Lashed to the Mast and Crying for Help

83 Pages Posted: 19 Jun 2007

See all articles by Kurt Eggert

Kurt Eggert

Chapman University, The Dale E. Fowler School of Law

Abstract

This article is an attempt to solve one of the central conundrums of consumer protection and the protection of elders: how to provide protection to those consumers and elderly who need it without unduly restricting the rights and freedom of those who do not need or want the limitations of autonomy that added protection might bring. The article starts by analyzing autonomy itself and how philosophers and others have defined and described autonomy. Autonomy does not consist of mere lack of restraints or in a multiplicity of options. Instead, a crucial element of autonomy is the ability to make considered decisions that conform to one's own preferences or beliefs and to put those decisions into action. Autonomy may even be enhanced, therefore, if people can choose restraints or limitations of options that allow them to make better, more considered decisions. For example, borrowers with fewer confusing options can make more informed decisions than those presented such an overwhelming welter of terms that they can no longer understand the loan they are obtaining.

The article analyzes self exclusion programs in casinos. These programs allow a problem gambler to request a casino to exclude the gambler, in essence limiting the gambler's autonomy by banning gambling for that person in that casino. The article concludes that such programs increase the autonomy of the self-excluding gamblers, so long as they allow the potential self-excluders a reflective, considered method by which to be removed from the list of excluded gamblers.

To put this theory into practice, the article develops the Elder Home Equity Loan Protection (Elder HELP) Instruments, which are voluntary instruments that an elder borrower can sign and record at the county recorder's office. Such an instrument would notify lenders that the borrower does not wish to enter into any loan with certain barred terms that often are inserted in predatory loans, such as prepayment penalties, balloon payment requirements, or fees or interest rates above certain targets. By recording the instrument with the county recorder, the senior would be providing notice to all lenders that the senior did not consent to any loan with these objectionable terms. Then, if a senior were still somehow induced into entering into any loan with such terms, the law would provide that the senior could sue to reform the note to eliminate the offending terms.

By choosing whether to sign and record an Elder HELP Instrument, the senior would be retaining autonomous control over his financial destiny. At the same time, the senior could be choosing greater protections from fraud and sharp dealing, and so this proposal combines protection for the senior's assets and autonomy at the same time.

Keywords: gambling, consumer protection, harm minimization, gaming, negotiable instruments, holder in due course, mortgages, legal history, bills of exchange, elders, elder law, predatory lending

JEL Classification: D11, D18,

Suggested Citation

Eggert, Kurt, Lashed to the Mast and Crying for Help. Loyola of Los Angeles Law Review, Vol. 36, p. 693, Winter 2003 , Available at SSRN: https://ssrn.com/abstract=905062

Kurt Eggert (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

HOME PAGE: http://www.chapman.edu/law/faculty/eggert.asp

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