Table of Contents

Secret Consumer Scores and Segmentations: Separating Consumer 'Haves' from 'Have-Nots'

Amy Schmitz, University of Colorado Law School

Calibrating Participation: Reflections on Procedure versus Procedural Justice

Elizabeth Chamblee Burch, University of Georgia Law School

Canadian Mortgage Law and Prepayment Penalties

Peter S. Spiro, University of Toronto - Mowat Centre for Policy Innovation, School of Public Policy and Governance

The Problems and Perils of Bootstrapping Privacy and Data into an Antitrust Framework

Geoffrey A. Manne, International Center for Law & Economics (ICLE)
Ben Sperry, International Center for Law & Economics (ICLE)

Limitations of the Market-Based Approach to the Regulation of Farm Animal Welfare

Aaron C Timoshanko, Monash University - Faculty of Law, Flinders University - School of Law


CONSUMER LAW eJOURNAL

"Secret Consumer Scores and Segmentations: Separating Consumer 'Haves' from 'Have-Nots'" Free Download
Michigan State Law Review, p. 1411, 2014
U of Colorado Law Legal Studies Research Paper No. 15-6

AMY SCHMITZ, University of Colorado Law School
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“Big Data� is big business. Data brokers profit by tracking consumers’ information and behavior both on- and offline and using this collected data to assign consumers evaluative scores and classify consumers into segments. Companies then use these consumer scores and segmentations for marketing and to determine what deals, offers, and remedies they provide to different individuals. These valuations and classifications are based on not only consumers’ financial histories and relevant interests, but also their race, gender, ZIP Code, social status, education, familial ties, and a wide range of additional data. Nonetheless, consumers are largely unaware of these scores and segmentations, and generally have no way to challenge their veracity because they usually fall outside the purview of the Fair Credit Reporting Act (FCRA). Moreover, companies’ use of these data devices may foster discrimination and augment preexisting power imbalances among consumers by funneling the best deals and remedies to the wealthiest and most sophisticated consumers. Use of these scores and segmentations increases the growing gap between powerful “haves� and vulnerable “have-nots.� This Article sheds light on these data devices and aims to spark adoption of data privacy regulations that protect all consumers regardless of their educational, economic, ethnic, or social status.

"Calibrating Participation: Reflections on Procedure versus Procedural Justice" Free Download
DePaul Law Review, Forthcoming

ELIZABETH CHAMBLEE BURCH, University of Georgia Law School
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When the same defendant harms many people in similar ways, a plaintiff’s ability to meaningfully participate in litigating her rights is curtailed dramatically. Now it is the rare plaintiff who sues a nationwide (or worldwide) corporation in her home jurisdiction and is able to litigate and resolve her claims there. Although several factors play a role in this phenomenon, including tort reform efforts like the Class Action Fairness Act, one of the most significant factors is Supreme Court jurisprudence over the last ten years in the areas of arbitration, personal jurisdiction, pleading, and class actions. Of course, recent cases aren’t the first evidence of a shift away from procedural justice norms. Commentators have long lamented the “vanishing trial� and the rise of summary judgment, often citing those trends as evidence of “merit-phobia,� “death by a thousand procedural cuts,� and a general demolition of both democratic tradition and the civil justice system’s credibility.

At the heart of these concerns lies a persistent theme: the need for citizen access to and participation in convenient dispute resolution. Other scholars writing about arbitration, closing the courthouse doors, and the democratizing function of trials have already tackled many facets of this theme. Accordingly, this Essay, written for the annual Clifford Symposium in Tort Law and Social Policy, hones in on a slightly different aspect: securing and curtailing participation rights through both aggregating and pleading. It builds a framework for considering participation rights in aggregate litigation based on underlying substantive rights, group dynamics, and empirical studies on procedural justice.

"Canadian Mortgage Law and Prepayment Penalties" Free Download
Western Journal of Legal Studies, Vol. 5, No. 4, 2015

PETER S. SPIRO, University of Toronto - Mowat Centre for Policy Innovation, School of Public Policy and Governance
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This article illustrates the imbalance of power between the mortgagor and mortgagee, which is particularly apparent for individual mortgagors. Prepayment and due on sale provisions are standard mortgage terms that contribute to this imbalance. Although these clauses purport to operate separately, in reality, both are frequently triggered by the sale of a property; the law of contract suggests that these provisions should not be enforceable. Relevant legislation is lacking in this area and should be reformed to provide more effective consumer protection while acknowledging that banks operate with the goal of maximizing profits. A reasonable compromise would involve basing the transferability of mortgages on objective criteria such as the size of the down payment provided by the buyer, rather than leaving it purely to the discretion of the lender.

"The Problems and Perils of Bootstrapping Privacy and Data into an Antitrust Framework" Free Download
CPI Antitrust Chronicle, May 2015

GEOFFREY A. MANNE, International Center for Law & Economics (ICLE)
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BEN SPERRY, International Center for Law & Economics (ICLE)
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Increasingly, people use the internet to connect with one another, access information, and purchase products and services. Along with the growth in the online marketplace have come concerns, as well, particularly regarding both the privacy of personal information as well as competition issues surrounding this and other data.

While concerns about privacy and data are not unique to the internet ecosystem, they are in some ways heightened due to the ubiquitous nature of information sharing online. While much of the sharing is voluntary, a group of scholars and activists have argued that several powerful online companies have overstepped their bounds in gathering and using data from internet users. These privacy advocates have pushed the U.S. Federal Trade Commission (“FTC�) and regulators in Europe to incorporate privacy concerns into antitrust analysis.

Here, we focus on the two most-developed theories of data-related antitrust harm: first, that privacy should be considered in mergers and other antitrust contexts as a non-price factor of competition; and second, that the collection and use of data can be used to facilitate anticompetitive price discrimination. In addition, we analyze the underlying conception of data as a barrier to entry that is a necessary precondition for supporting either proposed theory of harm. We argue that there are no plausible harms to competition arising from either non-price effects or price discrimination due to data collection online and that there is no data barrier to entry preventing effective competition.

"Limitations of the Market-Based Approach to the Regulation of Farm Animal Welfare" Free Download
University of New South Wales Law Journal, Vol. 38, No. 2, 2015

AARON C TIMOSHANKO, Monash University - Faculty of Law, Flinders University - School of Law
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This article suggests that Australian consumers who are concerned about the care and treatment of farm animals are not able to reflect these values through their purchasing behaviour due to market, political and social considerations. Collectively these considerations disrupt or interfere with the transmission of animal welfare values into purchasing behaviour. For this reason, the regulation of farm animal welfare cannot be left to the market-based approach. Instead, government regulatory intervention is required in accordance with public interest theories of regulation.

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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

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