Archive for the ‘Consumer Protection Law’ Category

Museum Fraud?

posted by Gerard Magliocca

I was interested to read about a lawsuit that was recently filed against the Metropolitan Museum of Art alleging that the museum is engaged in deceptive business practices with respect to its “admission” fee.  Access to the museum is essentially free.  But the Museum posts admission fees of various sorts when you walk in.  If you look carefully, then you’ll see that these are “recommended” donations. You must give something to enter the Met under a city ordinance, but you can give any amount that you want (such as $.01).

The problem is that lots of tourists (especially foreign tourists) do not know this.  They think, upon seeing a list of admission fees, that these are mandatory.  And the museum (trust me, I’ve been there many times) does not go out of its way to make things clear.  Does this constitute fraud or violate state law?   Do New Yorkers want to chime in?

  March 26, 2013 at 11:22 am   Posted in: Consumer Protection Law   Print This Post   3 Comments

What’s Wrong with the Financial Services Industry?

posted by Frank Pasquale

I tried to answer this question at length in a review of Robert Shiller’s Finance and the Good Society. But if you want the short version, look no further than Barry Ritholtz’s list. One could easily expand it into an ever-growing wiki, but sometimes succinctness is supreme. Here’s Ritholtz on the multiple intermediary problem:

Too many people have a hand in your pocket[.] The list of people nicking you as an investor is enormous. Insiders (CEO/CFO/Boards of Directors) transfer wealth from shareholders to themselves, with the blessing of corrupted Compensation Consultants. Active mutual funds charge way too much for sub par performance. 401(k)s are disastrous. NYSE and NASDAQ Exchanges have been paid to allow a HFT tax on every other investor. FASB and accountants have done an awful job, allowing corporations to mislead investors with junk balance statements. The media’s job is to sell advertising, not provide you with intelligent advice. The regulators have been captured.

And while we’re on the topic of the personal consequences of finance, do take a look at Helaine Olen’s Pound Foolish. Olen has been making the intellectual podcast rounds, and offers a devastating portrait of a personal finance industry warped by ideology and greed.

  February 21, 2013 at 10:48 am   Posted in: Consumer Protection Law, Financial Institutions   Print This Post   One Comment

“The Creditor Was Always Right”

posted by Frank Pasquale

What would a world of totally privatized justice look like? To take a more specific case—imagine a Reputation Society where intermediaries, unbound by legal restrictions, could sort people as wheat or chaff, credit-worthy or deadbeat, reliable or lazy?

We’re well on our way to that laissez-faire nirvana for America’s credit bureaus. While they seem to be bound by FCRA and a slew of regulations, enforcement is so wan that they essentially pick and choose the bits of law they want to follow, and what they’d like to ignore. That, at least, is the inescapable conclusion of a brief but devastating portrait of the bureaus on 60 Minutes. Horror stories abound regarding the bureaus, but reporter Steve Kroft finds their deeper causes by documenting an abandonment of basic principles of due process:
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  February 19, 2013 at 8:47 pm   Posted in: Consumer Protection Law, Corruption, Cyberlaw, Sociology of Law, Technology   Print This Post   4 Comments

Google Antitrust: the FTC Folds

posted by Frank Pasquale

Both Eric Goldman and James Grimmelmann have the details on the FTC’s rather extraordinary capitulation today. It is a big win for Google. Still, a few questions remain. I have the following:

1) Commissioner Rosch included this intriguing footnote in his concurrence/dissent:

I . . . have concerns that insofar as Google has monopoly or near-monopoly power in the search advertising market and this power is due in whole or in part to its power over searches generally, nothing in this “settlement” prevents Google from telling “half-truths”–for example, that its gathering of information about the characteristics of a consumer is done solely for the consumer’s benefit, instead of also to maintain a monopoly or near-monopoly position. . . .That is a genuine cause for “strong concern.”

Did Google ever say that it was gathering data purely for consumers’ benefit? That would seem to be an odd representation for a for-profit company to make.
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  January 3, 2013 at 9:51 pm   Posted in: Antitrust, Consumer Protection Law, Google & Search Engines, Technology   Print This Post   6 Comments

Better, Simpler Disclosure

posted by Frank Pasquale

Here is an apt response to the question: “What would an ideal food label look like?:”

Even the simplest information — a red, yellow or green “traffic light,” for example — would encourage consumers to make healthier choices. That might help counter obesity, a problem all but the most cynical agree is closely related to the consumption of junk food.

