curb the industry.  The industry responds that its ads are a charitable "effort to encourage consumers to use payday advances in a responsible manner."  I wonder whether the industry's shareholders are ticked off that their money is being spent to help consumers act responsibly rather than to turn profits.

Posted by Brian Wolfman on Sunday, February 25, 2007 at 10:42 AM in Consumer Legislative Policy, Other Debt and Credit Issues, Predatory Lending | Permalink | Comments (10) | TrackBack (1)

Saturday, February 24, 2007

Ralph Nader: The Movie

Can_nader_el_1    The documentary on the life of Ralph Nader -- An Unreasonable Man -- is opening in cities around the country over the next couple months.  To see a schedule of openings and a raft of information on the movie, go the movie's website.

Posted by Brian Wolfman on Saturday, February 24, 2007 at 10:49 PM in Book & Movie Reviews, Consumer History | Permalink | Comments (0) | TrackBack (0)

New Ninth Circuit CAFA Ruling on Burden of Proof

By Brian Wolfman

In Serrano v. 100 Connect, Inc., No. 06-17366 (Feb. 22, 2007), the Burden_of_proof Ninth Circuit has held that in assessing whether a federal district court should or must decline jurisdiction under the "exceptions" to jurisdiction of the Class Action Fairness Act, the burden is on the party resisting a federal forum to show that jurisdiction is lacking. Three other circuits had earlier come to the same conclusion.

As I discussed in an an earlier post, under CAFA, some cases just don’t meet CAFA’s basic jurisdictional requirements: $5 million in controversy, 100 class members, and minimal diversity. 28 U.S.C. 1332(d)(2), (d)(5)(B). Then there are 28 U.S.C. 1332(d)(3) and (d)(4), the supposed "exceptions" to jurisdiction.  Both have been called exceptions because they allow for remand or dismissal even where the basic prerequisites have been met.  Under (d)(3), the court "may, in the interests of justice and looking at the totality of the circumstances, decline to exercise jurisdiction" based on an evaluation of six factors.  Subsection (d)(4) sets out circumstances in which a district court "shall decline" to exercise jurisdiction. The circumstances in which this category is triggered are complicated and not worth exploring in detail here, but they focus on controversies that are highly localized. To me, the (d)(4) category does not comprise an "exception" to CAFA; it’s just a further, albeit unusual, limit on jurisdiction akin to the $5 million, 100-class-member, and minimal diversity limits.

Continue reading "New Ninth Circuit CAFA Ruling on Burden of Proof" »

Posted by Brian Wolfman on Saturday, February 24, 2007 at 12:46 PM in Class Actions, Consumer Legislative Policy, Consumer Litigation | Permalink | Comments (2) | TrackBack (0)

Thursday, February 22, 2007

AAA Breaks Its Promise Not to Hear Pre-Dispute Arbitrations in Health Care Cases

by Paul Bland

Although most people haven’t heard of it, they have a big stake in the integrity and honesty of the American Arbitration Association (“AAA”). The reason is simple: it’s rapidly gaining more and more power over Americans. More and more big corporations insist that their customers and employees sign mandatory arbitration agreements taking away their right to go to court as a condition of getting goods or services or as a condition of getting or keeping a job. And of the private corporations that are increasingly replacing the American civil justice system, the AAA is the most prominent and largest.

To allay the concerns expressed by many consumers, employees, legislatures and courts, the AAA has repeatedly promised that Americans need not worry about the growing power of arbitrators, because the AAA will purportedly exercise great restraint in the exercise of its power. Alas, talk is cheap.

In a number of public statements over the last four years, the AAA has solemnly promised the public, the media and legislators that notwithstanding any contract agreements to the contrary, it would not handle pre-dispute binding arbitrations in cases brought by medical patients against health care institutions. But, I have just learned of a serious instance where the AAA has quietly broken that widely trumpeted promise. Apparently, the AAA is administering arbitrations in medical cases when it feels like doing so.

