How the New US News Scholarly Impact Ranking Could Hurt Niche Subjects, Like Consumer Law

by Jeff Sovern

There's been a lot of talk among law professors about the US News plan to measure faculty scholarly impact in part by citations to faculty scholarship (see here for a blog post citing to commentary).  While for now US News says it will not incorporate the citation rankings into its general law school rankings, US News may in the future replace the faculty reputation measure to some extent with a measure of how frequently professors are cited.  That could create disturbing incentives for faculty hiring and retention, as well as affect what professors write about. 

To be more concrete, imagine that a law school is hiring a new professor and has two candidates.  One candidate writes about criminal law and the other writes about consumer law.  The law school wants to maximize its ranking, and so wants to hire the candidate whose work will be cited more.  The universe of people writing scholarly articles about criminal law is much larger than the universe of professors writing about consumer law, and so, all other things being equal, the criminal law professor is likely to rack up more citations and so help with the school's ranking more.  How do we know more people write about criminal law?  I did a search for "consumer law" on SSRN and got 637 hits. "Criminal law" by contrast elicited 7,867 hits, or more than a dozen times as many. Every law school offers criminal law courses, probably all have a full-time professor teaching in the area, and many have one or more professors writing in the area. But as of 2014, only about a third of law schools had a consumer law course of one sort or another (yes, I need to update that), and many of the courses were taught by adjuncts who have a day job and so are unlikely to find time to write about consumer law.  Fewer professors writing in an area means fewer people likely to cite your work. And so that means hiring the consumer law scholar could hurt your ranking as compared to hiring the criminal law professor. It also means that those seeking to become law professors should write in widely-taught areas to make themselves more attractive to law schools.

Now maybe you're thinking that even within broad areas like criminal law, professors are apt to specialize when it comes to writing and so as a practical matter writing about a consumer law topic is no different than writing about a criminal law topic. So let's compare the number of papers on SRRN in a couple of specific areas within criminal law and consumer law.  Homicide drew 767 hits while "mens rea" got 479 hits. "Debt collection" elicited 179 hits while "credit reporting" got 135.  Those differences are less dramatic, but the number of criminal law hits are still multiples of the consumer law hits. No doubt SSRN is an imperfect measure of the amount of scholarship in a particular area, but it would have to be off by a lot to make those differences insignificant. It makes intuitive sense that a subject that is taught at fewer law schools will be written about less--and so generate fewer citations. 

This isn't just bad for consumer law scholars. It's also bad for consumer law, and indeed any subject that isn't taught at all or nearly all law schools.  If you think, as I do, that scholarship is valuable, and law schools stop producing consumer law scholarship because they stop hiring consumer law professors, then society will have lost something. Society will have gained instead more articles about widely-taught subjects, but surely the marginal value of yet another article on criminal law is less than the marginal value of an article in an area less traveled.

 

Robocalls, the TCPA, and Professional Plaintiffs

by Jeff Sovern

The next edition of our casebook will have a lot more about robocalls.  According to a letter from the attorneys general of all 50 states dated yesterday, robocalls and telemarketing calls are the top source of consumer complaints at many AG's offices.  The Telephone Consumer Protection Act, which outlaws some robocalls, also offers some interesting lessons about consumer lawmaking.  The TCPA provides for statutory damages of $500 for each call, and even that can be tripled for willful and knowing violations. That brings us to Stoops v. Wells Fargo Bank, 197 F. Supp. 3d 782 (W.D. Pa. 2016).  Stoops had purchased at least 35 cell phones. She carried the phones about with her, waiting for them to ring with illegal calls. She had filed at least 11 TCPA cases and sent at least twenty pre-litigation demand letters. Two of plaintiff’s numbers had previously been assigned to customers of Wells who had defaulted on loans and consented to receiving Wells auto-dialed and recorded calls. After Wells made numerous such calls to the numbers, plaintiff sued Wells under the TCPA.  Plaintiff testified that she was bringing the lawsuits as a business. The court granted summary judgment for defendant on the ground that plaintiff had not suffered an actual injury and therefore lacked standing.

There is something quite distasteful about professional plaintiffs like Ms. Stoops. It's hard not to cheer at her getting her comeuppance. Stoops stooped to conquer (sorry). On the other hand, would the same conduct have been objectionable if the FCC or a state AG had engaged in it?  Law enforcement agencies routinely engage in stings. Consumers are given the right to bring claims under consumer protection statutes like the TCPA because we need more enforcement of the law than the government can supply. Such plaintiffs are even said to serve as private attorneys general. So didn't she do exactly what the law contemplates? Did she lose because of her honesty in testifying that she was suing under the TCPA as a business?  What else should we say in the casebook or the associated teacher's manual about this? Does her behavior leave a bad taste in your mouth?

 

FDA Commissioner Scott Gottlieb is quitting after about 2 years on the job

Here is the opening of the New York Times article on Gottlieb's resignation:

Scott Gottlieb, the commissioner of the Food and Drug Administration, known for his aggressive efforts to regulate the tobacco and e-cigarette industries, said on Tuesday that he would resign at the end of the month.The reason he gave was family and his weariness with commuting to see his wife and three children, who have remained in their Westport, Conn. home since he took office. But his announcement caught many in Washington and the industries he regulates by surprise and raised questions about whether his push to reduce teenage vaping and lower nicotine levels and ban menthol in cigarettes will continue in an administration that generally has a hands-off approach to business.

