Archive for the ‘Consumer Protection Law’ Category
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.
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).
Read the rest of this post »
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
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?
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
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.
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.
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
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
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.”
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 »
posted by Lawrence Cunningham
Lawyers keep telling clients that arbitration is a matter of contract, not coercion. That follows Supreme Court rhetoric that’s belied by Supreme Court practice. The Court’s pending case in AT&T Mobility v. Concepcion gives the Court a final chance to resolve the gap between its talk and action concerning arbitration.
I doubt, however, the Court will seize the opportunity. Instead, the Court likely will continue to tell us that its arbitration jurisprudence is merely applied contract law, while its applications will continue to coerce people into arbitration because the Court has established a national policy favoring arbitration.
That is the lamentable assessment provided in my new article on the subject, Rhetoric versus Reality in Arbitration Jurisprudence: How the Supreme Court Flaunts and Flunks Contracts (and Why Contracts Teachers Need Not Teach the Cases).
As with practicing lawyers, legal scholars have generally ignored this rhetoric-reality gap too, many routinely repeating that arbitration is all about contract (a notable exception is David Horton). As a teacher of Contracts for 20 years, I began to hear this rhetoric last summer, beginning with my receipt of a reprint of an Illinois Law Review article by noted arbitration scholar Thomas Stipanowich.
In a comprehensive review of the state of arbitration law and practice, the piece criticized editors of Contracts casebooks for paying too little attention to arbitration and especially to how the attention given was often extremely negative. With modest exceptions, including in Ian Ayres’ casebook, Contract law books and courses have not generally treated arbitration much and the treatment often is in the context of illustrating doctrines like unconscionability or lopsided terms not comporting with reasonable expectations of a community.
I began following pending Supreme Court cases on the subject and scrutinizing those handed down in preceding terms. I found the talk about contracts and contract law intriguing because it made it sound as if arbitration was at the center of contract law and that contract law was at the center of arbitration law. That made it seem irresponsible for me, Contracts casebook editors, and other teachers, to leave arbitration at the margins of the Contracts course or outside it altogether.
Alas, the truth is that contract and contract law have so little to do with what happens in arbitration jurisprudence, particularly compared to Court rhetoric, that it would confuse or mislead students taking Contracts to provide it as an illustration. To that extent, arbitration warrants the glancing treatment in the Contracts course it gets, followed by an optional upper-level course.
Among the many costs of the Court’s rhetoric-reality gap are those manifest in the AT&T case, on which the Court is now struggling to write an opinion.
posted by Frank Pasquale
Two items of note on this topic recently. First, the NYT reports on NHTSA’s lazy approach to IP overreach by automakers:
For years, the National Highway Traffic Safety Administration has declined to post on its Web site reports from automakers about problems with their cars and about specialized warranty extensions that could save consumers large sums on repairs. . . . The technical service bulletins . . . provide information on unusual problems with vehicles . . . . Special service campaigns are a form of technical service bulletin that often tell dealers of warranty extensions for particular repairs. “Many manufacturers have asserted that technical service bulletin information is copyrighted and will not waive those copyrights,” [said] an agency spokeswoman . . . . “N.H.T.S.A. has a legal obligation to abide by copyright law.”
NHTSA could easily excerpt the gist of bulletins as fair use. Or it could communicate facts in them without using any of the actual language or diagrams they contain. Anyone who has taken a week of copyright knows about the idea/expression or fact/expression dichotomy. But copyfraud obfuscates this obvious workaround.
Second, ongoing legal battles over Toyota’s sudden acceleration incidents may lead to “security measures typically reserved for classified government secrets:”
The fight centers on access to Toyota’s source code, the software that controls sophisticated engine management and other electronics in its vehicles. Plaintiffs’ attorneys believe the code might contain evidence that could bolster their cases. The Japanese auto maker has been fighting to restrict access to the software, saying it needs to protect what it calls the “crown jewel” of its global enterprise.
Toyota said the attorneys should only be allowed to view parts of the code in a highly secure room, the likes of which is used by members of Congress or in trials against terrorists and spies for viewing classified information.
