Table of Contents

The Importantce of Law and Harmonisation for the EU’s Confident Consume

Christian Twigg-Flesner, University of Hull

Modifying Mortgage Discrimination in Consumer Bankruptcy

Abbye Jo Atkinson, Stanford Law School

Ethical Culture and Legal Liability: The GM Switch Crisis and Lessons in Governance

Marianne M. Jennings, Arizona State University
Lawrence J. Trautman, American University, George Washington University, Oklahoma City University - School of Law

Outing Privacy

Scott Skinner-Thompson, New York University School of Law

Trouble Spots in Online Direct-to-Consumer Prescription Drug Promotion: A Content Analysis of FDA Warning Letters

Hyosun Kim, University of North Carolina (UNC) at Chapel Hill - School of Journalism and Mass Communications


"The Importantce of Law and Harmonisation for the EU’s Confident Consume" Free Download
D.Leczykiewicz and S.Weatherill (eds.), The Images of the Consumer in EU Law (Hart, 2015).


This paper argues that the EU’s notion of the “confident consumer? over-emphasises the significance of law, and harmonised law in particular, as an end in itself, without considering properly (i) all the various issues which affect consumer confidence, and (ii) whether the legal rules adopted by the EU really help to boost consumer confidence. It will first consider the “consumer confidence? notion as reflected in the various directives, and link this to the general notion of the “average consumer? before examining how the substantive provisions in these directives reflect the objective of enhancing consumer confidence. This will also take into account relevant judgments of the Court of Justice of the European Union (CJEU) on the interpretation of particular provisions. It will then argue that too much emphasis has been put on law for law’s sake, at the expense of establishing what legal rules would promote consumer confidence, particularly in the internal market.

"Modifying Mortgage Discrimination in Consumer Bankruptcy" Free Download
Arizona Law Review, Vol. 57, 2015

ABBYE JO ATKINSON, Stanford Law School

The subprime mortgage crisis that helped to bring on the Great Recession resulted in the decimation of housing-related wealth among economically disenfranchised groups and communities. These losses were in significant part the direct result of the rampant racialized and geographic mortgage discrimination that took place in these communities in the run-up to the financial crisis and persists today. The Bankruptcy Code, however, offers little relief to these and other distressed homeowners because the Code’s “anti-modification? provision limits a distressed homeowner from modifying the terms of a mortgage on her primary residence. The anti-modification provision is particularly troubling for economically disenfranchised groups and communities because it operates at the intersection of three social and economic factors: (1) the importance of homeownership to wealth acquisition and retention in the economically disenfranchised communities; (2) the persistence of predatory lending relationships that lead to high loan-to-value ratios on mortgages, and in turn a greater risk of underwater mortgages; and (3) foreclosure externalities that are borne by segregated communities in which compromised wealth is a common attribute. For communities that are already vulnerable to mortgage discrimination, the lack of a bankruptcy modification option compounds the unique risks of cyclical and historical economic disenfranchisement related to homeownership.

This Article contends that by permitting debtors to modify primary residential mortgages, consumer bankruptcy law can address persistent and intractable mortgage discrimination in historically disenfranchised communities and support wealth-building and retention in the process. Reframed in this way as a tool of economic remediation and improvement, and not just a form of temporary relief for temporary financial misfortune and crisis, bankruptcy law can address the broader structural forces that produce chronic, racialized, economic subordination, particularly related to homeownership. Accordingly, this Article reconceives consumer bankruptcy as providing not only a “fresh start,? but also an appropriate remedy for financially distressed borrowers whose economic hardships are directly related to illegal and discriminatory mortgage lending practices that lead to or exacerbate financial distress.

"Ethical Culture and Legal Liability: The GM Switch Crisis and Lessons in Governance" Free Download

MARIANNE M. JENNINGS, Arizona State University
LAWRENCE J. TRAUTMAN, American University, George Washington University, Oklahoma City University - School of Law

