The Yale Law Journal

Consumer Law

Article

The Obsolescence of Advertising in the Information Age

Ramsi A. Woodcock

Online search renders most advertising obsolete for conveying product information. Today, the only purpose of most advertising is to persuade consumers to purchase products. Because the information function of advertising is now obsolete, this Article argues that the Federal Trade Commission should …

Comment

The Tarnished Golden Rule: The Corrosive Effect of Federal Prevailing-Party Standards on State Reciprocal-Fee Statutes

Nathan Nash, Solange Hilfinger-Pardo & James Mandilk

Drawing on the authors’ clinical experience, this Comment describes an asymmetry in how courts award attorney’s fees that makes it more difficult for consumer-defendants to recover the costs of litigation. The Comment articulates a standard of “prevailing party” that would ensure equitable and effic…

Comment

Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana

Sophia House

The spread of synthetic marijuana is a public health crisis. Municipalities struggle with how to regulate drugs that can change as quickly as officials can design enforcement regimes. This Comment proposes leveraging creative administrative design and existing consumer protection torts to stem the t…

Note

Amazon’s Antitrust Paradox

Lina M. Khan

Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware ma…

Note

Playing Nicely: How Judges Can Improve Dodd-Frank and Foster Interagency Collaboration

Joshua C. Macey

Devised in the aftermath of the most severe financial crisis since the Great Depression, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) was enacted to reduce risk, increase transparency, and promote market integrity. Since Dodd-Frank was sig…

Article

Probate Lending

David Horton & Andrea Cann Chandrasekher

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibitio…

Article

The First Patent Litigation Explosion

Christopher Beauchamp

The twenty-first century “patent litigation explosion” is not unprecedented. In fact, the nineteenth century saw an even bigger surge of patent cases. During that era, the most prolific patent enforcers brought hundreds or even thousands of suits, dwarfing the efforts of toda…

Note

Lawmaking in the Shadow of the Bargain: Contract Procedure as a Second-Best Alternative to Mandatory Arbitration

Charles W. Tyler


122 Yale L.J. 1560 (2013).

In consumer and employment arbitration, companies have more freedom to choose dispute resolution procedures than they do in courts. Specifically, companies may, through their form contracts, require their customers and employees to waive their rights to present certain form…

Essay

The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other

Joshua D. Wright


121 Yale L.J. 2216 (2012).

The potential complementarities between antitrust and consumer protection law—collectively, “consumer law”—are well known. The rise of the newly established Consumer Financial Protection Bureau (CFPB) portends a deep rift in the intellectual infrastructure of consumer law …

Forum

Bad News for John Marshall

Gary Lawson & David B. Kopel

In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Mar…

Note

The Impact of Teacher Collective Bargaining Laws on Student Achievement: Evidence from a New Mexico Natural Experiment

Benjamin A. Lindy

120 Yale L.J. 1130 (2011). 

This Note uses the 1999 sunset and 2003 reauthorization of New Mexico’s public employee collective bargaining law to estimate the causal effect of teacher collective bargaining on student achievement. This Note finds that mandatory teacher bargaining laws increase the pe…

Note

Against Insurance Recission

Brian Barnes

120 Yale L.J. 328 (2010). 

This Note argues that rescission—the traditional remedy for innocent misrepresentations on insurance applications—systematically overcompensates insurance companies. In short, rescission allows insurers to refuse benefits to people who make innocent misrepresentations and…

Note

The Law of Describing Accidents: A New Proposal for Determining the Number of Occurrences in Insurance

Michael Murray

118 Yale L.J. 1484 (2009).

 

This Note argues that the term “occurrence” in insurance law should be defined by reference to the statistical concept of independence. Most courts define occurrence according to a version of the “causation” theory. This approach, however, yields inconsistent results f…

Article

Consumerism Versus Producerism: A Study in Comparative Law

James Q. Whitman

117 Yale L.J. 340 (2007).

The spread of American-style “consumerism” is a burning global issue today. The most visible symbols of American consumerism, large enterprises like Wal-Mart and McDonald’s, attract vitriolic attacks in many parts of the world. Political conflict in Europe (and elsewhere) …

Note

Insurance Law’s Hapless Busybody: A Case Against the Insurable Interest Requirement

Jacob Loshin

117 Yale L.J. 474 (2007).

For centuries, the law has prevented people from purchasing insurance on the life or property of strangers because such insurance contracts would give policyholders incentives to end the life or destroy the property in order to collect the insurance payout. The law thus re…

Note

Tenant Screening Thirty Years Later: A Statutory Proposal To Protect Public Records

Rudy Kleysteuber

116 Yale L.J. 1344 (2007)

Most consumers learn about tenant-screening reports only when a landlord points to an item on such a report as the reason for rejecting an application and provides the tenant with a copy of that report as required by law. Legal scholars have criticized these reports for mo…

Note

Bailing Out Congress: An Assessment and Defense of the Air Transportation Safety and System Stabilization Act of 2001

Jonathan Lewinsohn

115 Yale L.J. 438 (2005)

This Note provides the first detailed account of the conception, impact, and success of the Air Transportation Safety and System Stabilization Act (ATSSSA) of 2001, an $18 billion federal bailout of the airline industry passed eleven days after the terrorist attacks of Septem…

Comment

A "Flip" Look at Predatory Lending: Will the Fed's Revised Regulation Z End Abusive Refinancing Practices?

Michael J. Pyle

112 Yale L.J. 1919 (2003)

The regulation of predatory loans can be a tedious business. The whole topic redounds of such yawn-inducing terms as "single-premium credit insurance" and "negative amortization." Yet the human costs of predatory lending are no less real for all the financial jargon that mas…

Note

Inventing a Nonexclusive Patent System

John S. Leibovitz

111 Yale L.J. 2251 (2002)

Article

The Law and Economics of Reverse Engineering

Pamela Samuelson & Suzanne Scotchmer

111 Yale L.J. 1575 (2002)

Reverse engineering has a long history as an accepted practice. What it means, broadly speaking, is the process of extracting know-how or knowledge from a human-made artifact. Lawyers and economists have endorsed reverse engineering as an appropriate way to obtain such info…

Review

Tobacco Unregulated: Why the FDA Failed, and What To Do Now

Margaret Gilhooley

111 Yale L.J. 1179 (2002)

The book jacket promises drama. David Kessler, former Commissioner of the Food and Drug Administration (FDA), is said to tell "a gripping detective story," a story of "right and wrong" and "moral courage." The "unlikely heroes" are a small team of FDA employees who set out t…

Essay

Stopping Above-Cost Predatory Pricing

Aaron S. Edlin

111 Yale L.J. 941 (2002)

This Essay has refocused the predatory pricing debate on ex ante incentives--i.e., the incentives for entry and limit pricing before the predatory period--instead of the traditional focus of high prices after the predatory period. Ideally, a monopoly incumbent should price re…

Essay

Drug Designs are Different

James A. Henderson Jr. & Aaron D. Twerski

111 Yale L.J. 151 (2001)

In an essay published in this Journal entitled Is There a Design Defect in the Restatement (Third) of Torts: Products Liability?, George Conk criticizes the American Law Institute and the Reporters of the new Restatement for immunizing prescription drug manufacturers from lia…