As I note in the piece, this kind of “qualified transparency” will become more and more common in tech disputes. Debates about “channeling” innovation protection (to patent or trade secret law) will increasingly need to take into account how patent law’s disclosure function could help more people understand potentially dangerous products.
posted by Lawrence Cunningham
Earlier this month a California appellate court affirmed a lower court ruling invalidating early termination fees in cell phone service contracts. The affirmance stressed different reasoning than the lower court (which I discussed here). To the appellate court, Sprint’s ETFs were invalid because it set them without regard for their relation to the company’s actual damages; the trial court rested its ruling in part on how the fees were vastly lower than Sprint’s actual damages.
In a dozen lawsuits nationwide, champions of cell phone customers argued that ETFs penalize them by trapping them with a single provider. Most of the lawsuits settled before final resolution and few judicial opinions addressed the merits. The Sprint case is an exception. Both sides agreed that Sprint’s damages would be difficult to determine with reasonable certainty, meeting prong one of the traditional test for the validity of liquidated damages clauses.
Proponents of liquidated damages clauses, especially in consumer contracts, must show that they made a reasonable endeavor to set them with some relation to actual damages, however difficult they are to fix. Inquiry focuses on both what the party intended and the effects. In Sprint’s case, it couldn’t point to any intention to relate the ETFs to its losses. Rather, the entire ETF program was created and implemented by the company’s marketing department as a way to keep customers. Though Sprint may not have intended to set fees exceeding losses, as it contended, that argument gained it nothing because it showed no intention whatsoever concerning the relationship between the ETFs and its losses.
posted by Michelle Harner
A Federal Reserve staffer suggested this week that the Fed will defer a key consumer decision to the newly-created Consumer Financial Protection Bureau (CFPB). That decision concerns homeowners’ rights of rescission. The rescission right gives a homeowner a certain period of time (in some cases up to three years) to challenge a mortgage on the grounds of misrepresentation or inadequate disclosure and requires the mortgagor to release its lien on the subject property. As you might guess, the rescission remedy has been invoked extensively in the recent economic downturn.
The mortgage industry has been encouraging the Federal Reserve to address the rescission issue with a sense of urgency, perhaps fearing what might happen to the rule after July 21, 2011—the date that authority on such issues is transferred to the CFPB. The Federal Reserve looked poised to make a move, having proposed a rule in September 2010 that would significantly restrict the circumstances under which a homeowner could seek to rescind a mortgage. The comment period for the proposed rule closed on December 23rd, and, despite opposition by consumer groups, many thought the Federal Reserve would continue to pursue the proposal.
A decision by the Federal Reserve to defer this particular issue to the CFPB would be consistent with the CFPB’s objective to consolidate the oversight and implementation of consumer protection regulations in a single agency. It may not, however, produce a result consistent with the intent of the Federal Reserve’s proposed rule and the desires of many in the mortgage industry. One of the CFPB’s charges is to oversee the mortgage and credit card industries, including the language and substance of consumer disclosures. Given the CFPB’s preemption provisions (which favor enforcing state consumer protection laws), the CFPB’s proposed partnership with state attorneys general and the robo-signing and related concerns swirling around the mortgage industry, I doubt that weakening consumers’ rescission rights is high on the priority list.
I look forward to seeing how this and other pressing consumer issues play out, particularly after July 21st. The CFPB is starting to take shape (see here and here), and it appears that it will hit the ground running. (For interesting Q&A with Elizabeth Warren on the CFPB, see here and here.) In any event, the agency certainly has its work cut out for it.
posted by Sasha Romanosky
Thanks so much to Danielle and Concurring Opinions for inviting me to blog. This is an exciting opportunity and I look forward to sharing my thoughts with you. Hopefully you will find these posts interesting.
There are many policy interventions that legislators can impose to reduce harms caused by one party to another. Two that are very often compared are safety regulations (mandated standards) and liability. They lend themselves well to comparison because they’re generally employed on either side of some harmful event (e.g. data breach or toxic spill): ex ante regulations are applied before the harm, and ex post liability is applied after the harm.
