Articles Posted in Consumer Law

Could the Conservative Attack on the Administrative State be Good for Net Neutrality—and for Progressive Regulation More Generally?
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Cornell law professor Michael C. Dorf anticipates the possible next steps in the federal government’s lawsuit against California over the state’s new law mandating net neutrality. Dorf explains why, if conservative scholars and Supreme Court justices succeed in what seems to be their goal of weakening federal regulatory agencies, that could ironically be a boon to net neutrality and to government regulation more broadly.

FDA Plan to Censor “Milk” in Plant-Based Food Names May Violate the First Amendment
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Cornell law professor Michael C. Dorf explains why the FDA’s recent announcement that it intends to restrict the word “milk” on food labels may present First Amendment issues. Dorf points to the US Supreme Court’s decision last year in Matal v. Tam—which rejected the Patent and Trademark Office’s denial of a trademark to a band on the ground that the name was offensive—as evidence of the Court’s skepticism about the government making ideological judgments in the grant or denial of rights to exclusive use of a word.

Cash or Card
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Guest columnists Antonio G. Sepulveda, Henrique Rangel, and Igor De Lazari comment on a recent decision by the U.S. Supreme Court that a New York law prohibiting merchants from imposing a surcharge for payment by credit card constitutes a regulation of speech, and they compare the Court’s treatment of the law as regulating speech with Brazil’s historic treatment of similar laws in that country as protecting consumers.

Is Greyball Really Blackball? Uber Has a Private Tool That Blocks Government Officials and Other Riders
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University of Washington law professor Anita Ramasastry discusses “Greyball,” a private tool Uber reportedly used to identify government inspectors and prevent them from hailing a ride. Ramasastry explains the dangers inherent in allowing minimally regulated private companies such as Uber to have such great power over integral services like transportation, and she calls for greater scrutiny into businesses with such significant market power.

A Preview of DIRECTV v. Imburgia: An Upcoming Case Before the Supreme Court Concerning Arbitration of Consumer Disputes
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University of Illinois law professor and dean Vikram David Amar discusses an upcoming Supreme Court case in which the Court will consider to what extent consumer contracts that require disputes to be resolved by binding arbitration, rather than through formal litigation, are enforceable.

Personalized Pricing in the Air? Why Consumers Should Be Wary of a New Airline Pricing Proposal
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University of Washington law professor Anita Ramasastry discusses a proposal tentatively approved by the U.S. Department of Transportation that would allow airlines to collect consumers’ personal data for the purpose of personalizing fare quotes. Ramasastry cautions that the proposal has significant privacy and discrimination risks and that we need more information, more transparency, and better safeguards before proceeding with it.

Riding with Strangers: Will the Shuddle Model Thrive and Should Parents Be Concerned?
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University of Washington law professor Anita Ramasastry discusses a new company called Shuddle, which bills itself as an Uber-like car service for transporting children from place to place. Ramasastry describes some of the security and privacy issues Shuddle raises and compares it to other companies offering similar services.

Good2Go? Good and Gone? Why an Affirmative Consent App Is a Risky Proposition
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University of Washington law professor Anita Ramasastry comments on a smartphone app known as Good2Go, which is intended to establish affirmative consent for the purpose of sexual encounters. Ramasastry describes some of the app’s shortcomings, including its lack of specificity with regard to what is consented to and its lax information privacy policy.

Stalking Us as We Shop: HP’s New Smartshopper App
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Hewlett Packard (HP) has unveiled a new mobile app that retailers can use to stalk people as they shop, to send them targeted ads and promotions. Called SmartShopper, it was unveiled at the Interop conference in Las Vegas at the end of March. It has the ability to send location-based smartphone offers to customers’ iPhones in real time. Promoted by Meg Whitman, CEO of HP, as a way for retailers to monetize their networks and build “tighter relationships with their customers,” this is not the first time that so-called stalker apps have been in the news as being intrusive of consumer privacy. Here, Justia columnist and U. Washington law professor Anita Ramasastry looks at two recent examples of so-called stalker-shopper apps, and legislative attempts to address these new ways of tracking our movements and behavior.

Should Mt. Gox Be Bailed Out? What Should Regulators Do in Light of a Major Bitcoin Heist?
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Justia columnist and U. Washington law professor Anita Ramasastry comments on recent headlines that caused a panic in the Bitcoin and cryptocurrency world: The largest Bitcoin exchange, Mt. Gox, was reporting a loss of nearly 750,000 Bitcoins currency units. (Prominent Bitcoin blogger Ryan Selkis made a post to his blog in which he described an unverified report of the loss.) This figure would be worth above $400 million at current prices. As of now, Mt. Gox, which is incorporated in Japan, has filed for insolvency protection there. Ramasastry comments on key events, and possible future reforms that could be put in place so that this situation does not recur.

