Consumer Law & Policy Blog

Raher Article on Consumer Law in Prisons and Jails

Stephen Raher has written The Company Store and the Literally Captive Market: Consumer Law in Prisons and Jails, 17 Hastings Race and Poverty Law Journal  3 (2019). Here's the abstract: 

The growth of public expense associated with mass incarceration has led many carceral systems to push certain costs onto the people who are under correctional supervision. In the case of prisons and jails, this frequently takes the form of charges and fees associated with telecommunications, food, basic supplies, and access to information. Operation of these fee-based businesses (referred to here as “prison retail”) is typically outsourced to a private firm. In recent years, the dominant prison retail companies have consolidated into a handful of companies, mostly owned by private equity firms.

This paper explores the practices of prison retailers, and discusses potential consumer-law implications. After an overview of the prison-retail industry and a detailed discussion of unfair practices, the paper looks at some potential legal protections that may apply under current law. These protections, however, prove to be scattered and often illusory due to mandatory arbitration provisions and prohibitions on class adjudication. The paper therefore concludes with recommendations on a variety of steps that state, local, and federal governments can take to address the problems inherent in the current model.

Paper: Racial Disparities in Debt Collection

Jessica LaVoice and Domonkos F. Vamossy, both of the University of Pittsburgh's Department of Economics, have written Racial Disparities in Debt Collection. Here is the abstract:

A distinct set of disadvantages experienced by black Americans increases their likelihood of experiencing negative financial shocks, decreases their ability to mitigate the impact of such shocks, and ultimately results in debt collection cases being far more common in black neighborhoods than in non-black neighborhoods. In this paper, we create a novel data-set that links debt collection court cases with information from credit reports to document the disparity in debt collection judgments across black and non-black neighborhoods and to explore potential mechanisms that could be driving this judgment gap. We find that majority black neighborhoods experience approximately 40% more judgments than non-black neighborhoods, even after controlling for differences in median incomes, median credit scores, and default rates. The racial disparity in judgments cannot be explained by differences in debt characteristics across black and non-black neighborhoods, nor can it be explained by differences in attorney representation, the share of contested judgments, or differences in neighborhood lending institutions.

Frankel Article: Corporate Hostility to Arbitration

Richard Frankel of Drexel has written Corporate Hostility to Arbitration, 50 Seton Hall Law Review (forthcoming 2020). Here is the abstract:

In the last 30 years, corporations have aggressively and successfully pushed the Supreme Court to invalidate virtually all state regulation of mandatory arbitration clauses on the ground that the Federal Arbitration Act (FAA) preempts any state law that expresses “hostility” to arbitration. Under current doctrine, the FAA preempts any state law that is premised on the idea that arbitration is inferior to litigation for resolving disputes, or that treats arbitration clauses less favorably than other contracts.

Yet, at the same time corporations decry state-law hostility to arbitration, they frequently express their own hostility to arbitration in the way they draft their own arbitration provisions. By carving out specific claims from arbitration, adopting procedural rules that approximate litigation, or imposing restraints that make it difficult for their consumers and employees to bring disputes in arbitration, corporations have shown that they believe arbitration to be inferior to litigation in multiple ways.

Although scholars have widely debated the Supreme Court’s arbitration jurisprudence, “corporate hostility” to arbitration has gone largely unnoticed. This article examines the various methods by which corporations express hostility to arbitration and argues that this hostility carries significant implications for FAA preemption doctrine. Currently, contract drafters can exempt claims from arbitration because they believe that arbitration is inferior to litigation. But when states seek to regulate arbitration for those same reasons, they are barred from doing so by the FAA. Thus, corporations can exempt claims from arbitration to maximize their self interest, but states cannot exempt claims from arbitration to protect the public interest.

This dichotomy is anti-democratic and results in bad policy. This article proposes that corporate hostility to arbitration shows that not all hostility to arbitration is improper, and that states should have greater freedom to regulate arbitration clauses without violating the FAA.

How did ordinary people experience the foreclosure crisis?

That's the subject of a new book by Linda Fisher of Seton Hall and Judith L. Fox of Notre Dame, published by Cambridge Press, The Foreclosure Echo: How the Hardest Hit Have Been Left Out of the Economic Recovery. You can read the introduction here. Here's the abstract:

This paper includes the Table of Contents and Introduction to a book recently published by Cambridge University Press: It tells the story of the foreclosure crisis from a new perspective – that of ordinary people who experienced it. Using actual experiences – often examined through a legal lens – supplemented by economic, social science and legal research, The Foreclosure Echo explains how people experienced the crisis and how their lenders and public institutions let them down. The book also details the lingering effects of the crisis – such as vacant and abandoned buildings – and how these effects have magnified inequality. Finally, the book suggests reforms that could help avoid another crisis.

