Consumer Law & Policy Blog

538 on the rising percentage of retired Americans

...and what it means for the economy.

The good news? The economic rebound is permitting more Americans to retire.

The bad news? That's generally not a good thing for an economy.

Our best hope to fix the problem? Immigration.

Read more here.

Jon Stewart on Wall St accountability vs. Occupy Wall St accountability

Funny and sad in equal measures. Here.

CFPB: Rising mortgage debt threatens retirement security for millions of older Americans

The Consumer Financial Protection Bureau today issued this snapshot report on older Americans' mortgage debt. The agency's introduction provides a nice overview:

Rising mortgage debt is threatening the retirement security of millions of older Americans. In general, older consumers are carrying more debt, including mortgage, credit card, and even student loan debt, into their retirement years than in previous decades. Mortgage debt, the largest debt that older consumers carry, is the key driver of this trend. Today, compared to a decade ago, fewer older homeowners own their home outright. For many of the roughly 4.4 million retired homeowners with mortgage debt, making monthly mortgage payments on top of paying other monthly expenses can be a hardship.

Every American Should Read (Or Better Yet, Listen to) Elizabeth Warren's Book

by Jeff Sovern

I've been listening to the audio version of Elizabeth Warren's new book, A Fighting Chance (you can read and listen to a short excerpt here).  Over at PrawfsBlawg, Jennifer Bard wrote that law professors should read the book. I would go much further: anyone who cares about our country should read (or better yet, listen to the audio version, read by the Senator herself) to this book.  It is extraordinary.

I've been a law professor for more than thirty years, and my father became a law professor before I was born, so I've been around law professors since I was in the womb.  I've obviously read a lot of things written by law professors. This is the most moving writing authored by a (now-former) law professor I've ever encountered.  I never thought a law professor's writings could bring me to tears. But this book did.

Senator Warren blends her personal story with the policy issues and politics that in recent years have consumed her life. Often it feels as if the politics and policy are part of her personal story, and her policy views are clearly informed by her personal experiences.  As is widely known (this viral video is only one example), she has a gift for presenting complex materials in a way that is accessible and affecting. That gift is on display throughout the book, whether she is discussing her personal life, the machinations in Washington, her research, or policy issues. As someone who has tried his own hand at writing op-eds, or even just on this blog, I envy that gift. Senator Warren knows how to tell a story.

Senator Warren makes a persuasive case for why families in this country need more help than they are getting. She also explains why they aren't getting it. The book talks about the people who have fought for her. I can see why they do so.

My only complaint so far (I am not done with the book, but I didn't want to wait any longer to post something about it) is her view of consumer disclosure. When she talks about the Consumer Financial Protection Bureau, the Senator's goal appears to be that information be disclosed, so that consumers will have an opportunity to know what they are agreeing to when the sign contracts. That is important, but disclosures that consumers don't read do little good.  My view is that law-makers should focus on getting consumers information in a way they will use, rather than just getting them information that they may (and probably do) ignore.  The CFPB seems to focus on disclosure rather than whether consumers use the disclosures, at least with the new TILA-RESPA disclosures. 

In any event, it is an excellent book. Readers of this blog should find it of great interest.

Yelp Response to Accusations of Pay for Play

by Paul Alan Levy  

Yelp appears to be worried enough about the insistent campaign of businesses like Hadeed Carpet Cleaning that have received negative Yelp reviews to tell the press that they get punished for refusing to advertise that it is now including on every page of business reviews this line: "Your trust is our top concern, so businesses can't pay to alter or remove their reviews.  Learn more", linked in turn to this response.

Should Aspen Publishers’ casebooks be boycotted?

by Paul Alan Levy    

Law professor Josh Blackman reports that Aspen Publishers is promoting the next edition of the property law casebook he assigns pursuant to a license scheme apparently intended to undermine the application of the first-sale doctrine to books: students must agree to return the casebook at the end of the class, even if they have thoroughly marked it up with notes and highlighting.  The apparent purpose is to argue that the publisher retained title in the book and hence it is not subject to the first-sale doctrine.  Will Aspen try to enforce this against the students, or only against companies that maintain a secondary market in used textbooks?

The best response – for law faculty to stop assigning the casebook.