Bitcoin: If You Can’t Ban It, Should You Regulate It? The Merits of Legalization
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Justia columnist and U.Washington law professor Anita Ramasastry comments on the question whether Bitcoin—a so-called virtual peer-to-peer currency—should be regulated by the U.S. and/or States within it. (Along with the Treasury Department, California and New York are also contemplating possible legal or regulatory measures regarding Bitcoin.) Ramasastry looks at recent attempts to extend legal recognition to Bitcoin, and explains why she believes this is a good thing. She adds that while it may be good to clarify that legitimate businesses and consumers may use Bitcoin, it may be too early now to determine what, if any, further measures are needed to provide consumers with needed safety with respect to their Bitcoins.

Michael Bromwich’s Apple Monitoring Continues: Chapter Two
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Justia columnist and former counsel to the President John Dean continues his series of columns regarding the monitoring of Apple that is connected to an antitrust action. Dean takes sharp issue regarding both how the monitoring is being done, and the costs that are being imposed on Apple as a result.

The Spokeo Lawsuit and the Perils of the New People Finder Companies
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Justia columnist and U. Washington law professor Anita Ramasastry comments on a possible regulatory issue regarding Spokeo, which bills itself as a people-finder service. Spokeo warns subscribers that they cannot use its information to make decisions about a person’s employment, to make a credit determination, or to put the information to uses that would be covered by a federal law known as the Fair Credit Reporting Act (FCRA). But as a recent lawsuit illustrates, Spokeo’s data may be being used for such purposes, regardless, raising the possibility of the need for better safeguards.

The Implications of Suing the NFL’s Super Bowl Ticketing Scheme
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Justia columnist and former counsel to the president John Dean comments on the story of Josh Finkelman, 28 years old, the president of a warehouse business, and a serious football fan, who went looking for Super Bowl XLVIII tickets and ended up taking on the entire National Football League’s (NFL) Super Bowl ticketing system. Dean predicts that Finkelman’s lawsuit, if it goes forward, could be a doozy, and explains the New Jersey law that may make a lawsuit possible.

OfficeMax’s Deceased Daughter Mail Blunder and the Limits of Privacy Law
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Justia columnist and U. Washington law professor Anita Ramasastry comments on a situation involving Mike Seay and his wife, who have been mourning the loss of their daughter, Ashley, for just under a year. Last week, the Seays received an unwelcome reminder of Ashley’s untimely passing in the mail: It came in the form of a flier from the office supply store OfficeMax, addressed to Ashley’s father, in these words: ”Mike Seay, Daughter Killed in Car Crash.” In addition to that egregious incident, Ramasastry also discusses the growing phenomenon of data aggregation, and the fact that the large-scale collection of data leads to harmful consequences for consumers when companies keep tabs on us in ways that are unrelated to our ordinary commercial transactions, as the Seays painfully learned.

Why Holiday Headaches From the Target Debit-Card Breach May Not Amount to Viable Legal Claims
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Justia columnist and U. Washington law professor Anita Ramasastry explains how even a massive data breach like the one Target recently experienced may not lead to a winnable lawsuit, although it has sullied the company's reputation. FTC action may possibly ensue, but class actions may not work in this context, for reasons that Ramasastry explains.

Who Is Looking at Your Kids’ School Data? Why Congress Needs to Take Note
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Justia columnist and U. Washington law professor Anita Ramasastry comments on school districts' sharing student data with private companies that manage various functions for the districts. How did this happen? Because, Ramasastry notes, in recent years, Congress has made changes to the Family Education Rights and Privacy Act (FERPA) that have created a potentially broad loophole regarding who has access to student data.

I Don’t Want Michael Bromwich Messing With My Next iPhone
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Justia columnist and former counsel to the president John Dean comments on the antitrust case against Apple, charging the company with conspiring to price fix e-books. Dean questions the judgment of the Southern District of New York judge, Denise Cote who was overseeing the case before it went to the U.S. Court of Appeals for the Second Circuit. In particular, Dean questions the decisions of Apple's court-ordered external monitor, Michael Bromwich, for reasons that Dean details.

Meet our Columnists
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor of Law and Former Dean at the University of Illinois College of Law on the Urbana-Champaign campus.... more

Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of Toronto Law school. He is the James J. Freeland Eminent Scholar Chair in Taxation Emeritus at the... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional... more

Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and Employment Law and Institute of Judicial Administration at New York University School of Law. He... more

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas Boyd School of Law. Prof. Griffin, who teaches constitutional law and bioethics, is known for... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law and is currently serving as the Herman Phleger Visiting Professor at Stanford Law School. ... more

Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of Pennsylvania. She is also the founder and CEO of CHILD USA, a 501(c)(3) nonprofit academic think... more

Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar... more

Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.Professor Sarat founded both Amherst College’s Department of Law,... more

Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and Professor of Constitutional Law Emeritus at Harvard Law School, where he has taught since 1968. Born in... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University,... more