Continue reading "AAA Breaks Its Promise Not to Hear Pre-Dispute Arbitrations in Health Care Cases" »

Posted by Public Citizen Litigation Group on Thursday, February 22, 2007 at 06:06 PM in Arbitration | Permalink | Comments (0) | TrackBack (1)

More on First Amendment Challenge to New York Lawyer Advertising Rules

By Brian Wolfman 

This earlier post describes the lawsuit by an upstate New York law firm and Public Citizen to strikeFirstamendment_l down new New York lawyer advertising restrictions on First Amendment grounds.  That post discusses the various constitutional problems with the rules - - which restrict both commercial and non-commercial speech - - and links to earlier posts concerning the rules.  The plaintiffs have now filed their brief in support of a preliminary injunction, which details the new restrictions and the plaintiffs' First Amendment arguments.   

Posted by Brian Wolfman on Thursday, February 22, 2007 at 09:17 AM in Advertising, Free Speech, Intellectual Property & Consumer Issues | Permalink | Comments (0) | TrackBack (1)

Wednesday, February 21, 2007

On the Relevance of Door-to-Door Sale Regulation

by Jeff Sovern Deathofasalesman1

As my co-authors and I worked on our forthcoming casebook, one of the issues we faced was whether door-to-door sales regulations are still relevant and consequently worth covering in the book.   Door-to-door sales were more common in the pre-spam, pre-telemarketing era.  In the end we decided to include materials on door-to-door sales for several reasons, including that such sales still occur; the material permits a general discussion of cooling-off period rules (cooling off periods are the law's principal response to door-to-door sales); it sets up the study of spam and telemarketing rules (e.g., should spam and telemarketing sales be subject to cooling off periods?); and because we thought the reduction in telemarketing generated by the "Do Not Call" list might lead to a resurgence of door-to-door sales.  Today's New York Times has a painful article about youthful door-to-door sellers of magazines which confirms not only that such sales still occur but also suggests that the "Do Not Call" list has indeed increased door-to-door selling.  The article focuses on how managers abuse the sellers and how the industry is largely unregulated.  There's a distressing irony in that:  cooling off periods were adopted to protect consumers from hard sells, but it turns out that the sellers may need more protection than the consumers.

Posted by Jeff Sovern on Wednesday, February 21, 2007 at 05:28 PM | Permalink | Comments (8) | TrackBack (2)

Tuesday, February 20, 2007

Justice Kennedy: Are Judges Abandoning the Bench?

by Paul Bland

Kennedy In a series of decisions dating back many years, Justice Kennedy has proven to be a most reliable vote for those who wish to expand the use of mandatory arbitration in nearly every context in which the question has arisen. In Circuit City v. Adams, 532 U.S. 105 (2001), for example, he just declared as a self-evident truth that mandatory arbitration is cheaper than litigation in court.  Id. at 132 ("Arbitration agreements allow parties to avoid the costs of litigation. . . .").  The Justice did not cite to anything for this proposition, and no wonder, as indeed it is simply untrue in many circumstances. Because arbitrators charge by the hour – unlike judges, whose salaries are paid by the taxpayers and the government – many consumers and employees have been hit with huge bills in order to pursue their claims in arbitration. Justice Kennedy has also spoken favorably about how mandatory arbitration can reduce the "burden to the courts" of litigating employment discrimination cases. (Many civil rights lawyers have expressed frustration to me that the Justice views their lives’ work as a "burden.")