Of course, labeling changes like this would bring cries of hysteria from the food producers who argue that all foods are fine, although some should be eaten in moderation. To them, a red traffic-light symbol on chips and soda might as well be a skull and crossbones. But traffic lights could work: indeed, in one study, sales of red-lighted soda fell by 16.5 percent in three months.

Having recently spent time at a roundtable with transparency advocates (including one author of this excellent book), I can attest to the fact that only the clearest signals tend to get through the noise in an era of information overload.

  October 15, 2012 at 12:11 pm   Posted in: Consumer Protection Law, Health Law   Print This Post   One Comment

PETs, Law and Surveillance

posted by Omer Tene

In Europe, privacy is considered a fundamental human right. Section 8 of the European Convention of Human Rights (ECHR) limits the power of the state to interfere in citizens’ privacy, ”except such as is in accordance with the law and is necessary in a democratic society”. Privacy is also granted constitutional protection in the Fourth Amendment to the United States Constitution. Both the ECHR and the US Constitution establish the right to privacy as freedom from government surveillance (I’ll call this “constitutional privacy”). Over the past 40 years, a specific framework has emerged to protect informational privacy (see here and here and here and here); yet this framework (“information privacy”) provides little protection against surveillance by either government or private sector organizations. Indeed, the information privacy framework presumes that a data controller (i.e., a government or business organization collecting, storing and using personal data) is a trusted party, essentially acting as a steward of individual rights. In doing so, it overlooks the fact that organizations often have strong incentives to subject individuals to persistent surveillance; to monetize individuals’ data; and to maximize information collection, storage and use.

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  October 8, 2012 at 2:36 am  Tags: data protection, PETs, Privacy, surveillance, third party doctrine  Posted in: Consumer Protection Law, Cyberlaw, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Technology, Uncategorized   Print This Post   6 Comments

More on government access to private sector data

posted by Omer Tene

Last week I blogged here about a comprehensive survey on systematic government access to private sector data, which will be published in the next issue of International Data Privacy Law, an Oxford University Press law journal edited by Christopher Kuner. Several readers have asked whether the results of the survey are available online. Well, now they are – even before publication of the special issue. The project, which was organized by Fred Cate and Jim Dempsey and supported by The Privacy Projects, covered government access laws in Australia, Canada, China, Germany, Israel, Japan, United Kingdom and United States.

Peter Swire’s thought provoking piece on the increased importance of government access to the cloud in an age of encrypted communications appears here. Also see the special issue’s editorial, by Fred, Jim and Ira Rubinstein.

 

  October 2, 2012 at 2:04 am  Tags: cloud computing, data protection, Fourth Amendment, government access, Privacy  Posted in: Constitutional Law, Consumer Protection Law, Cyberlaw, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Uncategorized   Print This Post   No Comments

On systematic government access to private sector data

posted by Omer Tene

The Sixth Circuit Court of Appeals has recently decided in United States v. Skinner that police does not need a warrant to obtain GPS location data for mobile phones. The decision, based on the holding of the Supreme Court in US v. Jones, highlights the need for a comprehensive reform of rules on government access to communications non-contents information (“communications data”). Once consisting of only a list of phone numbers dialed by a customer (a “pen register”), communications data have become rife with personal information, including location, clickstream, social contacts and more.

To a non-American, the US v. Jones ruling is truly astounding in its narrow scope. Clearly, the Justices aimed to sidestep the obvious question of expectation of privacy in public spaces. The Court did hold that the attachment of a GPS tracking device to a vehicle and its use to monitor the vehicle’s movements constitutes a Fourth Amendment “search”. But it based its holding not on the persistent surveillance of the suspect’s movements but rather on a “trespass to chattels” inflicted when a government agent ever-so-slightly touched the suspect’s vehicle to attach the tracking device. In the opinion of the Court, it was the clearly insignificant “occupation of property” (touching a car!) rather than the obviously weighty location tracking that triggered constitutional protection.

