Consumer Law
Judging Debt: How Judges’ Practices in Consumer-Credit Court Undermine Procedural Justice
This Essay draws from on-the-ground interviews and procedural-justice theory to analyze judging practices in debt-collection courts. Current practices undermine courts’ fairness and legitimacy. This Essay argues that courts must prioritize procedural justice by adopting judging practices that consider unrepresented litigants’ circumstances and require a more active judicial role.
Keeping Litigation at Home: The Role of States in Preventing Unjust Choice of Forum
Contractual choice-of-forum clauses pose significant obstacles to individuals’ claims against corporations. But states can and do enact legislation protecting vulnerable parties from unjust forum selection. This Note discusses the breadth of existing state anti-choice-of-forum statutes and argues that states should continue legislating in this area.
Beyond Nudging: Debiasing Consumers Through Mixed Framing
Mixed framing juxtaposes the positive and negative attributes of a product. For example, a label using mixed framing might characterize food as “90% fat-free / 10% fat.” This Note advocates that regulators embrace mixed framing as a middle ground in the battle between paternalistic and libertarian approaches to consumer-protection law.
The Reach of Local Power
Recent litigation has challenged local California prosecutors’ power to seek and receive statewide relief for violations occurring outside county lines. This Essay argues against this trend and explains why it is inappropriate to apply the constitutional norms that state-versus-federal conflicts to conflicts between states and municipalities.
The Obsolescence of Advertising in the Information Age
Online search renders most advertising obsolete for conveying product information. Today, the only purpose of most advertising is to persuade consumers to purchase products. Because the information function of advertising is now obsolete, this Article argues that the Federal Trade Commission should renew its mid-twentieth century campaign against persuasive advertising.
The Tarnished Golden Rule: The Corrosive Effect of Federal Prevailing-Party Standards on State Reciprocal-Fee Statutes
Drawing on the authors’ clinical experience, this Comment describes an asymmetry in how courts award attorney’s fees that makes it more difficult for consumer-defendants to recover the costs of litigation. The Comment articulates a standard of “prevailing party” that would ensure equitable and efficient attorney’s fee awards when consumer-defendants win.
Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana
The spread of synthetic marijuana is a public health crisis. Municipalities struggle with how to regulate drugs that can change as quickly as officials can design enforcement regimes. This Comment proposes leveraging creative administrative design and existing consumer protection torts to stem the tide of synthetic marijuana overdoses.
Amazon’s Antitrust Paradox
Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space.
Playing Nicely: How Judges Can Improve Dodd-Frank and Foster Interagency Collaboration
Lawmaking in the Shadow of the Bargain: Contract Procedure as a Second-Best Alternative to Mandatory Arbitration
122 Yale L.J. 1560 (2013). In consumer and employment arbitration, companies have more freedom to choose dispute resolution procedures than they do in courts. Specifically, companies may, through their form contracts, require their customers and employees to waive their rights to present certain forms of evidence, conduct certain forms of discovery, appeal a final judgment, and join a class. Because these procedural terms are attractive to companies, they often require their consumers and employees to bring claims to arbitration rather than to courts. Consequently, consumer and employment disputes appear less frequently on courts’ dockets than they would in the absence of mandatory arbitration, preventing courts from providing important public goods. Many critics have proposed various large-scale legislative reforms that would limit the scope of mandatory arbitration. These proposals, however, have largely not gained political traction. In the absence of large-scale legislative reform, this Note considers whether enforcing more procedural options in courts may be the second-best alternative to mandatory arbitration. Permitting parties the same procedural options in courts that are already available in arbitration may influence companies to allow their consumer and employment disputes to be brought in courts, thus allowing courts to play their role in generating important public goods.