Yet, even Justice Kennedy has apparently found ONE thing about it that he doesn't like: because arbitrators can make a lot more money, arbitration is luring good judges from the federal bench. In recent testimony to the U.S. Senate Judiciary Committee, Justice Kennedy made the following point in support of a pay raise for federal judges:

There are two present dangers to our maintaining a judiciary of the highest quality and competence: First, some of the most talented attorneys can no longer be persuaded to come to the bench; second, some of our most talented and experienced judges are electing to leave it.  In just the past year, two of the finest federal district judges in California have left for higher-paying jobs elsewhere, one in academia and the other in the state judiciary. The loss of these fine jurists is not an isolated phenomenon. Since January 1, 2006, ten Article III judges have resigned or retired from the federal bench. It is our understanding that seven of these judges sought other employment. In 2005, nine Article III judges resigned or retired from the bench, which was the largest departure from the federal bench in any one year. Four of those nine judges joined JAMS, a California-based arbitration/mediation service, where they have the potential to earn the equivalent of a district judge’s salary in a matter of months. My sense is that this may be just the beginning of a large-scale departure of the finest judges in the federal judiciary. It would be troubling if the best judges were available only to those who could afford private arbitration.

Continue reading "Justice Kennedy: Are Judges Abandoning the Bench?" »

Posted by Paul Bland on Tuesday, February 20, 2007 at 06:02 PM in Arbitration | Permalink | Comments (0) | TrackBack (0)

Court Says Using Punitive Damages to "Punish" (for Harm to Others) Is Unconstitutional

by Deepak Gupta

Jurybox_2

About an hour ago, the Roberts Court issued its first decision on the substantive due process limits on punitive damages.  (The case is Phillip Morris v. Williams, which I previously blogged about here.)   For those who believe in the civil justice system as a tool for deterring illegal conduct that harms society, the news today was not good.  Justice Breyer, in an opinion joined by Justices Roberts, Alito, Kennedy, and Souter, framed the question presented and the holding this way:  "We are asked to decide whether the Constitution's Due Process Clause permits a jury to base [a punitive damages] award in part upon its desire to punish the defendant for harming persons who are not before the court (e.g. victims whom the parties do not represent).  We hold that such an award would amount to a taking of property from the defendant without due process."

The dissenters are Ginsburg, Stevens, Thomas, and Scalia, with three separate dissents.  But as usual, it's Justice Stevens who really gets to the heart of the issue--pointing out the novel and unprincipled distinction on which the majority opinion relies:

The majority relies on a distinction between taking third-party harm into account in order to assess the reprehensibility of the defendant’s conduct—which is permitted—from doing so in order to punish the defendant “directly”—which is forbidden. This nuance eludes me. When a jury increases a punitive damages award because injuries to third parties enhanced the reprehensibility of the defendant’s conduct, the jury is by definition punishing the defendant “directly” for third party harm. A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim. Similarly, there is no reason why the measure of the appropriate punishment for engaging in a campaign of deceit in distributing a poisonous and addictive substance to thousands of cigarette smokers statewide should not include consideration of the harm to those “bystanders” as well as the harm to the individual plaintiff. The Court endorses a contrary conclusion without providing us with any reasoned justification.

Posted by Public Citizen Litigation Group on Tuesday, February 20, 2007 at 11:53 AM | Permalink | Comments (0) | TrackBack (0)

Sunday, February 18, 2007

Blogging Away Debt

by Deepak Gupta0218natsubdebt_1


This morning's New York Times has an interesting article on a strange new phenomenon: people who anonymously blog about their personal debt (e.g. Poorer Than You, We're in Debt). The article suggests that, although they're too embarassed to talk about it with their family or friends, these bloggers gain discipline by cataloguing their spending habits and announcing them to the world. For a sampling, click on the image on the right.

Update: Angie Littwin of Harvard Law School read the same article has some extended reflections on the subject at Credit Slips. She observes that "these bloggers have developed a self-control mechanism that aligns perfectly with cutting-edge research in behavioral economics."

Posted by Public Citizen Litigation Group on Sunday, February 18, 2007 at 10:39 AM in Other Debt and Credit Issues | Permalink | Comments (0) | TrackBack (0)

Update on Payday Loan Legislation in Virginia

by Brian Wolfman

I previously reported here that Virginia was poised to enact lenient payday loan legislation without any fee/interest rate cap, after a House committee approved such legislation already passed by the state Senate.  The Washington Post suggests here, however, that, although the full House has now passed the legislation, Governor Tim Kaine may well not sign it without a cap.

