Rory Van Loo, ‘Broadening Consumer Law: Competition, Protection, and Distribution’

Policymakers and scholars have in distributional conversations traditionally ignored consumer laws, defined as the set of consumer protection, antitrust, and entry-barrier laws that govern consumer transactions. Consumer law is overlooked partly because tax law is cast as the most efficient way to redistribute. Another obstacle is that consumer law research speaks to microeconomic and siloed contexts – deceptive fees by Wells Fargo or a proposed merger between Comcast and Time Warner Cable. Even removing millions of dollars of deceptive credit card fees across the nation seems trivial compared to the trillion-dollar growth in income inequality that has sparked concern in recent decades. This Article synthesizes the fragmented empirical literature to offer a broader conception of consumer law’s place in governance. The data indicate that consumer market failures raise prices to consumers by well over a trillion dollars annually, aided by sophisticated algorithmic pricing; that this overcharge worsens economic inequality; and that consumer law, despite prominent critiques of its shortcomings, can reduce overcharge when designed well. The preliminary state of the evidence underscores the need for regulatory monitoring of markets to calibrate consumer law’s potential as a tax alternative. Redistribution is one of the government’s most basic functions, and efficiency one of the law’s guiding principles. There are strong normative foundations for making macroeconomic distribution an explicit goal of consumer law.

Rory Van Loo, Broadening Consumer Law: Competition, Protection, and Distribution, 95 Notre Dame Law Review 211 (2019).

‘Ireland: Man wins “fleeting defamation” case and is awarded €500, should the law of defamation really concern itself with such a trifle?’

“The latin maxim ‘de minimis non curat lex’ is usually translated as ‘the law does not concern itself with trifles’, meaning the courts will not consider trifling matters. Christmas may be the time for trifles (like the Christmas trifle pictured right), but the Courts are not the place for them. I was reminded of the maxim today when I read the headline that a ‘Man wins “fleeting defamation” case against Luas and is awarded €500’. The judge is reported (here and here) to have found that …” (more)

[Eoin O’Dell, Inforrm’s Blog, 15 December]

Chung and Chiu, ‘Right? Wrong? Outdated?: An evaluation of the controversial Hunter v Moss

Hunter v Moss is a landmark, but also controversial, English trusts law case. In this article, we argue that Hunter v Moss is, indeed, not as controversial or problematic as the academic critics have portrayed it to be, by explaining why those criticisms do not stand. We then argue that the biggest problem with this judgment is its inability to accommodate cases with a financial context, and we propose that the common law courts should rather adopt a facts-based approach.

Benny Chung and Jason Chun Wing Chiu, Right? Wrong? Outdated?: An evaluation of the controversial Hunter v Moss, Trusts and Trustees, Published: 10 December 2019.

‘Daniel Takash on Intellectual Property Policy’

“In this episode, Daniel Takash, Regulatory Policy Fellow at the Niskanen Center, discusses his white paper ‘Why “Intellectual Property” is a Misnomer’, which he co-authored with Brink Lindsay, Vice-President of the Niskanen Center. Takash begins by describing the different theoretical justifications for property rights and how the apply to intellectual property. He argues that intellectual property is not really property at all, but a form of government subsidy, and that this observation should inform intellectual property policy. He also reflects on how libertarians should view intellectual property rights …” (podcast)

[Ipse Dixit, season 1, episode 442, 14 December]

Arbel and Shapira, ‘Theory of the Nudnik: The Future of Consumer Activism and What We Can Do to Stop it’

How do consumers hold sellers accountable and enforce market norms? This Article contributes to our understanding of consumer markets in three ways. First, The Article identifies the role of a small subset of consumers – the titular ‘nudniks’ – as engines of market discipline. Nudniks are those who call to complain, speak with managers, post online reviews, and file lawsuits. Typified by an idiosyncratic utility function and personality traits, nudniks pursue action where most consumers remain passive. Although derided in courtrooms and the court of public opinion, we show that nudniks can solve consumer collective action problems, thereby leading to broad market improvements.

Second, the Article spotlights a disconcerting development: Sellers’ growing usage of Big Data and predictive analytics allows them to identify specific consumers as potential nudniks and avoid selling to or disarm them before they can draw attention to sellers’ misconduct. The Article therefore captures an understudied problem with Big Data tools: sellers can use these tools to shield themselves from market accountability.

Finally, the Article evaluates a menu of legal strategies that would preserve the benefits of nudnik-based activism in light of these technological developments. In the process, we revisit the conventional wisdom on the desirability of form contracts, mandatory arbitration clauses, defamation law, and standing doctrines.

Arbel, Yonathan A and Shapira, Roy, Theory of the Nudnik: The Future of Consumer Activism and What We Can Do to Stop it (December 9, 2019). Vanderbilt Law Review, Forthcoming; U of Alabama Legal Studies Research Paper No 3501175.