The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other
121 Yale L.J. 2216 (2012). The potential complementarities between antitrust and consumer protection law—collectively, “consumer law”—are well known. The rise of the newly established Consumer Financial Protection Bureau (CFPB) portends a deep rift in the intellectual infrastructure of consumer law that threatens the consumer-welfare oriented development of both bodies of law. This Feature describes the emerging paradox that rift has created: a body of consumer law at war with itself. The CFPB’s behavioral approach to consumer protection rejects revealed preference—the core economic link between consumer choice and economic welfare and the fundamental building block of the rational choice approach underlying antitrust law. This Feature analyzes the economic, legal, and political institutions underlying the potential rise of an incoherent consumer law and concludes that, unfortunately, there are several reasons to believe the intellectual rift shaping the development of antitrust and consumer protection will continue for some time.
Bad News for John Marshall
In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, Bad News for Everybody, wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual arguments.
Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act
120 Yale L.J. 1263 (2011).
The Impact of Teacher Collective Bargaining Laws on Student Achievement: Evidence from a New Mexico Natural Experiment
120 Yale L.J. 1130 (2011). This Note uses the 1999 sunset and 2003 reauthorization of New Mexico’s public employee collective bargaining law to estimate the causal effect of teacher collective bargaining on student achievement. This Note finds that mandatory teacher bargaining laws increase the performance of high-achieving students while simultaneously lowering the performance of poorly achieving students. After establishing this core empirical result, the Note explores its implications for current trends in American education policy and for normative arguments about the role of teachers’ unions in public schools.
Against Insurance Recission
120 Yale L.J. 328 (2010). This Note argues that rescission—the traditional remedy for innocent misrepresentations on insurance applications—systematically overcompensates insurance companies. In short, rescission allows insurers to refuse benefits to people who make innocent misrepresentations and suffer losses even while retaining the premiums of similarly situated people who never file claims. The principles of contract law do not compel this result, and courts have made insurance law doctrine less coherent in an effort to avoid it. Given the problems that rescission creates in the innocent misrepresentation context, this Note proposes an alternative remedy called “actuarially fair reformation.” Actuarially fair reformation would avoid rescission’s market-distorting inefficiencies by awarding misrepresenting insureds the amount of insurance that their premiums could have financed.
Regulating in the Shadow of the U.C.C.: How Courts Should Interpret State Consumer Protection Laws
119 Yale L.J. 1329 (2010).
The Law of Describing Accidents: A New Proposal for Determining the Number of Occurrences in Insurance
118 Yale L.J. 1484 (2009). This Note argues that the term “occurrence” in insurance law should be defined by reference to the statistical concept of independence. Most courts define occurrence according to a version of the “causation” theory. This approach, however, yields inconsistent results for strikingly similar fact patterns and routinely strains theories of proximate causation. The concept of independence provides a better approach because it is consistent with the insurance system’s assumption that adverse outcomes are independent. It also provides a clearer standard for adjudicators and better explains why decisions that seem confused under current doctrine are, in fact, correct for the insurance system.
Consumerism Versus Producerism: A Study in Comparative Law
117 Yale L.J. 340 (2007). The spread of American-style “consumerism” is a burning global issue today. The most visible symbols of American consumerism, large enterprises like Wal-Mart and McDonald’s, attract vitriolic attacks in many parts of the world. Political conflict in Europe (and elsewhere) turns largely on the question of whether legal systems everywhere must inevitably follow the American model. Despite the global importance of the consumerism debates, though, comparative lawyers have found little to say. In an effort to develop an analytic comparative law approach to the problem of global consumerism, this Article proposes to revive an analytic distinction that was common in the 1930s: the distinction between “consumerism” and “producerism.” A producerist legal order tends to revolve around rights and interests on the supply side of the market: it focuses on the interest of some class of producers or distributors (such as workers, small shopkeepers, or the competitors in a given industry). A consumerist legal order, by contrast, tends to focus on rights and interests on the demand side of the market—in particular, on the consumer economic interest, understood primarily as an interest in competitive prices. Producerist legal orders can take forms quite different from consumerist ones, both when it comes to economic regulation in the law of antitrust and retail and when it comes to fundamental conceptions of the nature of rights. The distinction between consumerism and producerism involves some real complexities, and it must be used with care. Nevertheless, this Article argues, it is of fundamental importance for classifying and analyzing legal systems, and in particular for understanding basic and persistent differences between continental Europe and the United States.