Consumer Law & Policy Blog

Call For Papers by AALS: Female Perspectives in Commercial and Consumer Law

Jim Hawkins of Houston has asked me to post the following: 

The AALS Section on Commercial and Related Consumer Law is pleased to announce a Call for Papers for its program co-sponsored by the Section on Women in Legal Education during the AALS 2016 Annual Meeting.  The papers from the program will be published in the Columbia Journal of Gender and Law.

Female scholars have made pivotal contributions to the development of commercial and consumer laws and scholarship in the United States, especially in the past few decades.  Not only have specific women’s voices played an important role, but distinctively feminist concerns have engendered changes in legal theory and policy.  This panel will discuss the contributions that specific female legal academics have made to the field (as just a few examples, Elizabeth Warren and Jean Braucher).  Also, it will reflect on how feminist concerns have influenced commercial and consumer law scholarship. Finally, it will also include scholarship focused on women’s experiences with consumer and commercial law.

The Committee invites submissions from scholars interested in presenting at the program and in publishing their papers with the Columbia Journal of Gender and Law.  Two speakers will be selected from this call for papers.  The panel is focused on “female perspectives,” broadly construed. The Section strongly encourages proposals from all genders.   

There is no formal requirement as to the form or length of proposals. Preference will be given to proposals that are substantially complete and to papers that offer novel scholarly insights.

Per AALS rules, only full-time faculty members of AALS member law schools are eligible to submit a paper to a Section’s call for papers. Fellows from AALS member law schools are also eligible to submit a paper but must include a CV with their proposal.  All panelists, including speakers selected from this Call for Papers, are responsible for paying their own annual meeting registration fee and travel expenses.

Deadline: AUGUST 15, 2015. We will make decisions shortly after that date.  Please email submissions, in Word or PDF format, to the Program Committee c/o Jim Hawkins at jrhawkins@uh.edu with “AALS Submission” in the subject line. Before sending, please remove all identifying information from the Word or PDF document.

In honor of Equal Pay week, breaking down the pay gap

Fivethirtyeight.com has a thoughtful analysis this week about "equal pay day," which is the day on which the earnings of the average woman who worked continuously from the beginning of 2014 would catch up to the earnings of the average man who started at the same time but stopped at the end of 2014. (Put another way: the idea of equal pay day is to highlight the fact that a woman, in order to earn as much as a man would earn in one year, would have to work an extra three-and-a-half months.)

Fivethirtyeight points out that this pay gap is not the same at all income levels: the gap is bigger at higher income levels. Check out the useful chart and explanation, here.

Five years after Deepwater Horizon, it could happen again

...is the message of a Public Citizen post yesterday on Buzzfeed, which points to five reasons that a disaster of the same magnitude could recur. The problems, mainly, are a lack of safeguards and the absence of accountability.

Read the whole analysis here.

FTC looks at "sharing economy" and consumer protection

The Federal Trade Commission announced today that it will host a workshop "to examine competition, consumer protection, and economic issues raised by the proliferation of online and mobile peer-to peer business platforms in certain sectors of the economy, often referred to as the sharing economy.” The workshop will take place on June 9 in Washington, DC.

Peer-to-peer platforms, which enable suppliers and consumers to connect and do business, have led to the emergence of new business models in industries that have been subject to regulation. The FTC’s sharing economy workshop will explore how regulatory frameworks can accommodate new sharing economy business models while maintaining appropriate consumer protections and a competitive marketplace.

The FTC's announcement is here.

Bankruptcy Court Shields GM From Ignition Switch Liability

The Bankruptcy Court for the Southern District of New York has issued a lengthy opinion—a whopping 138 pages—holding that General Motors is largely immune from claims based on its pre-bankruptcy conduct, including claims involving faulty ignition switches. The bankruptcy proceedings resulted in the creation of a new company, General Motors LLC (“New GM”), which bought most of the assets of the bankrupt General Motors Corporation (“Old GM”) in July 2009 under the terms of an order of the bankruptcy court that allowed New GM to take the assets “free and clear” of most claims that would impose successor liability for actions of Old GM.

In yesterday’s ruling, the court enforced the terms of its sale order to bar economic loss claims against New GM based on faulty ignition switches in cars sold by Old GM, as well as claims based on accidents that occurred as a result of those switches before July 2009. (The ruling does not apply to claims based on post-sale accidents involving cars made by Old GM, because New GM had agreed to accept responsibility for such claims, together with Old GM’s express warranty, recall, and lemon law obligations, under the sale order.) The result is to relieve GM of significant potential liability for the ignition switch defect.

Jeff Gelles: Is Congress taking wrong direction on data privacy?

Here. An excerpt:

To opponents, the bill might better be named the "Data Insecurity and Breach Hiding Act." Beth Givens, executive director of the Privacy Rights Clearinghouse, says its passage "would be a giant step backward for consumer protection."