During 2014 news stories emerged that eventually revealed and caused General Motors (GM) to admit that the corporation took more than ten years to recall millions of vehicles because of an elaborate cover-up related to defects in its engine ignition switches. Beyond the tragedy of at least 100 deaths attributed to the ignition switch failures, there is the company’s internal failure to address and timely disclose what was a material event evident in the earliest stages of the use of the switch and clear evidence of the company’s awareness of the defects. Within the past fifteen years there have been significant examples of ethical lapses, all with the common factor that the evolution of the lapses within the companies took place over a period of time with many in the organization aware of the growing problems. The ignition switch problem at GM follows the same pattern. The purpose of this article is to examine the GM ignition switch debacle in light of its culture and past practices and search for insights to aid other companies in how to detect these material events and decisions in their early stages. First, we discuss what went wrong at GM, including findings from the report conducted by attorney Anton Valukas at the request of GM’s board. Second, we explore GM’s several appearances before Congress due to this ignition switch safety issue. Third, we look at what GM is reported to have done so far. Fourth, we provide thoughts about what GM needs to do. Next, we discuss lessons learned from this ethical crisis. Finally, we conclude and offer advice. We believe this paper offers a recital of the facts surrounding an egregious lapse in U.S. corporate ethical conduct as it provides constructive thoughts about future prevention of the causal management conduct, failure of corporate governance and regulatory oversight. The GM experience offers many lessons about the importance of organizational integrity, “truth telling? at all levels within large corporations, and the costs and issues that result when there are failures in corporate governance.

"Outing Privacy" Free Download
Northwestern University Law Review, Vol. 110, No. 1, 2015

SCOTT SKINNER-THOMPSON, New York University School of Law

The government regularly outs information concerning people’s sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy — a right to limit the government’s ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary’s reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy’s ability to promote individual dignity and autonomy, there is a disconnect when courts attempt to translate those theories into workable doctrine. The extant theories are products of Fourth Amendment and decisional privacy law, and bear a more attenuated relationship to informational privacy problems, hindering recognition of the right.

This Article reorients and hones the focus of the purported informational privacy right toward what the Due Process Clause suggests as the right’s two principal and more concrete values: preventing intimate information from serving as the basis for potential discrimination and creating space for the formation of political thought. By so doing, not only is a more precise theory of informational privacy constructed, but instrumentally (and perhaps most importantly), courts will be more apt to recognize a constitutional informational privacy right thereby better insulating individuals from discrimination or marginalization.

"Trouble Spots in Online Direct-to-Consumer Prescription Drug Promotion: A Content Analysis of FDA Warning Letters" Free Download
Int J Health Policy Manag. 2015; 4(12):813–821. doi:10.15171/ijhpm.2015.157

HYOSUN KIM, University of North Carolina (UNC) at Chapel Hill - School of Journalism and Mass Communications

For the purpose of understanding the Food and Drug Administration’s (FDA’s) concerns regarding online promotion of prescription drugs advertised directly to consumers, this study examines notices of violations (NOVs) and warning letters issued by the FDA to pharmaceutical manufacturers.

The FDA’s warning letters and NOVs, which were issued to pharmaceutical companies over a 10-year period (2005 to 2014) regarding online promotional activities, were content-analyzed.

Six violation categories were identified: risk information, efficacy information, indication information, product labeling, material information issues, and approval issues. The results reveal that approximately 95% of the alleged violations were found on branded drug websites, in online paid advertisements, and in online videos. Of the total 179 violations, the majority of the alleged violations were concerned with the lack of risk information and/or misrepresentation of efficacy information, suggesting that achieving a fair balance of benefit versus risk information is a major problem with regard to the direct-to-consumer advertising (DTCA) of prescription drugs. In addition, the character space limitations of online platforms, eg, sponsored links on search engines, pose challenges for pharmaceutical marketers with regard to adequately communicating important drug information, such as indication information, risk information, and product labeling.

Presenting drug information in a fair and balanced manner remains a major problem. Industry guidance should consider addressing visibility and accessibility of information in the web environment to help pharmaceutical marketers meet the requirements for direct-to-consumer promotion and to protect consumers from misleading drug information. Promotion via social media warrants further attention, as pharmaceutical manufacturers have already begun actively establishing a social media presence, and the FDA has thus begun to keep tabs on social media promotions of prescription drugs.


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


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Advisory Board

Consumer Law eJournal

Associate Dean, Director - Consumer Law Center, Dwight Olds Chair in Law, University of Houston Law Center

Roger Henderson Professor of Law, University of Arizona - James E. Rogers College of Law (deceased)

Professor of Law, Georgia State University College of Law

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

Professor of Law, Oklahoma City University - School of Law

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

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

Professor of Law, University of Kent, Canterbury - Kent Law School

Professor of Law, Catholic University of America - Columbus School of Law

Associate Dean for Intellectual Life and Professor of Law, Hofstra University School of Law