Suffice it to say, that to an outside observer, the property infringement appears to have been a side issue in both Jones and Skinner. The main issue of course is government power to remotely access information about an individual’s life, which is increasingly stored by third parties in the cloud. In most cases past – and certainly present and future – there is little need to trespass on an individual’s property in order to monitor her every move. Our lives are increasingly mediated by technology. Numerous third parties possess volumes of information about our finances, health, online endeavors, geographical movements, etc. For effective surveillance, the government typically just needs to ask.

This is why an upcoming issue of International Data Privacy Law (IDPL) (an Oxford University Press law journal), which is devoted to systematic government access to private sector data, is so timely and important. The special issue covers rules on government access in multiple jurisdictions, including the US, UK, Germany, Israel, Japan, China, India, Australia and Canada.

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  September 29, 2012 at 4:34 am  Tags: cloud computing, data protection, law enforcement, national security, Privacy  Posted in: Constitutional Law, Consumer Protection Law, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Uncategorized   Print This Post   2 Comments

Lochner Boo Boo: Free Self-Exploitation?

posted by Frank Pasquale

American legal history has featured many battles over “freedom of contract,” often interpreted as the “right” of workers to sell their labor at any price, under any terms. Given the recent resurgence of extreme freedom of contract views, I thought this reflection on the reality TV show “Here Comes Honey Boo Boo” might interest readers:

Americans, it turns out, can’t get enough of Honey Boo Boo, mom June, and the rest of the clan . . . some of whom come with nicknames that seem straight out of a quaint novel about those colorful southerners, like Sugar Bear. That Here Comes Honey Boo Boo trafficked in and showcased the grossest of gross stereotypes about lower middle class southern white folk was deemed inconsequential. The family, led by matriarch June, was in on the joke. How could the family be exploited if they actively wanted to be exploited?

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  September 27, 2012 at 11:03 am   Posted in: Constitutional Law, Consumer Protection Law, Contract Law & Beyond   Print This Post   23 Comments

Big Data for All

posted by Omer Tene

Much has been written over the past couple of years about “big data” (See, for example, here and here and here). In a new article, Big Data for All: Privacy and User Control in the Age of Analytics, which will be published in the Northwestern Journal of Technology and Intellectual Property, Jules Polonetsky and I try to reconcile the inherent tension between big data business models and individual privacy rights. We argue that going forward, organizations should provide individuals with practical, easy to use access to their information, so they can become active participants in the data economy. In addition, organizations should be required to be transparent about the decisional criteria underlying their data processing activities.

The term “big data” refers to advances in data mining and the massive increase in computing power and data storage capacity, which have expanded by orders of magnitude the scope of information available for organizations. Data are now available for analysis in raw form, escaping the confines of structured databases and enhancing researchers’ abilities to identify correlations and conceive of new, unanticipated uses for existing information. In addition, the increasing number of people, devices, and sensors that are now connected by digital networks has revolutionized the ability to generate, communicate, share, and access data.

Data creates enormous value for the world economy, driving innovation, productivity, efficiency and growth. In the article, we flesh out some compelling use cases for big data analysis. Consider, for example, a group of medical researchers who were able to parse out a harmful side effect of a combination of medications, which were used daily by millions of Americans, by analyzing massive amounts of online search queries. Or scientists who analyze mobile phone communications to better understand the needs of people who live in settlements or slums in developing countries.

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  September 20, 2012 at 4:28 am  Tags: analytics, big data, data protection, Privacy  Posted in: Consumer Protection Law, Cyberlaw, Privacy, Privacy (Consumer Privacy), Privacy (Medical), Technology, Uncategorized   Print This Post   3 Comments

FTC Agonistes: From the Nader Report to the Wired Report

posted by Frank Pasquale

In 1968, a group of law student researchers helped Ralph Nader publish a highly critical report on the Federal Trade Commission. They concluded that the FTC failed to “detect violations systematically,” to “establish efficient priorities for its enforcement energy,” to “enforce the powers it has with energy and speed,” and to “seek sufficient statutory authority to make its work effective.” As Tim Muris notes, the report “lambast[ed] the agency and characteriz[ed] its overall performance as ‘shockingly poor.’”