UPDATE:

Maryland's James Grimmelman has started a faculty petition on Change.org in which faculty pledge to stop assigning Aspen books.  He has also posted a more detailed legal analysis here: 

Still Time To Register

For the past 16 years, the Center for Consumer Law at the University of Houston Law Center has been presenting “Teaching Consumer Law,” the only conference specifically designed for those who teach or would like to teach consumer law.  I thought you might be interested in the latest edition of the Conference, subtitled, “In a Virtual World.”

The Conference will be held in Santa Fe New Mexico, May 30-31. There will be more than 30 speakers, from both the academy and the bar, discussing a wide variety of topics. For more information, here is the brochure and registration form. Hotel rooms are reserved only through this Friday, May 9th. 

If you do plan on attending, I suggest you fly into Albuquerque rather than Santa Fe. It probably will be less expensive and there are more connections. If you want to rent a car it is an easy drive of less than one hour, or you can get an inexpensive shuttle to Santa Fe that goes to the hotel. Hotel reservations can be made by calling the Santa Fe Hilton Hotel directly at 505.988.2811 or General Reservations at 800.HILTONS (800.445.8667). You must identify yourself as being with the “Teaching Consumer Law Conference,” group code UHL to receive the discounted rate.  

For more information, feel free to contact Dean Richard Alderman, Director of the Center for Consumer Law, at alderman@uh.edu, or 713-825-6068.

Encouraging Section 230 Immunity Argument in the Sixth Circuit

by Paul Alan Levy

Last week the Sixth Circuit held oral argument in Jones v. TheDirty.com, a case where a high school teacher and pro-football cheerleader sued an online web site for hosting comments asserting that she had sex with several football players and speculating about whether she had contracted sexually transmitted diseases.   The trial court had rejected TheDirty’s motion for summary judgment based on section 230 immunity, based in part on the fact that the site’s proprietor often added his own comments to posts, some of which implied acceptance of the truth of the statements, and based in part on the theory that, given the site's name ancd certain comments by its proprietor, the whole purpose of the site was to attract salacious postings.  After the first trial resulted in part on a verdict for the site’s host and in a hung jury, a second trial produced a six-figure verdict for the plaintiff.

In several past posts, I have discussed the importance of section 230 immunity as a guarantee for the system of online speech, encouraging hosts to edit or reject offensive material while ensuring that the costs and risks of litigation  do not allow anybody who can afford to hire a lawyer to send a demand letter — or, indeed, anybody who sends even a pro se threat of litigation — to get criticisms removed from the Internet through a heckler’s veto.   This appeal was worrisome both because the Sixth was one of the few circuits that had not yet addressed the issue of section 230 immunity, and because the facts appeared to be so challenging (for example, one of the posts at issue in the litigation was adorned by the host’s comment “Why are all high school teachers freaks in the sack?”).

Solove & Hertzog on the FTC and Privacy and Security Duties for the Cloud

Daniel J. Solove of George Washington and Woodrow Hartzog of Samford's Cumberland Law School and Stanford Law School's Center for Internet and Society have written The FTC and Privacy and Security Duties for the Cloud, 13 BNA Privacy & Security Law Report 577 (2014). Here's the abstract:

Increasingly, companies, hospitals, schools, and other organizations are using cloud service providers (and also other third party data service providers) to store and process the personal data of their customers, patients, clients, and others.  When an entity shares people’s personal data with a cloud service provider, this data is protected in large part through a contract between the organization and the cloud service provider.  In many cases, however, these contracts fail to contain key protections of data.  Because the consumer is not a direct party to these contracts and often cannot even have access to these contracts, the consumer is often powerless, and the consumer’s interests are often not adequately represented.  

In this short essay, we argue that there is a remedy in Section 5 of the Federal Trade Commission (FTC) Act that prohibits unfair and deceptive trade practices.  Certain key cases from the emerging body of FTC enforcement actions on data protection issues can be read together to create a double-edged set of duties – both on the organizations contracting with cloud service providers and on the cloud service providers themselves.  Not only does an organization owe a duty to consumers to appropriately represent their privacy and data security interests in the negotiation, but cloud service providers have an obligation to the consumer as well, and cannot enter into contracts that lack adequate protections and controls.

 

Congratulations to CL&P Blog contributor Paul Bland, new Executive Director of Public Justice

Read about it here.