Consumer Law & Policy Blog

Alliance for Justice Film: Lost in the Fine Print, on Arbitration Clauses

You can watch the trailer here.

California bans single-use plastic bags at supermarkets and other retail outlets

As the NYT explains, "Paper bags and reusable plastic bags will be available at checkout counters for a 10-cent fee designed to prod shoppers to remember their own reusable bags, and to reduce the number of plastic bags that end up clogging rivers, snagged on trees or taking up space in landfills." The oddly-named "American Progressive Bag Alliance" (is there anything progressive about it, other than it wants to appeal to a Democratic electorate?) vows to fight the measure. Here's the whole NYT story.

Federal judge wants to bury summary judgment for many reasons, but especially because it harms employment-discrimination plaintiffs

Yep, that's the topic of Essay: From the 'No Spittin', No Cussin' and No Summary Judgment' Days of Employment Discrimination Litigation to the 'Defendant's Summary Judgment Affirmed Without Comment' Days: One Judge's Four-Decade Perspective by U.S. District Judge Mark W. Bennett. Here is the no-nonsense abstract:

Nearly seventy-five years after its birth, the time has come to bury summary judgment. The funeral should be swift, dignified, and joyous. The autopsy would reveal that the cause of death was abuse and overuse by my federal judge colleagues. Summary judgment abuse and overuse occurs in all types of cases, but is especially magnified in employment discrimination cases. This problem is exacerbated by the daily ritual of appellate courts affirming summary judgment grants to employers, often without comment, at a rate that far exceeds any other substantive area of federal law. These beliefs are based on my four-decade career in employment discrimination as a trial and appellate lawyer (for both employees and employers), adjunct law professor, author, speaker, federal magistrate judge, and district court judge. Unfortunately, my colleagues have become increasingly unfriendly to plaintiffs’ employment discrimination claims. I believe there are six primary reasons for this “unfriendliness” or what many scholars have observed as “hostility”: 1) too many frivolous employment discrimination lawsuits; 2) an overworked federal judiciary; 3) increased sophistication of employers; 4) increasingly subtle discrimination; 5) implicit bias in judicial decisions; and 6) a shift among judges from trial judging to case managing. If I were anointed Grand Poobah3 of federal civil procedure for a day, my first act would be to eliminate summary judgment — at least for a five- to ten-year experimental period. The time has come to recognize that summary judgment has become too expensive, too time-consuming for the parties and the judiciary, and too likely to unfairly deprive parties — usually plaintiffs — of their constitutional and statutory rights to trial by jury. I am willing to throw out the baby with the bathwater because the culture of unjustly granting summary judgment is far too ingrained in the federal judiciary to reverse course. There is simply no empirical evidence that summary judgment is efficient or fair. Failing elimination of summary judgment, dramatic modifications to Rule 56 of the Federal Rules of Civil Procedure should be made to help eliminate its disparate and unfair impact.

Is the "economic recovery" really a continuing recession for most Americans?

That's what the economic data suggest, at least the data through 2012. After reproducing what Matthew Yglesias calls the most important chart about the American economy you'll see this year, Yglesias explains:

For a long time, most of the gains from economic growth went to the bottom 90 percent of the income distribution. And, after all, the bottom 90 percent includes the vast majority of people. Since 1980, that hasn't been the case. And for the first several years of the current expansion, the bottom 90 percent saw inflation-adjusted incomes continues to fall.

Yglesias goes on to note that "[t]he data series ends in 2012 and we don't know how long the expansion will last, so that negative income trend may evaporate before all is said and done."

The chart was produced by economist Pavlina Tcherneva.

 

WaPo: Londoners accidentally pay for free Wi-Fi with a firstborn, because no one reads anymore

Here. HT: Mary Graffam.

Department of Defense Proposes Military Lending Act Regulations to Protect Soldiers

The Times has the story under the headline Tougher Shield for Soldiers Against Predatory Lenders.  The proposed regulation closes loopholes like these described in the Times story:

The law set a 36 percent interest rate cap on a range of high-cost loan products. But the protections applied to a narrow sliver of loans, covering only loans for up to $2,000 that lasted for 91 days or fewer. It also covered auto-title loans with terms no longer than 181 days. To get around the restrictions, some lenders simply altered their products to evade the restrictions. Some offered loans for just over $2,001, or for periods that were just over 181 days.

