Analysis and Commentary on Consumer Law
Shrinkflation, Inflation, and Climate Change

Cornell Law professor Michael C. Dorf discusses President Joe Biden’s commentary on “shrinkflation” during his State of the Union address, particularly Biden’s call to pass legislation to combat this deceptive practice where companies reduce the product size while maintaining the price. Professor Dorf explains why he agrees with the need to address shrinkflation but critiques Biden’s focus on junk food examples, arguing that consuming fewer unhealthy products might not harm consumers. Additionally, Professor Dorf highlights a broader issue of consumerist populism and the inconsistency in addressing economic policies and environmental challenges.

NCAA v Alston: A Brave New World for College Sports

NYU law professor Samuel Estreicher and adjunct professor Zachary Fasman comment on the U.S. Supreme Court’s decision earlier this week in NCAA v. Alston, in which the Court held that the NCAA’s attempt to limit compensation to student athletes to preserve their amateur status is subject to the normal rule of reason analysis applied in antitrust cases. Professors Estreicher and Fasman note that the effect of conflicting and competing state name, image and likeness (NIL) regulation on the consumer market—the market at the core of the Court’s analysis in Alston—remains to be seen.

Which Laws Apply to Broker-Dealers? Federal Laws? State Laws? Both? General Principles Leading to an Answer

BU Law emerita professor Tamar Frankel explains the law of preemption as it pertains to broker-dealers and their investor clients. She predicts, among other things, that either the clients will demand that broker-dealers adhere to a fiduciary duty, or else that states will impose that duty on them.

The Clients’ Waiver of Their Rights Under Regulation BI of the Securities and Exchange Commission

BU Law emerita professor Tamar Frankel discusses the Securities and Exchange Commission (SEC)’s Regulation Best Interest (BI), which imposes on broker-dealers a commitment to act in the best interests of their clients. Specifically, Frankel addresses the SEC’s treatment of client waivers of the Regulation BI, which goes even further than general fiduciary law to prohibit any waiver of the broker-dealer’s conflicting interests.

The Investors’ Control of Their Investment Advisers. Who Has the Final Word?

BU Law emerita professor Tamar Frankel discusses an emerging issue affecting financial advisers—when a client may exercise control over the actions of the adviser. Frankel relates the story of an investment adviser that did not follow the client’s orders to cease certain investments, at a cost of almost $5 million to the client. As Frankel explains, the Securities and Exchange Commission (SEC) got involved, resulting in the investment adviser’s settlement for a significant payment to the client and other conditions.

Charles Schwab in Praise of Fiduciary Independent Advisers

BU Law emerita professor Tamar Frankel describes two advertisements by Charles Schwab ostensibly praising independent investment advisers, who are fiduciaries. Frankel explains why this development may lead to a separation of advice from execution of trade in a way that offers greater protections to investors.

Explaining Why Dairy Won’t Share the Word “Milk”

Cornell law professor Sherry F. Colb comments on a battle over what products may carry the label “milk.” Colb proposes that the dairy industry opposes plant-based milks (such as soy milk or almond milk) from identifying their products using the word “milk” not because of any real risk of confusing consumers or market harm, but as a show of dominance in response to exposed vulnerability.

Protecting Sophisticated Investors From Sophisticated Con Artists

BU Law emerita professor Tamar Frankel offers some suggestions to investors about how to avoid being scammed by sophisticated con artists. Frankel points out that even sophisticated investors sometimes fall victim to complex and enticing schemes and dissects a few examples of advertisements for such schemes to illustrate her points.

Is Amazon Violating the Antitrust Laws?

Guest columnist and UC Hastings adjunct professor Samuel R. Miller considers whether Amazon is violating antitrust laws if it is (as is alleged) misusing data it obtains from third-party transactions. Miller explains two potential theories of antitrust liability—the “essential facilities” doctrine and the “monopoly leveraging” theory—and discusses the extent to which Amazon might be liable under each theory.

The Future of the United States Monetary System

BU Law emerita professor Tamar Frankel discusses the dangers of allowing non-government entities—such as Facebook and its affiliates—to issue a “basket” of crypto-currency. Frankel explains the importance of government regulation of currency and cautions that we should seek a clearer understanding of any technology or currency that can potentially destabilize the nation’s economy.

Is Tyson Foods “Less Meat” (But Not “Meatless”) Good for the Animals?

Cornell law professor Sherry F. Colb comments on Tyson Foods’ recent entrance into the meat reduction market, selling so-called blended products that contain both meat and plants. Colb discusses some of the possible harms and benefits of Tyson’s decision from the perspective of an ethical vegan consumer.

The Hidden Trading Costs of Diversification, the Demise of Brokers Fiduciary Duties, and the Legalization of Brokers’ Fraud

BU Law emerita professor Tamar Frankel explains how seemingly small hidden transaction fees can add up to a significant cost to the investor, particularly in long-term investments. Frankel explains that strictly literal interpretations of the regulations of broker-dealers lead to this unfair and costly result for investors and argues that society should focus on reinforcing brokers’ fiduciary duties of care (expertise) and loyalty (avoiding conflicts of interest).

The Other Side of “Order Without Law”

BU Law emerita professor Tamar Frankel argues that while private ordering—that is, rules of behavior without the backup of law—works well in some situations, such as among diamond traders and farmers, it cannot work in other situations, including the financial system. Frankel provides a brief review of the literature on private ordering and explains why the financial system cannot work under this model, and indeed why applying it would cause dangerous trends and damaging consequences.

Wells Fargo Bank and the Glass-Steagall Act

BU Law emerita professor Tamar Frankel comments on the renewed importance of the repealed Glass-Steagall Act which Congress passed after the failure of the financial system in the 1920s. Frankel argues that the alarming path of Wells Fargo Bank supports imposing regulations on banks similar to those levied by the Glass-Steagall Act.

Meat and Marriage: The Menace of Changing Definitions

Cornell law professor Sherry F. Colb considers the significance in policing “original” meanings of words, such as “meat” and “marriage.” She point out that in both contexts, arguments over the meaning of the word are rooted in strong feelings about status and do not truly reflect a concern with a risk of confusion.

States’ Regulation of Broker Dealers

BU Law emerita professor Tamar Frankel explains why state regulatory bodies should impose fiduciary duties on broker-dealers, whose services involve both “sales talk” and the managing of securities of investors who often lack knowledge or expertise of the transactions. Frankel reiterates points she made during testimony before the New Jersey Bureau of Securities and makes the case for the long-overdue regulation of broker-dealers as fiduciaries.

Could the Conservative Attack on the Administrative State be Good for Net Neutrality—and for Progressive Regulation More Generally?

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

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.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more