CONSUMER LAW eJOURNAL

"Bitcoin and the Future of Digital Payments" Free Download

WILLIAM J. LUTHER, Kenyon College
Email:

In just six years, bitcoin has gone from a relatively obscure piece of code to an internationally recognized form of payment. Yet, opinions about bitcoin’s future are mixed. After considering the major factors affecting bitcoin’s future use, I offer some modest predictions. In brief, I expect (1) the share of electronic transactions will continue to increase; (2) blockchain technology will be widely adopted to process these digital payments; (3) bitcoin and other cryptocurrencies, to the extent that they survive at all, will likely function exclusively as niche monies; and (4) bitcoin or some other cryptocurrency might function as more than a niche money in countries with especially weak currencies, even though these countries would seem to pose the greatest regulatory risk to bitcoin.

"'Abusive' Acts and Practices: Dodd-Frank's Behaviorally Informed Authority Over Consumer Credit Markets and its Application to Teaser Rates" Free Download
New York University Journal of Legislation and Public Policy, Forthcoming

PATRICK CORRIGAN, New York University School of Law
Email:

The Dodd-Frank Wall Street Reform and Consumer Protection Act, enacted in 2010, authorizes the Consumer Financial Protection Bureau (CFPB) to prohibit abusive acts and practices that, among other things, materially interfere “with the ability of a consumer to understand a term or condition? as well as acts and practices that take “unreasonable advantage of a lack of understanding on the part of the consumer of the material risks, costs, or conditions of the product or service.? The project of this Note is to understand Congress’s grant of abuse authority to the CFPB. The thesis is that the statutory language of the abuse authority, and particularly its focus on consumer “understanding,? rejects traditional neoclassical economic logic. Instead, the abuse authority directs the CFPB to regulate problems articulated by the burgeoning literature of behavioral law and economics, particularly problems of imperfect rationality. Drawing on lessons from antitrust law, this paper proposes a legal standard for operationalizing the abuse standard. Putting this standard into practice, the paper asks whether the CFPB might be justified in regulating a common pricing structure in credit card markets — credit card teaser rates — under its abuse authority.

"In Response to Rafael I. Pardo's the Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy" Free Download
66 Florida Law Review Forum 72 (2015)
U of Houston Law Center No. 2015-A-14

MICHAEL A. OLIVAS, University of Houston Law Center
Email:

In this essay, I attempt two impossible tasks. First, limited to approximately 1,000 words, I respond to Professor Rafael Pardo’s towering 78 page article, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy. Second, I am resisting the temptation to footnote every point I make, and so resort to what is for me a radical task of not using my usual number of footnotes, in contrast to his nearly 500 (most of them heavily annotated and elaborated). There can be little doubt that Professor Pardo has done for student loan debt and its “Undue Hardship? (UH) provisions what Senator (née Professor) Elizabeth Warren did for consumer and family bankruptcy — turn it inside out, study its nooks and crannies, and explain its nuances and intricacies. For this, we all owe him a great debt of gratitude and praise. Reading Thicket almost makes me cry, it is so encyclopedic, thorough, and detailed. Added to his earlier works, he has become among the most accomplished researchers and surveyors of this vast area. And one gets the impression that he has not even scratched the surface, as there are many miles to go before he sleeps. He has begun to litigate these issues — a point to which I will return — but he still has not fully gotten his arms around the crucial need for a better discursive narrative in this field.

"The EU Public Interest Clinic and BEUC Present: Eliminating Airline 'No-Show Clauses' in the EU" Free Download

JESSICA BOULET, New York University (NYU), School of Law
Email:
CARTER NELSON, New York University (NYU), School of Law, Students
Email:
MEGANE SEGUIN, HEC Paris
Email:
LAMIN KHADAR, New York University (NYU) - NYU School of Law (Paris), HEC Paris, European University Institute, Students
Email:
ANNE-LISE SIBONY, Université de Liège
Email:
ALBERTO ALEMANNO, HEC Paris, NYU School of Law
Email:

The following paper, prepared by the HEC-NYU EU Public Interest Clinic for BEUC (the European consumers organization), advocates for the elimination of so-called “no-show clauses? throughout the European Union.

No-show clauses operate by permitting airlines to cancel reservations of passengers who have missed either: (a) the first leg of a multi-leg itinerary; or (b) the outbound flight of a round-trip itinerary. These controversial no-show clauses have long been a staple of sales contracts for airline tickets, despite long-standing objections from various stakeholders and, increasingly, from national courts in the European Union.

Although the European Commission has issued a proposal to (partially) ban no-show clauses, which was supported and even reinforced by the European Parliament, the Council has removed the relevant provision from the legislative proposal.

This paper explores several arguments put forward by different stakeholders, particularly BEUC and the airline industry, regarding the use of the no-show clause in airline contracts.

BEUC makes two central arguments in favour of a ban of the no-show clause:
1. No-show clauses are unfair under Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts. Counter to the requirements of that Directive, no-show clauses create a “significant imbalance? between the consumer and the airline. This is further demonstrated by their close resemblance to many of the terms listed in the Directive’s Annex as “indicative of… the terms which may be regarded as unfair.?
2. Several EU Member State courts have already struck down no-show clauses. Both the German and Spanish courts have ruled that no-show clauses are unfair contract terms, following national laws based on the unfair contract terms directive (Directive 93/13/EEC) reasoning, inter alia, that:
a. The loss of the entire ticket as a result of the choice not to use part of it is disproportionate and lacks plausible justification.
b. Such clauses create a significant imbalance between the consumer and the airline in that the consumer does not receive any proportionate or additional benefit for the curtailment of their right to not travel.
c. Such clauses constitute an impermissible “surprise? for consumers, since no justification for denied boarding would exist absent the clause.