Montagnani and Trapova, ‘Copyright and Human Rights in the Ballroom: A Minuet between the US and the EU’

Similar to the graceful forward, backward and sideways movements in a minuet, after a slow start, the dynamics between IP and human rights have intensified to the extent that human rights law is seen as IP’s new frontier. When balancing various interests at stake in both the US and the EU, copyright law engages internal as well as external mechanisms. Interestingly enough, the application of these tools has taken place not only as part of the legislative powers of the two jurisdictions, but more prominently within the judiciary. In this respect, the jurisprudence of the US and the EU have often harmoniously intertwined in an elegant move towards one another, which has then been followed by a gradual swirl away into own interpretations. The overall purpose of this work is to analyze the extent to which the approach in the EU differs to the one in the US. To do so the paper first looks at the essence of the internal and external safeguards as such (§ II). We then turn our focus to the leading case law in the US by reference to the Supreme Court and some of the most prominent US Courts of Appeals judgments and compare it to the CJEU’s practice. In this respect we seek to verify whether and to what extent the decision-making process in the two jurisdictions has converged or diverged over the years (§ III). In the final part (§ IV) we conclude the discourse and suggest that at the moment it seems like the two systems are now dancing sideways hand-in-hand in the same direction.

Montagnani, Maria Lillà and Trapova, Alina, Copyright and Human Rights in the Ballroom: A Minuet between the US and the EU (December 3, 2019). Bocconi Legal Studies Research Paper.

Reinhard Zimmermann, ‘The Compulsory Portion in German Law’

The compulsory portion of the German law of succession is a personal claim by a close family member of the deceased against the latter’s heir, or heirs, to receive the value of one half of his or her intestate share. The range of persons entitled to a compulsory portion is limited to the deceased’s descendants, his parents, and his surviving spouse. The right to a compulsory portion can be lost as a result of having been deprived of it by the deceased (which is possible in a limited number of situations), as a result of being unworthy to receive a benefit from the deceased’s estate, or as a result of having waived the right. All in all, the system enacted in the BGB has proved to be comparatively stable; even the amendments brought about in 2010 as a result of the Act on the Reform of the Law of Succession and Prescription were rather modest and have shifted the balance between freedom of testation and family solidarity only very slightly in the direction of freedom of testation. That can be taken as confirmation that, essentially, the rules of the BGB provide a solution that is both pragmatic and reasonable. The Federal Constitutional Court has even, in 2005, ruled that a certain minimum participation for children in a deceased’s estate not only does not contravene the constitutional guarantee of ‘property and the right of inheritance’ in Art 14 (1) GG, but is itself protected by that provision.

Zimmermann, Reinhard, The Compulsory Portion in German Law. Max Planck Private Law Research Paper No 19/19.

Daniel Cook, ‘Walking the Divide: A Critical Examination of the Nature of Undue Influence and Unconscionable Dealing’

This article affords a contextual, exploitation-based account of the doctrines of undue influence and unconscionable dealing in the law of contract. In contrast with the vast majority of literature on undue influence and unconscionable dealing, this article argues that substantive unfairness is neither a necessary nor sufficient condition for establishing either doctrine. Rather, it is the stronger party’s exploitation of the weaker party’s position which is of importance when granting relief in equity. Notwithstanding the centrality of exploitation when making a finding of undue influence or unconscionable dealing, the law presently demarcates between the doctrines by reference to the contexts in which they operate. The conclusion is therefore that although conceptual coherence between both doctrines is welcome, any attempt at assimilation ought to be sensitive to the contexts which undue influence and unconscionable dealing currently regulate.

Cook, Daniel, Walking the Divide: A Critical Examination of the Nature of Undue Influence and Unconscionable Dealing (June 14, 2019).

Gregory Crespi, ‘Multiple Contracts or One Contract? The “Reverse Divisibility” and “Subsequent Modification” Arguments for Expanding the Scope of Justified Non-Performance After Breach’

The basic principles of divisibility that define the circumstances under which a single contractual agreement can be recharacterized as multiple separate agreements are well established and are standard fare in basic contract law courses and texts. However, little if any attention is paid in law school or in legal practice to the possibility of a person arguing for what one might call ‘reverse divisibility’, or ‘subsequent modification’, the recharacterization of a set of closely related (although facially separate) contracts among two or more parties as being a single contract. While people will often invoke divisibility arguments in an attempt to limit the justified non-performance consequences of a breach of contract on their part, a person may also seek to have a set of facially separate but closely related contracts recharacterized as a single contract in order to expand the scope of their own justified non-performance rights after a breach by the other party to the contract. This short article will discuss this possibility.

Crespi, Gregory S, Multiple Contracts or One Contract? The ‘Reverse Divisibility’ and ‘Subsequent Modification’ Arguments for Expanding the Scope of Justified Non-Performance After Breach (November 26, 2019).

‘Civil justice and the new government’

“By any measure the outcome of yesterday’s election was a significant point in the UK’s politics. The returning of the Conservative government with a chunky majority means, first and foremost, that the UK will leave the EU in a little over six weeks, on 31 January 2020. In advance of a new Queen’s Speech, likely to be next week, are there already indications of what policies to expect from the new administration in the area of civil justice? …” (more)

[Alistair Kinley, BLM Policy blog, 13 December]