Forbes on Class Actions

Forbes last week had this article on class action cases. The article is surprising for its overall favorable treatment of the topic, given that, as the article states, "[t]hese sorts of lawsuits aren’t our cup of tea here at Forbes." An interview with Jonathan Selbin at the law firm Lieff Cabraser gave the reporter a different perspective.

Housing first

Check out an illuminating New Yorker commentary about the success of government programs providing homes for homeless people. Many policy approaches to homelessness assume that society should help homeless people get other aspects of their lives in order before they transition to permanent housing. That’s the wrong order, argues the New Yorker’s James Surowiecki, with some examples to support his view.

Brescia & Martin on Local Government Responses to Underwater Mortgages

Raymond H. Brescia and Nicholas M. Martin, both of Albany have written The Price of Crisis: Eminent Domain, Local Governments, and the Value of Underwater Mortgages, forthcoming in 24 Temple Political & Civil Rights Law Review (2014).  Here's the abstract:

 

Governments at all levels in the U.S. have deployed a range of tactics to address some of the most pernicious effects of the Financial Crisis of 2008: namely, a loss of trillions in homeowner equity as well as the growth of the prevalence of underwater mortgages, where the outstanding principals on the mortgages exceed the value of the underlying properties.  Among other tactics for addressing such impacts, local governments have begun to explore whether it is wise and legal to use the power of eminent domain to seize distressed home mortgages.  This Article attempts to situate this approach to such mortgages within the larger economic, legal and policy context to determine whether this approach has a sound basis in law and policy.  To do this, we deploy the tools of Comparative Institutional Analysis to assess the potential viability of using eminent domain to seize underwater mortgages.  In doing so, we review the wide-ranging efforts of governments at all levels in the United States to deal with the economic effects of the Financial Crisis of 2008.  We look at the relative success of these different tactics used by these governmental entities — from ex ante regulatory approaches to ex post law enforcement and civil litigation strategies — to assess the most effective tools available to remedy the economic and social problems posed by distressed mortgages.  We then determine whether the use of eminent domain by localities is consistent with those governmental responses to the fallout of the Financial Crisis that have proven effective in responding to some of its worst impacts: here, the loss of homeowners’ equity in their homes and the prevalence of underwater mortgages.

In carrying out this analysis we ask, and attempt to answer, five key questions.  First, are local governments appropriate actors to address the lingering problem of underwater mortgages?  Second, what has been the relative success of the range of tactics that governments at all levels have used to address underwater mortgages, including law enforcement strategies and legislative and regulatory measures?  Third, assuming local governments are appropriate actors to address this problem, how should localities and, if necessary, courts, value underwater mortgages in the context of condemnation proceedings: i.e., what is the appropriate amount of compensation that localities should pay mortgagees and other lienholders when seizing underwater mortgages?  Fourth, what are some strategies local governments can use to find the resources necessary to finance a program that would seize underwater mortgages and, in effect, purchase them from mortgage holders?  Finally, what are some potential down-side risks to local governments taking these actions?  This review concludes not only that local governments are appropriate actors to address underwater mortgages, but also that ex post legal tools — such as eminent domain — are appropriate and effective techniques to use to address the fallout from the Financial Crisis of 2008, particularly its impact on homeowners.  It also finds that the just compensation due holders of distressed, underwater mortgages, should governments seek to seize them by eminent domain, should be roughly sixty percent of the unpaid principal balance on those mortgages.

Michael Lewis: Fed Tapes Show Regulators Controlled By Banks

Michael Lewis at Bloomberg View reports on a This American Life story on 46 hours of tapes secretly recorded by a Fed employee embedded at Goldman Sachs.  An excerpt from Lewis's story:

* * * In meetings, Fed employees would defer to the Goldman people; if one of the Goldman people said something revealing or even alarming, the other Fed employees in the meeting would either ignore or downplay it. For instance, in one meeting a Goldman employee expressed the view that "once clients are wealthy enough certain consumer laws don't apply to them." After that meeting, Segarra turned to a fellow Fed regulator and said how surprised she was by that statement -- to which the regulator replied, "You didn't hear that."

* * *
You sort of knew that the regulators were more or less controlled by the banks. Now you know.