A third approach, one that we might consider ‘sitting between’ regulation and liability, is information disclosure (e.g. data breach disclosure (security breach notification) laws). I’d like to take a few paragraphs to compare these alternatives in regards to data breaches and privacy harms.
December 6, 2010 at 11:51 am Posted in: Behavioral Law and Economics, Consumer Protection Law, Cyberlaw, Economic Analysis of Law, Legal Theory, Privacy (Consumer Privacy), Privacy (ID Theft), Uncategorized Print This Post 4 Comments
posted by Frank Pasquale
With each passing week, there are more embarrassing revelations about foreclosure practices. Here’s a mind-boggling chart, limning failures to follow “obligations . . . from secured credit and trust law.” Adam Levitin argues that most legal observers are slow to recognize how bad things have gotten, because they believe “there’s no way there were massive screw-ups because thousands of top Wall Street legal minds were working on securitization deals.” Levitin responds: “the best legal minds in the country weren’t doing diligence on endorsements on securitization deals.”
After reading Levitin’s testimony, and much of Michael Hudson’s book The Monster, I was reminded of a Global Witness report called Undue Diligence: How Banks Do Business with Corrupt Regimes. The report shows how major financial institutions have enhanced their profits by not looking too carefully into the details of transactions they engage in. As Global Witness concludes:
Read the rest of this post »
posted by Lawrence Cunningham
Power between enterprises and individuals hangs in the balance as the U.S. Supreme Court considers whether organizations can prevent people from banding together to challenge crooked practices that involve stealing small sums from large numbers of people. The judges and lawyers engaged in a riveting oral argument on the hot topic in a case pitting the mighty AT&T against a couple of California citizens. The case also pits the federal government against the states.
At issue are the clauses that companies now routinely include in standard form consumer contracts requiring disputes to be resolved in one-on-one arbitration. People give up the right to mount class claims in arbitration or court. Some unscrupulous companies use this as a way to cheat large numbers of people out of small amounts of money.
Companies following this route benefit from a strict federal law (the Federal Arbitration Act, or FAA) saying states cannot treat arbitration clauses differently than they treat other contracts. Courts nationally have struggled to evaluate whether these clauses pass standard contract tests of unconscionability. Yesterday’s case will determine whether those states are taking the right approach.
The principal theme of questioning probed how the Justices could tell if a state’s judges comply with the FAA’s mandate to treat arbitration clauses like other contracts. The company’s lawyer (Andrew Pincus) said it was simple: look at the general unconscionability doctrine applied to all contracts and compare it to the unconscionability doctrine applied to arbitration clauses.
posted by Lawrence Cunningham
Include the Hollywood-based actor Nicolas Cage on the list of victims amid the real estate crisis and ensuing foreclosure flood. A California court last week ordered him to honor the judgment of a Nevada court by paying $2.4 million to a lender who foreclosed on the actor’s Las Vegas resort home. As with many other borrowers, though, Cage doesn’t have the money to pay.
That may sound astonishing for an actor whose 50 roles in big films over 20 years make him among the highest paid people in the world. Cage’s problem apparently is that, despite the massive cash, he still lives beyond its means.
Besides an apparent spending compulsion, during the real estate boom of the 2000s, he acquired dozens of properties whose prices seem to have risen catastrophically just before he bought them, and fell to the depths in the last three years. Not having any savings to buffer the losses, he’s in default not only on housing bills but owes millions in back taxes.
Financial embarrassment is compounded by bad publicity about his lifestyle. Some he brought on himself. By filing a $20 million lawsuit blaming his straits on his manager, Samuel Levin, Cage provoked a counterclaim with mortifying allegations of a life out of control, even by Hollywood standards.
The allegations in Cage’s complaint sound far-fetched; Levin’s counterclaim sought a mere $120,000 for unpaid fees, small under a contract that paid Levin 5% of Cage’s income since 2001 (running to many millions). That may explain reports saying the suit and countersuit have been dismissed. But some of the pleadings are salacious–with lessons for everyone.
NOTE: For more stories like this about celebrities and their dealings, see the author’s new book CONTRACTS IN THE REAL WORLD: STORIES OF POPULAR CONTRACTS AND WHY THE MATTER.
