Identity theft awareness week

The FTC will conduct a week of events to raise awareness about the threat posed by tax identity theft, which (it notes) puts thousands of people at risk every year.

Check out the schedule and related educational materials here.

We told state courts that they must obey federal law 200 years ago

That's what it took less than two pages for the Supreme Court to say today to the Idaho Supreme Court in James v. City of Boise.

Under 42 U.S.C. 1988 and many other similar civil-rights-type fee-shifting statutes, a court "may" "in its discretion" award attorney's fees to the prevailing party. Many years ago, the Supreme Court held that "may" means "almost always" when a court considers a fee request from a prevailing plaintiff who vindicated civil rights, but "almost never" when it considers a fee request from a prevailing defendant who defeated a civil-rights claim.

Specifically, the Court held in 1976 that defendants get fees in civil-rights cases only when the plaintiff's suit is "frivolous, unreasonable, or without foundation." The Idaho Supreme Court tried to deviate from this tough-for-prevailing-defendants standard. The Supreme Court said state courts have to obey the Supreme Court's pronouncements on federal law -- and reminded everyone that the Court first said this in 1816.

 

Study of Privacy Policy Vagueness

Joel R. Reidenberg of Fordham, Jaspreet Bhatia and Travis Breaux, both of Carnegie Mellon,and Thomas B. Norton also of Fordham have written Automated Comparisons of Ambiguity in Privacy Policies and the Impact of Regulation. Here is the abstract:

Website privacy policies often contain ambiguous language that undermines the purpose and value of privacy notices for site users. This paper compares the impact of different regulatory models on the ambiguity of privacy policies in multiple online sectors. First, the paper develops a theory of vague and ambiguous terms. Next, the paper develops a scoring method to compare the relative vagueness of different privacy policies. Then, the theory and scoring are applied using natural language processing to rate a set of policies. The ratings are compared against two benchmarks to show whether government-mandated privacy disclosures result in notices less ambiguous than those emerging from the market. The methodology and technical tools can provide companies with mechanisms to improve drafting, enable regulators to easily identify poor privacy policies and empower regulators to more effectively target enforcement actions.

Josuhua Wright & John Yun on the FTC's Unfairness Power and Digital Platforms

Former FTC Commissioner Joshua D. Wright, now of George Mason,  and John M. Yun of the FTC have written Stop Chug-a-Lug-a-Lugin 5 Miles an Hour on Your International Harvester: How Modern Economics Brings the FTC's Unfairness Analysis Up to Speed with Digital Platforms, 6 George Washington Law Review,  2130 (2015). Here is the abstract:

In this Essay, the authors argue that in cases involving digital platforms, the Federal Trade Commission — when alleging unfair acts or practices in violation of section 5 of the Federal Trade Commission Act — must adopt the insights from platform economics and apply them within the legal framework of section 5(n), as informed by the Commission’s Policy Statement on Unfairness. After outlining the development and rise of digital platforms and discussing of the importance of digital platforms to consumers and the marketplace, this Essay sets forth a brief overview of the basic economics of multisided platform markets and points out the key differences between these markets and traditional markets as well as their corresponding implications for consumer welfare. The Essay then describes the evolution of the Commission’s unfairness authority in consumer protection cases — including the statutory requirement that the agency conduct cost-benefit analysis — and examines how the Commission has performed such cost-benefit analyses in recent cases. The Essay critiques the Commission’s decision in the recent Apple case as an example of the potential pitfalls for consumer protection in multisided markets when the Commission conducts a cost-benefit analysis without arming itself with the basic economic insights from platform economics. Untethered from the appropriate economic framework, the Commission’s logic allows it to condemn product design decisions whenever it can imagine an alternative design it believes survives a cost-benefit test. As the number of consumer protection cases involving digital platforms inevitably rise, the authors recommend that the Commission instead apply insights from platform economics within the well-established legal framework of section 5(n) and the FTC Policy Statement on Unfairness.

Must Louis Vuitton at last start paying for its trademark bullying?

by Paul Alan Levy

Over the past couple of weeks, several bloggers, most impressively Rebecca Tushnet,  have published their analyses of a decision by Judge Jesse Furman granting summary judgment dismissing a lawsuit by Louis Vuitton Malletier against a tiny company called “My Other Bag” which produces a line of canvas totes that poke gentle fun at the famous Louis Vuitton handbag design by placing the hand-scrawled words “My Other Bag...” on one side and a photo of the Louis Vuitton “toile” design in which the letters “LV” are replaced by MOB.  Louis Vuitton sued for both dilution and infringement of its mark, as infringement of its copyright, but Judge Furman recognized the apparent parody that made out a defense of fair use; he also held that Louis Vuitton had shown neither dilution (because referring to a a famous mark strengthens the mark’s association with its owner, rather than blurring that association) nor likelihood of confusion as required for a claim of infringement. 

Advice on employee pension benefits

As one mega-brokerage firm puts it, "[f]aced with mounting pension costs and greater volatility, companies are increasingly offering their current and former employees a critical choice: Take a lump sum payment now or hold on to their pension," which would be paid out periodically over the beneficiary's lifetime. The Consumer Financial Protection Bureau has put together a a variety of materials that discuss the relevant considerations in making this choice.

Why is the food industry dead set against warning labels?

That's the name of this column by consumer reporter David Lazarus.

Why did Florida drop standards for infant heart surgery?

Ars Technica asks this question amid concerns that the move may have motivated by contributions from the healthcare company whose poor track record prompted the drafting of standards in the first place:

[A] 2014 medical review and a June 2015 report by CNN, which found that one particular medical facility, St. Mary’s Medical Center and Palm Beach Children’s Hospital, had an abysmal track record for pediatric open-heart surgery—a death rate more than three times the national average. And the two reports found that the facility was failing to meet the now-repealed standards, which include proficiency in performing the surgeries themselves.

The St. Mary’s facility is run by Tenet Healthcare, which coincidentally donated $200,000 to the state’s republicans between 2013 and 2014, including $100,000 to Republican Governor Rick Scott’s political action committee. Those donations were the highest of any Tenet gave to political groups in other states.

Medical professionals are strongly against the repeal of the standards, Ars reports.

Read more here.

Harvard Board of Overseers candidates: make Harvard free

A slate of five candidates running for Harvard's governing board thinks Harvard's endowment is big enough that it can afford to great free tuition for all undergrads. The candidates -- an interesting left-right alliance, including Ralph Nader on the left and four opponents of affirmative action on the right -- also raise the concern that the current admission policy shortchanges Asian-Americans.

The New York Times reports.

DOT to push development of autonomous vehicles

The Times reported last week:

With automakers and technology companies rushing to develop self-driving cars, the Obama administration on Thursday pledged to expedite regulatory guidelines for autonomous vehicles and invest in research to help bring them to market. ...

“We are bullish on autonomous vehicles,” [Transportation Secrecy Anthony] Foxx said. “The actions we are taking today bring us up to speed.”

Read more here. For our prior discussion considering some of the legal issues associated with driverless cars, see here and here.