The FTC has taken many important initiatives to respond to concerns identified in the report. But we must now reconsider agency’s record, as the digital world changes kaleidoscopically and budget restraints hamstring even the best-intentioned FTC staff.

About the closest thing we’re likely to get to another “Nader Report” was Peter Maass’s expose in Wired on challenges facing privacy enforcement and consumer protection in the digital age. Here’s one of the many issues he identifies:

The mismatch between FTC aspirations and abilities is exemplified by its Mobile Technology Unit, created earlier this year to oversee the exploding mobile phone sector. The six-person unit consists of a paralegal, a program specialist, two attorneys, a technologist and its director, Patricia Poss. For the FTC, the unit represents an important allocation of resources to protect the privacy rights of more than 100 million smartphone owners in America. For Silicon Valley, a six-person team is barely a garage startup. Earlier this year, the unit issued a highly publicized report on mobile apps for kids; its conclusion was reflected in the subtitle, “Current Privacy Disclosures Are Disappointing.” It was a thin report, however. Rather than actually checking the personal data accessed by the report’s sampling of 400 apps, the [17 page] report just looked at whether the apps disclose, on the sites where they are sold, the types of personal data that would be accessed and what the data would be used for.

As Maass notes, “The agency can take companies to court, but its overworked lawyers don’t really have the time to go the distance against the bottomless legal staffs in Silicon Valley.” Like an SEC pushed by budget constraints to pursue mere “cost of doing business” settlements, the FTC too often has to capitulate to symbolic penalties with dubious deterrent effect.
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  August 23, 2012 at 9:25 am   Posted in: Antitrust, Consumer Protection Law, Cyberlaw   Print This Post   No Comments

Privacy: For the Rich or for the Poor?

posted by Omer Tene

Some consider the right to privacy a fundamental right for the rich, or even the rich and famous. It may be no coincidence that the landmark privacy cases in Europe feature names like Naomi Campbell, Michael Douglas, and Princess Caroline of Monaco. After all, if you lived eight-to-a-room in a shantytown in India, you would have little privacy and a lot of other problems to worry about. When viewed this way, privacy seems to be a matter of luxury; a right of spoiled teenagers living in six bedroom houses (“Mom, don’t open the door without knocking”).

 

To refute this view, scholars typically point out that throughout history, totalitarian regimes targeted the right to privacy even before they did free speech. Without privacy, individuals are cowed by authority, conform to societal norms, and self-censor dissenting speech – or even thoughts. As Michel Foucault observed in his interpretation of Jeremy Bentham’s panopticon, the gaze has disciplinary power.

 

But I’d like to discuss an entirely different counter-argument to the privacy-for-the-rich approach. This view was recently presented at the Privacy Law Scholar Conference in a great paper by Laura Moy and Amanda Conley, both 2011 NYU law graduates. In their paper, Paying the Wealthy for Being Wealthy: The Hidden Costs of Behavioral Marketing (I love a good title!), which is not yet available online, Moy and Conley argue that retailers harvest personal information to make the poor subsidize luxury goods for the rich.

 

This might seem audacious at first, but think of it this way: through various loyalty schemes, retailers collect data about consumers’ shopping habits. Naturally, retailers are most interested in data about “high value shoppers.” This is intuitively clear, given that that’s where the big money, low price sensitivity and broad margins are. It’s also backed by empirical evidence, which Moy and Conley reference. Retailers prefer to tend to those who buy saffron and Kobe Beef rather than to those who purchase salt and turkey. To woo the high value shoppers, they offer attractive discounts and promotions – use your loyalty card to buy Beluga caviar; get a free bottle of Champagne. Yet obviously the retailers can’t take a loss for their marketing efforts. Who then pays the price of the rich shoppers’ luxury goods? You guessed it, the rest of us – with price hikes on products like bread and butter.