Read the rest of this post »
posted by Ryan Calo
I don’t know that generativity is a theory, strictly speaking. It’s more of a quality. (Specifically, five qualities.) The attendant theory, as I read it, is that technology exhibits these particular, highly desirable qualities as a function of specific incentives. These incentives are themselves susceptible to various forces—including, it turns out, consumer demand and citizen fear.
The law is in a position to influence this dynamic. Thus, for instance, Comcast might have a business incentive to slow down peer-to-peer traffic and only refrain due to FCC policy. Or, as Barbara van Schewick demonstrates inter alia in Internet Architecture and Innovation, a potential investor may lack the incentive to fund a start up if there is a risk that the product will be blocked.
Similarly, online platforms like Facebook or Yahoo! might not facilitate communication to the same degree in the absence of Section 230 immunity for fear that they will be held responsible for the thousand flowers they let bloom. I agree with Eric Goldman’s recent essay in this regard: it is no coincidence that the big Internet players generally hail from these United States.
As van Schewick notes in her post, Zittrain is concerned primarily with yet another incentive, one perhaps less amenable to legal intervention. After all, the incentive to tether and lock down is shaped by a set of activities that are already illegal.
One issue that does not come up in The Future of the Internet (correct me if I’m wrong, Professor Zittrain) or in Internet Architecture and Innovation (correct me if I’m wrong, Professor van Schewick) is that of legal liability for that volatile thing you actually run on these generative platforms: software. That’s likely because this problem looks like it’s “solved.” A number of legal trends—aggressive interpretation of warranties, steady invocation of the economic loss doctrine, treatment of data loss as “intangible”—mean you cannot recover from Microsoft (or Dell or Intel) because Word ate your term paper. Talk about a blow to generativity if you could.
posted by Salil Mehra
First off, thanks to Concurring Opinions and Danielle Citron for hosting this online symposium on Jonathan Zittrain’s The Future of the Internet – and How to Stop it. Before I launch into my own thoughts, I want to add my own version of the praise that the book has already won. It is an immensely readable work that succeeds in showing us where we’ve been, how we got to where we are, and the steps to take to avoid going where we’d rather not be.
I have three brief points, involving a comparison with Japan, some thoughts about competition, consumer protection and innovation, and finally, a somewhat different take on the lessons of Wikipedia.
This symposium is incredibly timely, particularly given the concern in recent weeks about the Google/Verizon agreement. In TFOTI, Zittrain highlights the risks that threaten the Internet’s future, and explains how the net neutrality debate is in some ways a mismatch for those risks. For example, he points out that the migration from the Internet to, in his words, tethered appliances like the iPhone and TiVo, ultimately provide an end-run around net neutrality on the Internet (pp. 177-185). Accordingly, he argues that preserving generativity is a better-tailored principle.
The lead in The Economist this week also takes on the Google/Verizon agreement, and critiques net neutrality from a different angle calling America’s “vitriolic net-neutrality debate” “a reflection of the lack of competition in broadband access.” If you’re reading this symposium, you probably already know, possibly because you read this, that in many other industrialized countries incumbent telcos were forced years ago – and not just in a superficial way – to open up wholesale broadband to competitors.
I’m in Tokyo this academic year thanks to Temple’s long reach across the globe and to my gracious hosts at Keio University Law School. I’ve been travelling to Japan repeatedly since the late 1980s, and one of the changes I’ve been struck by is how a country that in the 1990s was generally held to be well behind the U.S. in telecommunications now seems ahead in broadband and mobile Internet. Read the rest of this post »
posted by Lawrence Cunningham
Just as the hottest practical topic in contract law during the 1990s was whether corporate employee handbooks could be enforced as contracts, among today’s hot practical contract law topics is whether corporate policy statements, especially on the internet, can be enforced as contracts. We’re in the beginning of a struggle on that point, whose dynamic echoes that of the handbook cases of two decades ago—and we might learn something from them.
Before the 1980s, the common law of contracts was clear that employee handbooks weren’t offers to form contracts and wouldn’t be binding anyway for lack of consideration. Policy statements about employee retention, even those promising not to discharge employees except for cause, weren’t enforceable.