James Nehf Paper: The Failure of 'Notice and Consent' as Effective Consumer Policy

James P. Nehf of Indiana--Indianapolis has written The Failure of 'Notice and Consent' as Effective Consumer Policy. Here's the abstract:

Over the past several decades, the preferred model for consumer protection in most countries has emphasized a notice and consent (or choice) approach with less emphasis on normative laws that prohibit or mandate certain contract terms, acts or practices. In this essay, I argue that it is time for consumer advocates and policy makers to recognize that a notice and consent approach to standard contract terms and conditions is not likely to protect consumer interests in modern day contractual settings. Indeed, policy makers are doing more harm than good by continuing to focus on notice and consent, thereby giving a misleading impression that consumer interests are being protected when they are not. Moreover, by adhering to a notice and consent regime, they avoid discussing the more difficult yet most fundamental questions about what commercial practices should be permitted and which should be banned.

Call for Abstracts for Second Annual Berkeley Consumer Law Scholars Conference

We have received the following call for abstracts (last year's conference was excellent):

The Berkeley Center for Consumer Law and Economic Justice, its director Ted Mermin, and co-organizers Abbye Atkinson, Kathleen Engel, Manisha Padi, Rory Van Loo, and Lauren Willis are pleased to announce the second annual Consumer Law Scholars Conference (CLSC), which will be held the afternoon and evening of March 5 and all day March 6, 2020, in Berkeley, CA.

The conference will support in-progress scholarship, foster a community of consumer law scholars, and build bridges with scholars in other disciplines who focus on consumer issues. The bulk of the conference will consist of paper workshop sessions at which discussants, rather than authors, introduce and lead discussions of the papers. Everyone who attends a session will be expected to have read the paper; everyone is a participant. The conference will also feature keynotes by leading practitioners and prominent policymakers, as well as time to discuss ideas and collaborate informally.

If you would like to workshop an unpublished paper, please submit: (1) a title, (2) a short abstract that grounds your work in relevant literature, and (3) an outline HERE by October 11, 2019. We will announce accepted abstracts in early November.

Potential topics may range across the full breadth of issues involving consumers in the marketplace, including, e.g.: student loan servicing and debt cancellation; online product endorsement; racial, ethnic and other disparities in treatment by lenders and by merchants; debt collection; public health disclosures; credit reporting; commercial speech and the First Amendment; the proposed Restatement of Consumer Contracts; the CFPB in theory and practice; issues of federalism, preemption, and sovereign immunity in small-dollar lending regulation; UDA(A)P and disclosure laws; consumer behavior; fintech; and the application of consumer law to abuses in the criminal justice system.

Workshop versions of the papers will be due February 3, 2020. We reserve the right to cancel workshops if the paper draft is not provided sufficiently in advance for meaningful review by participants.

Conference participants will be expected to read the papers in advance. 15 papers will be discussed over the course of 5 sessions (3 concurrently per session), meaning that each participant should be prepared to read and comment on 5 of the selected papers. Thus, please calendar at least two days of preparation time in advance of the conference. The final schedule of sessions will be distributed in early February.

LOGISTICS

Participants will cover their own travel and lodging expenses. (Berkeley Law has a very small amount available for those who could not otherwise attend.) The Berkeley Center for Consumer Law and Economic Justice will provide breakfast and lunch to all attendees on Friday. Presenters and moderators are invited to attend dinner on Thursday evening. We will reserve a block of hotel rooms nearby and will share further details on how to register soon.

Luguri & Strahilevitz paper on how online companies manipulate consumers using dark patterns--and UDAP laws

Jamie Luguri and Lior Strahilevitz, both of Chicago, have written Shining a Light on Dark Patterns. Here is the abstract:

Dark patterns are user interfaces whose designers knowingly confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions. They typically exploit cognitive biases and prompt online consumers to purchase goods and services that they do not want, or to reveal personal information they would prefer not to disclose. Research by computer scientists suggests that dark patterns have proliferated in recent years, but there is no scholarship that examines dark patterns’ effectiveness in bending consumers to their designers’ will. This article provides the first public evidence of the power of dark patterns. It discusses the results of the authors’ large-scale experiment in which a representative sample of American consumers were randomly assigned to a control group, a group that was exposed to mild dark patterns, or a group that was exposed to aggressive dark patterns. All groups were told they had been automatically enrolled in an identity theft protection plan, and the experimental manipulation varied what acts were necessary for consumers to decline the plan. Users in the mild dark pattern condition were more than twice as likely to remain enrolled as those assigned to the control group, and users in the aggressive dark pattern condition were almost four times as likely to remain enrolled in the program. There were two other striking findings. First, whereas aggressive dark patterns generated a powerful backlash among consumers, mild dark patterns did not – suggesting that firms employing them generate substantial profits. Second, less educated subjects were significantly more susceptible to mild dark patterns than their well-educated counterparts. Both findings suggest that there is a particularly powerful case for legal interventions to curtail the use of mild dark patterns.