 

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  July 26, 2012 at 2:05 am  Tags: big data, data protection, discrimination, price discrimination, Privacy  Posted in: Advertising, Conferences, Consumer Protection Law, Cyberlaw, Privacy, Privacy (Consumer Privacy), Technology, Uncategorized   Print This Post   6 Comments

Volume 59, Issue 5 (June 2012)

posted by UCLA Law Review

Volume 59, Issue 5 (June 2012)

Articles

Implicit Bias in the Courtroom	Jerry Kang et al.	1124
The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law	Lumen N. Mulligan & Glen Staszewski	1188

Comments

Techniques for Mitigating Cognitive Biases in Fingerprint Identification	Elizabeth J. Reese	1252
Credit CARD Act II: Expanding Credit Card Reform by Targeting Behavioral Biases	Jonathan Slowik	1292
Shocking the Conscience: What Police Tasers and Weapon Technology Reveal About Excessive Force Law	Aaron Sussman	1342

  July 1, 2012 at 2:39 pm   Posted in: Administrative Law, Behavioral Law and Economics, Civil Procedure, Constitutional Law, Consumer Protection Law, Courts, Evidence Law, Law Rev (UCLA)   Print This Post   No Comments

Automated Arrangement of Information: Speech, Conduct, and Power

posted by Frank Pasquale

Tim Wu’s opinion piece on speech and computers has attracted a lot of attention. Wu’s position is a useful counterpoint to Eugene Volokh’s sweeping claims about 1st Amendment protection for automated arrangements of information. However, neither Wu nor Volokh can cut the Gordian knot of digital freedom of expression with maxims like “search is speech” or “computers can’t have free speech rights.” Any court that respects extant doctrine, and the normative complexity of the new speech environment, will need to take nuanced positions on a case-by-case basis.

Digital Opinions

Wu states that “The argument that machines speak was first made in the context of Internet search,” pointing to cases like Langdon v. Google, Kinderstart, and SearchKing. In each scenario, Google successfully argued to a federal district court that it could not be liable in tort for faulty or misleading results 1) because it “spoke” the offending arrangement of information and 2) the arrangement was Google’s “opinion,” and could not be proven factually wrong (a sine qua non for liability).
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  June 25, 2012 at 12:40 pm   Posted in: Antitrust, Constitutional Law, Consumer Protection Law, First Amendment, Google & Search Engines, Google and Search Engines, Privacy, Technology   Print This Post   4 Comments

Swindling/Selling, Bribing/Contributing, Extorting/Taxing

posted by Peter Swire

At the recent Security and Human Behavior conference, I got into a conversation that highlighted perhaps my favorite legal book ever, Arthur Leff’s “Swindling and Selling.”  Although it is out of print, one measure of its wonderfulness is that used copies sell now for $125.  Then, in my class this week on The Ethics of Washington Lawyering (yes, it’s a fun title), I realized that a key insight from Leff’s book applies to two other areas – what is allowed in campaign finance and what counts as extortion in political office.

Swindling/selling.  The insight I always remember from Leff is to look at the definition of swindling: “Alice sells something to Bob that Bob thinks has value.”  Here is the definition of selling: “Alice sells something to Bob that Bob thinks has value.”  See?  The exchange is identical – Bob hands Alice money.  The difference is sociological (what society values) and economic (can Bob resell the item).  But the structure of the transaction is the same.

Bribing/contributing.  So here is a bribe: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.”  Here is a campaign contribution: “Alice gives Senator Bob $10,000 and Bob later does things that benefit Alice, such as a tax break.”  Again, the structure of the transaction is identical.  There are two likely differences: (1) to prove the bribe, the prosecutor has to show that Bob did the later action because of the $10,000; and (2) Alice is probably careful enough to give the money to Bob’s campaign, and not to him personally.

 Extorting/taxing.  Here is the classic political extortion: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.”  Here is how it works when a federal or state government hires someone: “Alice hires Bob, and Bob has to hand back ten percent of his salary to Alice each year.”  The structure of the transaction is the same – Bob keeps 90% of the salary and gives 10% to Alice.  The difference here?  Like the previous example, the existence of bureaucracy turns the bad thing (bribing or extorting) into the acceptable thing (contributing/taxing).  In the modern government, Alice hires Bob, and Bob sends the payment to the IRS.  The 10% does not go to Alice’s personal use, but the payment on Bob’s side may feel much the same.

For each of these, drawing the legal distinction will be really hard because the structure of the transaction is identical for the lawful thing (selling, contributing, taxing) and for the criminal thing (swindling, bribing, extorting).  Skeptics can see every transaction as the latter, and there is no objective way to prove that the transaction is actually legitimate.

