Analysis and Commentary on Consumer Law

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BU Law emerita professor Tamar Frankel comments on the renewed importance of the repealed Glass-Steagall Act which Congress passed after the failure of the financial system in the 1920s.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.

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.

Cash or Card

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

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.

Personalized Pricing in the Air? Why Consumers Should Be Wary of a New Airline Pricing Proposal

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.

Good2Go? Good and Gone? Why an Affirmative Consent App Is a Risky Proposition

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

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?

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

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.

The Spokeo Lawsuit and the Perils of the New People Finder Companies

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.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... 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

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

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School... more

Lesley Wexler
Lesley Wexler

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