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.

Joanna Schwartz Paper on Whether Class Actions Coerce Settlements

Joanna C. Schwartz of UCLA has written The Cost of Suing Business, forthcoming in the DePaul Law Review. Here's the abstract:

To listen to the Chamber of Commerce, one would think that class actions are the most significant scourge on business ever conjured up by man. In brief after brief to the Supreme Court, the Chamber of Commerce and other business amici tell the same story: Meritless class actions, filed by rapacious plaintiffs’ attorneys for the ostensible benefit of consumers, employees, and shareholders, are so devastatingly expensive to defend against, and threaten such financial ruin if plaintiffs prevail, that corporate defendants cannot help but accept “blackmail settlements” that harm both businesses’ bottom lines and society at large. In this Essay for the 2015 Clifford Symposium, I examine the empirical support for these claims about the deleterious effects of class actions.

Although there is very little reliable empirical information about any aspect of modern civil litigation, at least some available information challenges business amici's assertions about the costs and burdens of class action suits.  Class actions, as a whole, appear no more coercive to defendants than any other kind of litigation. Businesses appear to spend even more money suing each other than they do defending against class actions. There is no reason to believe that class actions are more often frivolous than other types of cases, or that plaintiffs’ attorneys who bring class actions are any more unscrupulous than the other members of their profession. And claims about the costs and burdens of class action litigation underestimate the costs of restricting plaintiffs’ access to the courts. For these reasons and others, prevailing depictions of the costs and burdens of class actions appear to be both unfounded and incomplete.

Nathalie Martin Study of Undocumented Immigrants' Banking and Credit Habits

Nathalie Martin of New Mexico has written Giving Credit Where Credit is Due: What We Can Learn from the Banking and Credit Habits of Undocumented Immigrants.  Here's the abstract:

Undocumented immigrants currently make up more than 5% of the U.S. labor force and 7% of school-age children. Numbering over eleven million, undocumented immigrants unquestionably comprise a significant segment of the population, yet most lack financial security and stability on multiple fronts. In addition to the everyday risk of deportation, many risk being taken advantage of on the basis of their immigration status, in both employment and debtor-creditor relationships. While some of these financial conditions are well-chronicled, this Article describes the first empirical study of the debtor-credit relationships of undocumented immigrants. Through live interviews, this Article recounts the general financial impediments undocumented immigrants face in trying to work, pay taxes, raise children, participate in the U.S. economy, and simply survive.

Among other topics, this Article explores whether undocumented immigrants use traditional financial institutions or more informal ones, and whether predatory lenders such as payday and title lenders have made inroads into immigrant communities. It further explores our study participants’ perception of and attitudes toward various forms of credit, with the hope of using this sample to gain more generalized insights into the credit uses and attitudes of undocumented Americans as a whole in today’s consumer credit economy.

Through our study,  we were able to uncover a few of the grim realities of living in the financial shadows, with only precarious means of financial support, distanced from social safety networks at home, at legal disadvantage, and without a place at any policy-related table. Indeed, we conclude that the financial condition of many undocumented immigrants is far more precarious than one might imagine, as shown through our data that 74% of the persons interviewed would not be able to cover a $100 emergency if it came up. We also discovered fear of and disdain for credit among many undocumented persons, demonstrating sensible ideas about credit, which many of us in the mainstream population could learn from.

Talesh Article: How Private Organizations Influence the Content and Meaning of Consumer Protection Legislation

Shauhin A. Talesh of Irvine has written Institutional and Political Sources of Legislative Change: Explaining How Private Organizations Influence the Form and Content of Consumer Protection Legislation, 39 Law and Social Inquiry 973 (2014 ). Here's the abstract:

This article explores how private organizations influence the content and meaning of consumer protection legislation. I examine why California forced consumers to use a private dispute resolution system that affords consumers fewer rights, while Vermont adopted a state-run disputing structure that affords consumers greater rights. Drawing from historical and new institutional theories, I analyze twenty-five years of legislative history, as well as interviews with drafters of the California and Vermont laws, to show how automobile manufacturers weakened the impact of a powerful California consumer warranty law by creating dispute resolution venues. As these structures became institutionalized in the lemon law field, manufacturers reshaped the meaning of legislation.

Unlike California, the political alliances in Vermont and a different developmental path led to a state-run dispute resolution structure. I conclude that how social reform laws are designed and how businesses influence social reform legislation can increase or decrease the achievement of a statute’s social reform goals.

 

 

Helveston Paper on Courts and Consumer Protection

Max N. Helveston of DePaul has written Judicial Deregulation of Consumer Markets, forthcoming in the Cardozo Law Review. Here's the abstract:

 

The dangers posed by insufficiently regulated consumer markets are both real and monumental. While the rights of consumers expanded drastically in the mid-to-late twentieth century, these protections have weakened in the new millennium. One of the forces driving this change has been the judiciary, where an anti-consumer jurisprudence has taken root. This is surprising, given the courts’ history of defending individuals’ commercial rights and combating unfair market practices.

Despite the significant ramifications that the removal of consumer protections have for every individual, the evolution of anti-consumerism in the courts has received scarce attention from the academy.

This Article fills this gap by collecting and analyzing the decisions underlying the judiciary’s shift on consumer law issues. It describes how changes in courts’ views about contractual interpretation, the propriety of judicial intervention in private relationships, and deference to alternative means of regulation have stripped consumers of their rights. It goes on to discuss the normative goals of consumer protection law and develops a framework for future pro-consumer governmental efforts. This framework challenges the pragmatic viability of doctrinal solutions to consumer law issues and describes why legislative and administrative measures are better suited to protecting consumers.

