Recent litigation has challenged local California prosecutors’ power to seek and receive statewide relief for violations occurring outside county lines. This Essay argues against this trend and explains why it is inappropriate to apply the constitutional norms that state-versus-federal conflicts to …
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 …
The Tarnished Golden Rule: The Corrosive Effect of Federal Prevailing-Party Standards on State Reciprocal-Fee Statutes
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…
Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana
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…
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…
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…
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…
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…
Lawmaking in the Shadow of the Bargain: Contract Procedure as a Second-Best Alternative to Mandatory Arbitration
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…
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 …
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…
Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act
120 Yale L.J. 1263 (2011).
The Impact of Teacher Collective Bargaining Laws on Student Achievement: Evidence from a New Mexico Natural Experiment
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…
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…
119 Yale L.J. 1329 (2010).
The Law of Describing Accidents: A New Proposal for Determining the Number of Occurrences in Insurance
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…
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) …
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…
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…
116 Yale L.J. 217 (2006)
Bailing Out Congress: An Assessment and Defense of the Air Transportation Safety and System Stabilization Act of 2001
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…
A "Flip" Look at Predatory Lending: Will the Fed's Revised Regulation Z End Abusive Refinancing Practices?
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…
111 Yale L.J. 2251 (2002)
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…
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…
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…
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…