Consumer Law & Policy Blog

What Consumer Advocates Can Learn From the NRA

by Jeff Sovern

A few weeks ago, the New York Times ran an op-ed by Georgetown Law Professor David Cole, titled What Liberals Can Learn From the N.R.A. Consumer advocates who seek to change the law would find the entire piece worth reading, but I was particularly struck by one paragraph (which is self-serving, both when written and quoted by a law professor):

The N.R.A. also enlisted the academy. Beginning in the 1980s, it offered grants and prizes designed to encourage scholarship that buttressed its view of the Second Amendment. With N.R.A. assistance, legal scholars transformed the academic understanding of the Second Amendment, so that by the time the Supreme Court ruled in Heller, the dominant view in the legal literature supported an individual right to bear arms. Justice Antonin Scalia’s majority opinion closely tracked that scholarship.

As I have noted before on this blog and elsewhere, I am often disappointed by how small the community of consumer law professors is.  About two-thirds of US law schools offer neither a doctrinal course nor a clinic on consumer law, despite the significance of the subject.  Many elite schools, from which law professors tend to come, don't offer the course.  As a result, few professors write on consumer law, and students who might otherwise be inspired to write about the subject are not introduced to it.  Consumer advocates would probably help their advocacy by mimicking the NRA and offering even more grants than they already do and especially prizes (indeed, the only prize I know of for consumer law scholarship is conferred by the American College of Consumer Financial Services Lawyers).   I don't speak only of law schools: some universities offer consumer science programs that research consumer issues which sometimes intersect with legal issues; my impression, however, is that the number of these programs has declined in recent years.  Consumers and the country would be better off if the academe devoted more attention to consumer law and less to subjects that affect fewer Americans.

The Chilling Effect of Threats to Sue for Defamation

by Paul Alan Levy

Ted Frank’s comment on my post yesterday about the y-y-yuge sanction imposed on Donald Trump for bringing a frivolous defamation claim hit the nail on the head – this was an April Fools Day prank.

But as Eric Turkewitz, who created the concept and posted the first blog on the subject, explains today, it was a prank with a serious substantive point — blustering threats to bring libel suits that cannot possibly succeed can have a chilling effect, just as the actual bringing of suits demanding millions of dollars in damages can have. It is one reason why we need anti-SLAPP statutes.

And the chilling effect is shown, in part, by the fact that a number of free speech litigators / bloggers who would have come in on the joke in the past sat out this time.  Maybe that’s because they just didn’t think it was funny, but I know for a fact that some of them (no names mentioned — they know who they are!) were spinning fantasies about how Trump might fashion a non-frivolous defamation claim and then throw his millions of dollars at litigating the cases to the bitter end.  And New York, where Trump lives and hence would likely sue on the assumption that Calder v. Jones allows him to do so, has a weak anti-SLAPP statute that would have provided no protection – that’s why Dan Snyder originally sued the Washington City Paper there. 

These threats do have an impact.  We need a statute.

A living wage calculator

Think California's proposed minimum wage is too high? Other states too low?

Consider this calculator for what constitutes a living wage, by state, created by an MIT professor.

Education Dep't rehires debt collectors fired for misleading consumers

As UPI reports:

Coast Professional and National Recoveries were among the five private collection agencies terminated in February 2015 after they made "materially inaccurate representations" to borrowers in default, the Education Department said. But in the final few months of 2015, Coast Professional was given an additional $863.5 million worth of student loans, and National Recoveries added $679.8 million for collections.

Here's the story.

Has This Judge Trumped the Donald?

by Paul Alan Levy

Could a $500,000,000 sanction for frivolous litigation be large enough that even Donald Trump would start taking the First Amendment seriously, and stop trying to use the courts to suppress lawful speech that he doesn’t like?

In the final analysis, that is the issue raised by Erik Turkewitz’ blog post today.  And considering how anxious Donald Trump has appeared to secure changes in the New York Times actual malice standard, and his proclaimed willingness to file a suit against a critic, knowing that the suit is unwinnable, just for the pleasure of “mak[ing] his life miserable, which I’m happy about”, it is good to see from Eric Turkewitz’s blog that a New York judge has finally had the guts to stand up against him. 

The case involved Trump’s lawsuit against Univision — a Mexican-owned Spanish-language media giant — for backing out of its connection with Trump’s beauty contest after he made hateful remarks about Mexicans.  Among the claims in the litigation was one for defamation, based on an Instagram message that placed a photograph of the Charleston church mass-shooter Dylann Roof next to a photo of Trump, with the implication that their racism was comparable.  Certainly the suggestion that committing mass murder with racist motives is comparable to appealing to racism to promote a candidacy for high office reflects an opinion that is open to debate, but it is plainly an opinion and in our system of free expression, “there is no such thing as a false idea.”   So the defamation claim, unlike the contract claim, was plainly frivolous.  (We have helped defendants with rather less resources that Univision stand up against Trump’s legal blustering.) 

The suit was removed from state to federal court and ultimately dismissed there.  New York’s anti-SLAPP law is both narrow and weak,  but in the opinion linked from Turkewitz’ blog post, a state court judge with the rather striking name of Lester Bruce Sullivan decided to impose sanctions for frivolous litigation.  And to make sure that the sanction would be felt, and thus have deterrent impact on Trump, the judge considered Trump’s reported declaration of net worth to the FEC, said to have placed it in “excess of $10 billion,” and imposed a sanction of $500,000,000.

Although Trump’s claim to be worth even $9,000,000,000 had been widely questioned, it seems to me that he will have trouble claiming that the judge overstated that number in calculating the appropriate sanction.  It remains to be seen whether he has success on appeal, whether in the Appellate Division or in the court of public opinion.

Study Finds Reading Consumer Contract Terms Lowers IQ, Causes Irritability

Here. Bad news for lawyers.