Kim & Telman on Internet Giants as Quasi-Governmental Actors and Contractual Consent

Nancy S. Kim of California Western and D. A. Jeremy Telman of Valparaiso have written Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent, Forthcoming in the Missouri Law Review. Here is the abstract:

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies.  We argue that the myth of contractual consent muted criticisms that otherwise might be directed at the real data-mining masterminds.  By clicking “agree,” consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put and the entities (including the federal government) with whom their information would be shared.  We also question the distinction between governmental actors and private actors in this realm, as the Internet giants increasingly exploit contractual mechanisms to operate with quasi-governmental powers in their relations with consumers. We propose that, in their efforts to better protect consumer data, regulators and policymakers should demand more than mere contractual consent as an indicator of consumers’ grant of permission for the use of their data. 

Vairo on Class Actions

Georgene M. Vairo of Loyola Los Angeles haw written Is the Class Action Really Dead? Is that Good or Bad for Class Members? 64 Emory Law Journal 477 (2014). Here's the abstract:

Recent Supreme Court decisions have tightened up the standards for obtaining class certification and virtually eliminate class arbitration as well. However, while the Court has made it more difficult for plaintiffs’ attorneys to use class resolution of claims as a prosecutorial tool, the lower federal courts appear to relax certification standards when the parties seek to certify a settlement class. Because of the preclusive power of a class action, which binds all class members who do not opt out, the class action remains a potent settlement tool. The 2014 Randolph W. Thrower Symposium panel that served as the foundation for this paper, “Binding the Future: Global Settlements and the Death of Representative Litigation,” asked, however, whether class settlements are bad for class members.

This Article begins by analyzing the Supreme Court’s certification decisions and agrees with most commentators that although class actions are not dead, the device’s utility as a prosecution tool has been compromised. However, the Article then shows that certification of class actions for settlement purposes is alive and well. Finally, the Article identifies possible alternatives to the use of class actions. Although much attention has been (and should be) directed at the fairness of proposed settlements, the Article suggests that it is fortunate that the lower federal courts are not applying class certification standards as stringently in the class settlement context. This is because, despite all the problems inherent in class action practice, class actions remain the best of a range of options for protecting the rights of class members, particularly in low-value claim cases.

Study of Public Participation in Rulemaking and Plain Language

Cynthia R. Farina, Mary Newhart, and Cheryl L. Blake, all of Cornell, have written The Problem with Words: Plain Language and Public Participation in Rulemaking, George Washington Law Review (2015 Forthcoming). Here's the abstract:

The connection between more understandable rulemaking materials and broader, better public participation seems obvious, Yet the series of Presidential and statutory plain-language directives issues over the last 5 decades have not even mentioned the relationship of comprehensibility to participation — until very recently. In 2012, the Office of Information and Regulatory Affairs (OIRA) issued “guidance” instructing that “straightforward executive summaries” be included in “lengthy or complex rules.” OIRA reasoned that “[p]ublic participation cannot occur … if members of the public are unable to obtain a clear sense of the content of [regulatory] requirements.”

Using a novel dataset of proposed and final rule documents from 2010-2014, we examine the effect of the executive summary requirement. We find that the use of executive summaries increased substantially compared to the modest executive-summary practice pre-Guidance. We also find that agencies have done fairly well in providing summaries for “lengthy” rules. Success in providing the summary in “complex” rules and in following the standard template included with the Guidance is mixed. Our most significant finding is the stunning failure of the new executive summary requirement to produce more comprehensible rulemaking information. Standard readability measures place the executive summaries at a level of difficulty that would challenge even college graduates. Moreover, executive summaries are, on average, even less readable than the remainder of the rule preambles that they are supposed to make accessible to a broader audience.

This article is part of the symposium commemorating the 50th anniversary of the Administrative Conference of the United States

Does Pre-Submission Media Coverage Increase the Odds of a Good Article Placement?

by Jeff Sovern

As law students, law professors, and lawyers know, most law reviews are edited by law students, which means that law students select the articles that appear in their journals.  The prime submission season is just underway, and so newly-minted law review editors—most in their second year of law school—are choosing among the flood of articles submitted by lawyers and law professors.

Most second year students have been exposed to only a limited range of legal doctrines and a limited number of articles.  That surely must make it harder to assess the quality of an article.  Consequently, it is only natural that some rely upon signals of quality.  For example, some observers claim that law review editors are subject to letterhead bias; that is, the tendency to give excessive weight to the affiliation of the author, with the result that prestigious journals publish weaker articles by professors at top law schools over better articles by scholars at schools that are ranked lower. 

I am wondering about the effectiveness of a different signal to suggest that an article is significant: media attention for the research reported in the article (Warning: self-serving statements ahead). My co-authors and I are in the process of submitting to law reviews an article (which will be familiar to regular readers of this blog), “Whimsy Little Contracts” with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements.  It’s been the subject of coverage in The New York Times DealBook, the Cleveland Plain Dealer, American Banker (here, here, and here),  and a couple more places have stated their intention to run things on it.  While I wrote most of those pieces (but not all), the various outlets undoubtedly would not have used my pieces if they did not deem them newsworthy. So will all that signal to law review editors that the article is significant?  Of course, one article is a miniscule sample, but if the article gets a good placement, law review article writers might be well advised in the future to seek more media attention for their writings (I should note that media attention is valuable for reasons other than obtaining good placements, including that it can lead to useful comments on the underlying article and also help promote the ideas expressed in the article).

FDCPA Surveys

by Jeff Sovern

I'm looking into survey evidence to establish or defend against a claimed violation of the Fair Debt Collection Practices Act for a possible article.  If you have conducted such a survey in one of your cases or know someone who has, please email me at sovernj at stjohns dot edu.

 

Thanks!