Posted by Brian Wolfman on Sunday, February 18, 2007 at 09:00 AM in Consumer Legislative Policy | Permalink | Comments (0) | TrackBack (2)

Older »

Subscribe to CL&P

RSS/Atom Feed

To receive a daily email of Consumer Law & Policy content, enter your email address here:

Search CL&P Blog

Recent Posts

  • My latest paper: Not-So-Smartphone Disclosures
  • Maryland seeking applications for consumer law endowed faculty position
  • FTC issues ANPR on consumer privacy and data security
  • Today at the CFPB
  • Cal Chief Judge calls for stronger oversight of "private judging," after scandal involving JAMS
  • Maybe it's the Chamber that needs to be held accountable: comments on their ad attacking the CFPB
  • Bruckner & Ryan paper compares complaints about fintech and traditional student loan lenders & servicers
  • GOP legislators accuse CFPB of colluding with states, as Kraninger did
  • WSJ: Equifax Sent Lenders Inaccurate Credit Scores on Millions of Consumers
  • Unfairness and Disparate Effects
  • CFPB analysis of potential impacts of medical debt credit reporting changes
  • OCC CFP: THE IMPLICATIONS OF FINANCIAL TECHNOLOGY FOR BANKING
  • Dan Solove gives the pending privacy bill a B+ but pans preemption
  • Paper responds to Wilf-Townsend's Assembly-Line Plaintiffs
  • CFP: Berkeley Consumer Law Conference
  • The National Consumer Law Center is hiring a LITIGATION DIRECTOR
  • WSJ: CFPB working on guidance to force banks to cover more scams on Zelle and similar apps
  • Consumer law and the "major questions" doctrine
  • Will Congress pass an online privacy bill?
  • Distracted driving kills thousands of people every year
  • Chao paper suggests unjust enrichment claims confer standing, even after TransUnion
  • CFPB issues advisory to protect privacy when companies compile personal data
  • Regulators fine BofA $225 million over botched disbursement of unemployment benefits
  • Consumer protection and the Supreme Court's new "major questions doctrine"
  • CFPB moves to reduce fees charged by debt collectors
  • Vijay Raghavan Essay: Shifting Burdens at the Fringe
  • FTC sues Walmart for facilitating money transfer fraud
  • CFPB affirms states' ability to police credit reporting markets
  • Can you solve the mystery of why the Credit CARD Act treats penalty fees differently from penalty interest rates and other fees?
  • CFPB Spring Regulatory Agenda is up and arbitration isn't on it
  • CFP: CFPB consumer finance research conference
  • My Daughter’s @Delta Disaster Story: The Last Chapter (I hope)

Categories

  • Advertising
  • Arbitration
  • Auto Issues
  • Book & Movie Reviews
  • Books
  • CL&P Blog
  • CL&P Roundups
  • Class Actions
  • Conferences
  • Consumer Financial Protection Bureau
  • Consumer History
  • Consumer Law Scholarship
  • Consumer Legislative Policy
  • Consumer Litigation
  • Consumer Product Safety
  • Credit Cards
  • Credit Reporting & Discrimination
  • Debt Collection
  • Federal Trade Commission
  • Food and Nutrition
  • Foreclosure Crisis
  • Free Speech, Intellectual Property & Consumer Issues
  • Global Consumer Protection
  • Identity Theft
  • Internet Issues
  • Law & Economics
  • Other Debt and Credit Issues
  • Predatory Lending
  • Preemption
  • Privacy
  • Student Loans
  • Teaching Consumer Law
  • Television
  • U.S. Supreme Court
  • Unfair & Deceptive Acts & Practices (UDAP)
  • Web/Tech
  • Weblogs

Archives

  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021

August 2022

Sun Mon Tue Wed Thu Fri Sat
  1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30 31