Even more emphatic is John Breyault of the National Consumers League.

"Only in Washington would they think about actually reducing existing data-security protections at a time when tens of millions of consumers are being hurt by these massive data breaches at companies like Target, Home Depot, and Anthem," Breyault told me Wednesday after the bill was passed by the Energy and Commerce Committee on a party-line vote.

Will the Industry Attack the Constitutionality of the CFPB's Power to Regulate Arbitration Clauses?

by Jeff Sovern

Marc James Ayers of Bradley Arant Boult Cummings LLP has posted an item, Can the CFPB really prohibit pre-dispute arbitration agreements?  in which he wrote:

[S]hould the CFPB independently decide to adopt regulations limiting or prohibiting the use of pre-dispute arbitration agreements relating to consumer finance, that regulation could be seen as an amendment or partial repeal of the FAA. Those defending such a regulation would argue that by enacting Section 1028 [the statute authorizing the CFPB to regulate or ban arbitration clauses in consumer financial contracts], Congress delegated the power to amend or repeal the [Federal Arbitration Act] in this way.

However, a serious challenge could be raised to such a regulation: While Congress can delegate authority to an administrative agency to adopt rules fleshing out the details of some existing statute (in a manner consistent with that statute), Congress does not have the constitutional authority to empower an agency to repeal existing law at that agency’s discretion. A challenger could argue that authority to repeal existing law is constitutionally vested solely in Congress and cannot be delegated in this manner. The answer to this question may determine whether those in the financial services industry may continue to utilize arbitration provisions in their consumer products.

I'm not a constitutional law person and so have only a limited ability to evaluate this argument.  Ayers didn't cite any authority, leaving unclear the extent to which courts have adopted this limit to Congress's power.  But I have a few quick thoughts: first, the CFPB would not be repealing the FAA if it banned arbitration clauses. The FAA would remain in effect as to commercial contracts and consumer contracts, like cell phones, that did not involve consumer financial contracts. Second, if the CFPB were to ban arbitration waivers, while otherwise allowing companies to use arbitration clauses in consumer contracts, it would be much harder to sustain the argument that the Bureau has repealed arbitration clauses.  It could be argued that the Bureau would simply be interpreting the FAA as not applying to class action waivers (I recognize that Justice Scalia took a different view in Concepcion).  Finally, instead of inserting the provision giving the CFPB the power to regulate arbitration clauses in the US Code where it did, suppose Congress had amended the FAA to provide that the CFPB has the power to exclude certain contracts from the FAA or alternatively regulate what those contracts may say. Doesn't Congress have the power to do that?  Wouldn't that be what Ayers approvingly calls giving "authority to an administrative agency to adopt rules fleshing out the details of some existing statute"?   And how is that different from what Congress did?

Sen. Warren lays out agenda for tackling "unfinished business of financial reform"

The Dodd-Frank law shouldn't be the end of Congress's financial reform efforts, argued Sen. Elizabeth Warren in a speech today at the Levy Economics Institute. Sen. Warren called for specific additional regulatory measures, including the breaking up of big banks, closing regulatory loopholes, imposing tougher punishments for wrongdoing, and limiting the Fed's emergency lending powers to discourage excessive risk-taking, among other proposals.

You can read more about the speech, including some of the details of Sen. Warren's proposals, in American Banker, here. (This site requires a subscription, but I don't have one and was able to reach the story. If you're not, Vox also has more limited coverage of the speech -- focusing on her proposal for stricter accountability for wrongdoing -- here.)

You can read the text of the full speech here.

 

Sen. Ron Johnson's Obamacare challenge fails at 7th Circuit

Affirming a district court's dismissal, the Seventh Circuit held that Sen. Johnson of Wisconsin did not have standing to challenge federal rules implementing Obamacare coverage for members of Congress and their staffs. Johnson's primary argument was that he suffered electoral/reputational injury by being subject to Obamacare coverage. The court rejected that argument because Johnson was free to reject the Obamacare coverage (as he has done):

We . . . conclude that a political figure’s assertion, without more, that the receipt (or option of receiving) a benefit will hurt his or her reputation or electoral prospects is insufficient to establish standing. Respectfully, we do not see how Senator Johnson’s reputation could be sullied or his electability diminished by being offered, against his will, a benefit that he then decided to refuse. He could not be accused of participating in an illegal scheme if he declined to participate.

The decision is here.

What's in your food?

Huffington Post yesterday published a lengthy article about regulation -- or lack thereof -- of food additives by the Food and Drug Administration. The bottom line:

Critics of the system say the biggest concern, however, is that companies regularly introduce new additives without ever informing the FDA. That means people are consuming foods with added flavors, preservatives and other ingredients that are not at all reviewed by regulators for immediate dangers or long-term health effects.

The article is here.