As human resources departments spruced up those handbooks through the late 1980s and early 1990s, to express firmer commitments in seductive language, and the documents proliferated nationally, the doctrine shifted. The handbooks could, if reasonably manifesting such a signal, be offers to form unilateral contracts with employees. By reporting for work every day, employees could be seen to take the action necessary to form a unilateral contract on the handbook’s terms, supplying requisite consideration.
From this shifting legal landscape, employers got the message and took care in handbooks to say what they meant and to mean what they said. The glossy boastful brochures returned to the form of practical utilitarian guides, not dangling inducements of job security that might, for example, discourage unionization.
posted by Glenn Cohen
Over the summer at the annual health law professors’ conference organized by ASLME, I saw a wonderful presentation on Flynn v. Holder from John Robertson, which I think John will be publishing soon. The case is a challenge to the National Organ Transplant Act (NOTA) of 1984’s ban on selling bone marrow filed in the U.S. District Court, Central District of California, and you can view the complaint here.
My main interest in the case is how it will compare to Abigail Alliance v. Eschenbach, a case I helped litigate at the D.C. Circuit en banc stage when I was at the DOJ. Abigail Alliance involved a challenge by terminally ill patients to have access to drugs that had cleared Phase 1 Clinical Testing but had not gone further in the testing process. There, the plaintiffs succeeded in getting a panel of the D.C. Circuit to to hold that a fundamental right of theirs was being violated by the FDA policy, with a remand for consideration of whether the government could make its showing on strict scrutiny. On rehearing en banc, however, the full D.C. Circuit reversed gears finding no fundamental right (there was no serious argument in the case that the government would not prevail on rational basis review).
In many ways, Flynn is a beautifully set up test case. The primary plaintiff is very sympathetic — a “single mother of five with three daughters who suffer from a deadly bone marrow disease.” Because bone marrow is renewable, and many other renewable “organs” (think sperm and egg) explicitly fall outside of NOTA’s prohibition, there is an air of arbitrariness here. The plaintiffs do not want to buy bone marrow in crass commercial terms, but instead to “create a pilot program that would encourage more bone marrow donations by offering nominal compensation—such as a scholarship or housing allowance.” While I do not think this fact actually allows us to avoid the the corruption form of the anti-commodificationist argument (I may blog more on that topic soon), on a superficial level it does seem to reduce the strength of at least one talking point. The fact that we already tolerate altruistic bone marrow donation suggests that the risk-prevention rationale that was central in Abigail Alliance faces some problems here. Indeed as I , Lori Andrews, and others have argued in the context of reproductive services, in some ways the “coercion” or “exploitation” concerns that are sometimes raised in anti-commodificationist arguments may be more worrisome in the altruistic and familial setting than in arm’s length market arrangements. The case also seems to compare favorably on crowding-out concerns. Although the Abigail Alliance court did not reach the issue (because whether a fundamental right was present dominated the analysis) the government offered a somewhat attenuated crowding out argument: that the availability of experimental drugs outside of clinical trials would reduce the enrollment in clinical trials, and therefore slow either approval of these drugs (and widespread availability) or a demonstration that they were unsafe or ineffective. Though attenuated, this was a concern that many took quite seriously in the run-up and aftermath of the case. Here, by contrast, I think the crowding out argument is more straightforward and is similar to one that people associate with Richard Titmuss’ work as to blood sale, that adding commercial elements will drive altruistic donation out of the market. To be sure that is an empirical claim, but one that seems less plausible to me than the parallel claim in Abigail Alliance, and I think here again the charitable/foundation approach may blunt some concerns about the transformation of the social meaning of bone marrow donation.
posted by Dave Hoffman
A man has bad teeth. He chews Trident Xtra Care gum, which promises that it “Strengthens and Rebuilds Teeth” by “fill[ing] in the tiny crevices where cavities can form and leav[ing] teeth more resistant to plaque acids.” His teeth remain rotten. It’s America. So he sues for deceptive business practices, and seeks to represent a class of gum purchasers. You name the defenses.