The article concludes by examining legal frameworks for ameliorating the dark patterns problem. Many dark patterns appear to violate federal and state laws restricting the use of unfair and deceptive practices in trade. Moreover, in those instances where consumers enter into contracts after being exposed to dark patterns, their consent could be deemed voidable under contract law principles. The article proposes a quantitative bright-line rule for identifying impermissible dark patterns. Dark patterns are presumably proliferating because firms’ secret and proprietary A-B testing has revealed them to be profit maximizing. We show how similar A-B testing can be used to identify those dark patterns that are so manipulative that they ought to be deemed unlawful.

Schwarcz Article on Discrimination in Insurance

Daniel Schwarcz of Minnesota has written Towards a Civil Rights Approach to Insurance Anti-Discrimination Law, 69 DePaul Law Review (Forthcoming). Here's the abstract:

Discrimination is fundamental to the business of auto and homeowners insurance. Yet state insurance law does remarkably little to police against the risk that this discrimination will unfairly harm minority or low-income communities. Not only do state insurance regulators completely ignore the prospect that facially-neutral insurance practices might disparately impact vulnerable populations, but they affirmatively suppress the production and dissemination of data that would advance a better understanding of this risk. Meanwhile, most states continue to cling to an antiquated, ineffective, and inefficient scheme of “public utility style” rate regulation that purports to prohibit “excessive, inadequate, or unfairly discriminatory” insurance rates. This scheme not only undermines the operation of efficient insurance markets, but also helps to shield the industry and state regulators from scrutiny regarding how insurance practices impact larger social goals, like facilitating socio-economic mobility. This Article argues that insurance law should scrap its regime of public utility style rate regulation in favor of a civil rights approach to anti-discrimination law. Such an approach should, at a minimum, promote the collection and public disclosure of company-specific, transaction-level data on insurance applications, purchases, losses, and policyholder membership in legally protected groups, much in the manner of the Home Mortgage Disclosure Act. Further paralleling modern anti-discrimination regimes in consumer finance, this civil rights approach should afford private parties a cause of action against insurers based on a modified disparate impact theory that reflects the important role of risk-based discrimination in insurance markets. This could be accomplished by recognizing that insurance discrimination based on factors that genuinely predict claim frequency or severity even after controlling for prohibited characteristics constitutes a “legitimate non-discriminatory” practice under the familiar burden-shifting scheme for disparate impact liability.

What is the optimal structure for the Consumer Financial Protection Bureau?

That's the topic of Commissioning the Consumer Financial Protection Bureau by law prof Jolina Cuaresma. Here's the abstract:

There has been much debate over the Consumer Financial Protection Bureau’s lack of executive and congressional oversight: its single director removable only for cause and its operations are not subject to appropriations. This paper explains how this very leadership and accountability structure — intended to politically insulate the agency — had the perverse effect of politicizing it. Since Director Cordray’s departure, there has been increased regulatory uncertainty, discouraging financial innovation and harming consumer welfare. This paper recommends that Congress restructure the Bureau into a multi-member, bipartisan commission to provide industry regulatory predictability and ensure that consumer protection retains its independent seat in the financial regulatory system.

Matt Bruckner article on preventing predation in fintech lending

Matthew A. Bruckner of Howard has written Preventing Predation & Encouraging Innovation in Fintech Lending. Here is the abstract:

More than 20 years ago, IBM's Deep Blue vanquished chess grandmaster and reigning world chess champion, Garry Kasparov, in a pair of best-of-six matches. Since then, numerous companies have invested large sums of money to develop additional game-playing, machine-learning algorithms. They have enjoyed significant successes. For example, in 2016, AlphaGo demolished Lee Sedol, a world champion Go player, 4-1 in a series of matches by, among other things, making “a move no human would ever play, stunning experts and fans and utterly wrong-footing world champion Lee Sedol.” In addition, Libratus defeated “four of the top-ranked human Texas Hold'em players in the world over the course of 120,000 hands” during a twenty-day poker competition in 2017. Other algorithms have also defeated top players in checkers, chess, Jeopardy!, and Scrabble.

These companies are not trying to dominate your family game nights. Instead, they are betting that many of the techniques and strategies used to create world-class game-playing algorithms can be deployed for other purposes as well. In other words, they are looking to create general-purpose artificial intelligence (AI) systems. One use for AI systems is to improve credit-underwriting models. The regulation of these types of AI systems is the focus of this paper.

This new breed of lenders, often called fintech lenders, are amassing hordes of data (Big Data) and using machine- learning techniques honed in the game-playing context to improve existing credit-underwriting models. Fintech lenders commonly use nontraditional, tech-centric methods to market themselves to prospective borrowers, evaluate borrower creditworthiness, and to match prospective borrowers with sources of credit. Examples include Lenddo and ZestFinance. Fintech lenders often claim that they can lower loan origination costs and loan default rates, thus improving credit accessibility. 

This essay proceeds as follows. First, it briefly explains fintech lending, focusing on its differences from traditional lending. Next, it highlights the promise and peril of fintech lending. Finally, it considers how state and federal regulators might deploy their powers to prohibit unfair acts and practices to encourage the promise and avoid the peril of fintech lending. A brief conclusion follows.