I am wondering, did people know this already?  Are there citations to previous works that explain all of this?  Or, perhaps, is this a simple framework for describing things that sheds some light and merits further discussion?

  June 16, 2012 at 9:22 pm   Posted in: Administrative Law, Consumer Protection Law, Criminal Law, Economic Analysis of Law, Election Law, Legal Theory   Print This Post   15 Comments

Epic Fantasy and Plot Plumping

posted by Dave Hoffman

Jim Rigney, the real name of Robert Jordan (best-selling author of the high-fantasy Wheel of Time Series), died several years ago. Shortly after he did, one of his friends wrote:

“Subject: Re: Who Should Not Finish WoT for Robert Jordan
From: MikesMadhouse Listmanager <MikesMadhouse.listmana…@bar.baen.com>
Date: Wed, 19 Sep 2007 06:36:49 -0400
To: (Recipients of ‘MikesMadhouse’ suppressed)

From: David Drake

Dear People,

What I said was that when Jim Rigney’s work became a significant part of not only the Tor but the Von Holzbrink bottom line, the plots for individual volumes were decided by very highly placed people in council with the author.

Business was expanded to a complete volume where it might originally have been one of several strands in a volume, and the action in minor theaters (so to speak) was followed when the author might have been willing to elide it.

I further said and will repeat: there were quite a lot of people who sneered at ‘Robert Jordan’ but whose own books wouldn’t have been published without the Wheel of Time to subsidize them. Since the onset of Jim’s (Jim Rigney’s) illness, he hadn’t been able to write–and a lot of those people are not being published any more.

Dave Drake”

 

Fantasy blogs have been debating whether Drake was telling the truth.  Obviously, if he were, it’d go a long ways to explaining why the quality of the series (which was a precursor to the Game of Thrones, and its rival in quality at least when it started) declined so precipitously.  It’s also quite irritating, and the kind of thing that makes me want to illegally download pirated e-books, or something.

But, it’s worth pointing out that despite the nastiness of this kind of publishing practice, I can’t imagine there is a thing about plot plumping which is legally actionable. That’s so even though 1) these books were extremely expensive; 2) Tor and Rigney allegedly made several million dollars per book in the series in hardcover sales alone; 3) consumers (like me!) would have been misled to think that the book was a substantial attempt to move the series forward, when actually it was just an exercise is cow-milking; 4) the purpose of this cow-milking was to profit Rigney and subsidize other authors in the firm’s booklist.  Or to put it another way, fraud isn’t the same as sharp business practice.

 

  March 23, 2012 at 8:54 pm   Posted in: Consumer Protection Law   Print This Post   No Comments

The Memory Hole

posted by Derek Bambauer

On RocketLawyer’s Legally Easy podcast, I talk with Charley Moore and Eva Arevuo about the EU’s proposed “right to be forgotten” and privacy as censorship. I was inspired by Jeff Rosen and Jane Yakowitz‘s critiques of the approach, which actually appears to be a “right to lie effectively.” If you can disappear unflattering – and truthful – information, it lets you deceive others – in other words, you benefit and they are harmed. The EU’s approach is a blunderbuss where a scalpel is needed.

Cross-posted at Info/Law.

  February 17, 2012 at 12:01 pm   Posted in: Anonymity, Architecture, Civil Rights, Consumer Protection Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Google and Search Engines, Innovation, Media Law, Political Economy, Politics, Privacy, Technology, Web 2.0   Print This Post   No Comments

The E.U. Data Protection Directive and Robot Chicken

posted by Derek Bambauer

The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece…

  January 25, 2012 at 4:32 pm   Posted in: Advertising, Architecture, Civil Rights, Consumer Protection Law, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Innovation, Politics, Privacy, Privacy (Consumer Privacy), Social Network Websites, Technology, Web 2.0   Print This Post   No Comments