For other articles on the surprise resignation, go here, here, here (concerning Gottlieb's "legacy"), and here.

Story on employer helping students pay off student loans

This article by Stuart Singer discussed how one company has a program to help students pay off their student loans. According to the Federal Reserve, outstanding student-loan debt was $1.57 trillion in 2018, more than triple the $487 billion in 2006.

The Centers for Disease Control is investigating the dangers of electric scooters

Electric scooters have simply showed up on the streets, placed there by profit-seeking companies, largely or entirely unregulated. Read this story by Sharon Jayson concerning an investigation into the large number of injuries caused by e-scooters currently underway at the Centers for Disease Control. 

Proving up torts involving self-driving cars via inference

Bryan Casey has written Robot Ipsa Loquitur. Here is the abstract:

Accidents are becoming automated. From self-driving cars to self-flying drones, robots are increasingly colliding with the world. And one of the most pressing questions raised by these technologies — indeed, one of the great regulatory challenges of the coming era — is how the law should account for crashes involving such complex automated systems. By now, many have weighed in, including the field’s luminaries. And, though responses vary, a tentative consensus has emerged on at least one front. Age-old negligence liability is essentially a nonstarter. For negligence requires a showing of fault. And in a world where vexingly complex robots roam, how could one possibly find the needle of negligence in a haystack comprised of millions of lines of computer code?

This Article challenges that view. In sharp contrast to the prevailing wisdom, it argues that widespread debates over the so-called ‘vexing tort problems’ raised by modern robots have overlooked a crucial issue: inference. Negligence, after all, needn’t be shown by pointing directly to a faulty line of code. Like all facts, it can be proven indirectly through circumstantial evidence. Indeed, as the ancient negligence rule of res ipsa loquitur makes plain, sometimes an accident can “speak for itself.”

Using the first robot accused of negligence as a case study, this Article shows how advanced telematics technologies in modern machines provide richly detailed records of accidents that, themselves, speak to the negligence of the parties involved. In doing so, it offers the first wide ranging account of how inference-based analysis can — and, in fact, already does — elegantly resolve liability determinations for otherwise confoundingly complex accidents. After showing that the purportedly novel challenges posed by robots are neither unprecedented, unresolvable, nor even unique to emerging technologies, the Article then takes a more practical turn. Drawing from a rich vein of precedent involving automated accidents, it outlines steps that courts, practitioners, and policymakers can take to streamline fault determinations using an approach it calls robot ipsa loquitur. With trillion-dollar markets and millions of lives on the line, it argues that drastic calls by leading experts to upend conventional liability are ahistorical, contrary to tort law’s fundamental goals, and unnecessary to protect the interests of accident victims. A simpler, more productive approach would let the robot speak for itself.

States at the forefront of consumer privacy legislation

The American Banker reports on state efforts to pass consumer privacy laws, including laws passed others under consideration. The article is here.

Get the Consumer Product Safety Commission's recall app

The Consumer Product Safety Commission has created a recall app for your mobile phone allowing easy tracking of federal consumer product safety recalls. Get the app here. 

Credit bureau reform

Last week, the National Consumer Law Center's Chi Chi Wu testified before the House Financial Services Committee on continuing serious problems plaguing the credit reporting industry, including its failure to ensure the accuracy of credit reports. Among other things, the testimony identified these concerns:

• unacceptable error rates and the myriad types of systemic inaccuracies in credit reports;
• the travesty of the automated dispute system used by the credit bureaus;
• the absurdity that credit reports and scores treat consumers who have fallen on hard times as irresponsible deadbeats;
• systemic racial disparities in credit scoring;
• the unfair impact of medical debt on credit reports;
• the problems with use of credit reports for employment purposes, and
• the deficiencies in data security that led to the massive Equifax data breach, which has not yet been adequately addressed.

NCLC called on Congress and regulators to institute these reforms:

• a right of appeals for consumers when they disagree with a furnisher or credit bureau about the results of a dispute investigation;
• stricter matching criteria to ensure that information belonging to one consumer does not get wrongfully mixed into the credit report of another consumer;
• a requirement that credit bureaus devote sufficient resources to the dispute system and a clarification that they must conduct independent analyses instead of simply parroting what furnishers tell them;
• a right to seek court orders to compel credit bureaus to fix reports;
• more control for consumers by requiring that they must proactively authorize the use of their credit reports for credit, insurance and other uses, and
• a publicly-owned alternative to the credit bureaus.

Read NCLC's press release on the testimony, the testimony itself, and NCLC's comprehensive report on the topic entitled Automated Injustice Redux.

 

Inside the payday-loan industry's efforts to ditch the CFPB's payday lending rules

Read this article by Renae Merle entitled How a payday lending industry insider tilted academic research in its favor. It explains how payday-loan industry lobbyists bought (and sometimes wrote) research from supposedly independent academics purporting to show that payday loans don't harm consumers.

Oh, and by the way, the payday-loan industry's lobby group "held its 2018 meeting at the Trump National Doral Golf Club near Miami and plans to meet there again this year."