Airlines, meanwhile, make both:
1. Commercial arguments suggesting that such clauses are a crucial part of airline pricing strategy and competition within the air travel market; and
2. Legal arguments suggesting that an international agreement, namely the Open Skies Agreement (OSA), prevents the EU from banning the use of no-show clauses in any event.

However, we refute these arguments by demonstrating that:
• No-show clauses are not commercially essential because if no-show clauses were prohibited, airlines would be left with a range of other pricing strategies that may compensate for this loss.
• Eliminating no-show clauses would not force airlines to withdraw from certain markets. Firstly, given the relatively small cost of individual flights, airlines will not reduce the number of flights on certain routes as long as there is demand for those flights. Secondly, if serving certain markets is becoming too expensive, airlines should (and have) cut costs rather than unfairly penalizing passengers.
• Rather than reducing competition, eliminating no-show clauses might actually increase competition within the European airline market by requiring airlines to compete for business on every leg of passenger’s trip.
• The language of the Open Skies Agreement leaves it open to the EU to ban no-show clauses; an EU ban on the no-show clause would not be at odds with the object and purpose of the Open Skies Agreement. 

"Luck, Justice and Systemic Financial Risk" 
Journal of Applied Philosophy, Forthcoming

JOHN LINARELLI, Durham University
Email:

Systemic financial risk is one of the most significant collective action problems facing societies. The Great Recession brought attention to a tragedy of the commons in capital markets, in which market participants, from first-time homebuyers to Wall Street financiers, acted in ways beneficial to themselves individually, but which together caused substantial collective harm. Two kinds of risk are at play in complex chains of transactions in financial markets: ordinary market risk and systemic risk. Two moral questions are relevant in such cases. First, from the standpoint of interactional morality, does a person have a moral duty to avoid risk of harm to others if their financial transactions contribute in some way, however small, to the loss or harm? This paper identifies the conditions in which persons are morally responsible in such cases. Second, from the standpoint of institutional morality, how should society distribute the risk of harm associated with massively complex financial markets? This question is considered in the context of the home mortgage credit market. Luck egalitarianism, in particular a Dworkinian insurance scheme to allocate risks and resources relating to mortgage credit and private home ownership, offers substantial promise.

^top

About this eJournal

This eJournal distributes working and accepted paper abstracts of articles, recently published articles, books, legislative reports, conferences, and other publications that address issues of interest to consumer law scholars and practitioners. Coverage includes legal issues pertaining to advertising, consumer reporting (including credit repair organizations), discrimination (including redlining), consumer disclosure (such as the Truth in Lending Act, the Real Estate Settlement Procedures Act, and consumer leasing), consumer fraud (including issues arising under the Federal Trade Commission Act, state UDAP statutes, odometer laws, referral sales, and bait and switch statutes), unconscionability, standard form contracts, consumer privacy (including telemarketing, spam, spyware, phishing, direct mail, financial privacy, common law privacy torts in consumer transactions, and online privacy), identity theft, data protection, cooling off rules (including door to door sales regulation), payment systems (such as credit and debit cards, internet payment issues, stored value cards (including gift cards and phone cards), and electronic transfers), warranties (including UCC warranties, lemon laws, and the Magnuson-Moss Warranty Act), consumer product safety, commercial speech doctrine, debt collection, repossession, predatory lending (including asset-based lending, equity stripping, flipping, balloon payments, negative amortization, loan packing, rate-risk disparities and yield-spread premiums), payday lending, usury, credit insurance, electronic shopping (including electronic signatures and records, formation of contracts, and payments), the holder in due course regulation, mortgages, student loans, repossession, foreclosure, regulation that pertains to consumer markets and enforcement of consumer laws (including class actions, preemption, arbitration, administrative enforcement, small claims courts and attorney's fees). The eJournal does not cover landlord-tenant issues or criminal law. The eJournal welcomes a broad range of methodological approaches, including conventional doctrinal analyses, law and economics approaches, historical discussions, socio-legal analyses, law and society approaches, discussions of consumer psychology that bear on legal issues, international law analyses and comparative law approaches.

Editor: Jeff Sovern, St. John's University

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Consumer Law eJournal

RICHARD M. ALDERMAN
Associate Dean, Director - Consumer Law Center, Dwight Olds Chair in Law, University of Houston Law Center

JEAN BRAUCHER
Roger Henderson Professor of Law, University of Arizona - James E. Rogers College of Law

MARK ELLIOTT BUDNITZ
Professor of Law, Georgia State University College of Law

MICHAEL M. GREENFIELD
George Alexander Madill Professor of Contracts and Commercial Law, Washington University in Saint Louis - School of Law

ALVIN C. HARRELL
Professor of Law, Oklahoma City University - School of Law

CREOLA JOHNSON
Professor of Law, Ohio State University - Michael E. Moritz College of Law

DEE PRIDGEN
Associate Dean and Professor of Law, University of Wyoming College of Law

IAIN D. C. RAMSAY
Professor of Law, University of Kent, Canterbury - Kent Law School

RALPH J. ROHNER
Professor of Law, Catholic University of America - Columbus School of Law

NORMAN I. SILBER
Associate Dean for Intellectual Life and Professor of Law, Hofstra University School of Law