Recommended Reading: The People’s Agents and the Battle to Protect the American Public

posted by Danielle Citron

My colleague Rena Steinzor and Sidney Shapiro recently published The People’s Agents and the Battle to Protect the American Public: Special Interests, Government, and Threats to Health, Safety, and the Environment (University of Chicago Press).  The book analyzes the performance of five agencies they call the “protector agencies:”  the Consumer Product Safety Commission, Environmental Protection Agency, Food and Drug Administration, National Highway Traffic Safety Administration, and Occupational Safety and Health Administration.  Its findings are grim.  Using case studies, the book shows how the protector agencies are malfunctioning and explores the sources of the trouble.  It attributes the disappointing performance of the agencies to external pressures, including the President’s requirement that agencies engage in cost-benefit analysis before issuing a major rule and other forms of Presidential interference as well as the weakening of the civil service and inadequate funding and staffing of agencies.  The book offers thoughtful solutions that are carefully tailored to the problems that the authors identify.

Richard Pierce reviewed the book in the George Washington Law Review, and he writes that this “excellent book is compulsory reading for anyone who is interested in the performance of regulatory agencies.”  For Pierce, the “book is so well researched and well written that I learned a lot even from the chapters with which I disagree.”  He explains that, for instance, while he continues to believe in agency cost-benefit analysis for major rules, the authors “do such a good job of criticizing the cost-benefit analysis requirement and of documenting its bad effects that I am forced at least to acknowledge the need for major changes in the ways in which agencies and the White House implement” it.  The authors also “provide an accurate and persuasive account of the many adverse effects of the hard look doctrine,” that is, the judicial requirement that an agency must take a hard look at a problem and its potential solutions before issuing a rule, and prescribe a new approach that would be less intrusive and more determinate.  Pierce ends the review with this:

Justice Scalia once said that ‘Administrative law is not for sissies –so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture’  I highly recommend that anyone who is interested in the future of administrative law and government regulation read Steinzor and Shapiro’s important book.  But to paraphrase Justice Scalia, you should not read the Steinzor and Shapiro book in conjunction with this review unless you are prepared to “lean back, clutch the sides of your chairs, and steel yourselves for” a serious encounter with depression.  Oh, and you should make sure there are no sharp objects in the vicinity if you take seriously both the points Steinzor and Shapiro make in their book and the points I make in this review.”

  July 22, 2011 at 5:44 pm   Posted in: Administrative Law, Consumer Protection Law, Environmental Law   Print This Post   One Comment

SCOTUS AT&T Opinion Par for Rhetorical Course

posted by Lawrence Cunningham

Par for the Supreme Court course, its opinion in AT&T Mobility is rich with empty rhetoric about arbitration being a creature of contract while being more explicit than ever that what matters in these cases is the Court’s powerful national policy strongly favoring a particular form of arbitration over other ways to resolve disputes.

In finding preempted California contract law holding unconscionable clauses in consumer adhesion contracts mandating bilateral arbitration, the Court’s 5-4 opinion by Justice Scalia breaks only that little bit of new ground. 

The opinion’s principal notable points are (1) to stress more intensively than ever that a primary purpose of federal arbitration law is to promote bilateral arbitration, to streamline dispute resolution, and celebrate the informality of bilateral arbitration against class arbitration and (2) to elaborate the differences between bilateral and class arbitration that the Court assumed everyone knew in last term’s Stolt-Neilsen opinion.  And the Court continues to say that all of this is a matter of contract!

The Court stresses that its jurisprudence treats the federal arbitration statute as expressing both a liberal federal policy favoring arbitration and that arbitration is a matter of contract. Without showing awareness of the inherent conflict in this paired purpose, and parading its rhetorical feathers, the Court said the upshot is to put arbitration agreements on an equal footing with other contracts, including as to defenses.

The Court could not accept the validity of the California unconscionability defense, however, because it did not advance the national policy. Justice Scalia gave a new definition of that national policy, again combining two ideas that are in conflict while pretending they are in harmony: “to ensure enforcement of arbitration agreements according to their terms, so as to facilitate streamlined proceedings” (emphasis added).

The opinion fights tirelessly but unsuccessfully to prove that it has not made up this new version of the national policy. It struggles strenuously but unsuccessfully to persuade us that there is no conflict between its devotion to arbitration and basic principles of Anglo-American contract law. Read the rest of this post »

  April 27, 2011 at 5:44 pm   Posted in: Consumer Protection Law, Contract Law & Beyond, Supreme Court   Print This Post   4 Comments

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