Category Archives: Consumer Law
‘Debunking the Market-Based Myths of Boilerplate’
Andrea Boyack, ‘Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights’, 110 Iowa Law Review 497 (2025). Andrea Boyack’s article, ‘Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights’, examines ‘problematic’ provisions in consumer contracts and may be viewed as a companion piece to her previous article, ‘The Shape of Consumer Contracts’ which is more […]
Michael Birnhack, ‘In Defense of Privacy-as-Control (Properly Understood)’
ABSTRACT Privacy-as-control (‘PaC’) is one of the dominant conceptions of privacy. PaC means that each person should be able to decide for themselves whether to disclose personal data to another person, company, or the state, when, how, and under which conditions. PaC is translated into operational mechanisms, namely Fair Information practices (FIPs). In practice, we […]
Marie Reilly, ‘The Unconscionably Short Warranty’
ABSTRACT A typical consumer product warranty covers products for defects that appear before the warranty period expires. If the manufacturer warrants a vehicle for 5 years or 60,000 miles, whichever occurs first, problems that require repairs after the warranty period expires are outside the warranty and therefore the buyer’s problem. Advocates for consumer buyers have […]
Christoph Engel, ‘The Negotiation Trap: An Experiment on a Large Language Model’
ABSTRACT In an experiment on the large language model GPT-4o, a supplier always makes a higher profit if it replaces uniform contract terms with a set of terms between which the customer may choose. The extra profit results from price discrimination. There is a first order and a second order effect. The first order effect […]
Meg Jones, ‘The Character of Consent: The History of Cookies and The Future of Technology Policy’
ABSTRACT The rich, untold origin story of the ubiquitous web cookie – what’s wrong with it, why it’s being retired, and how we can do better. Consent pop-ups continually ask us to download cookies to our computers, but is this all-too-familiar form of privacy protection effective? No, Meg Leta Jones explains in The Character of […]
Gareth Davies, ‘Consent or Pay: Transforming Internet Users from Products into Customers’
ABSTRACT The recognition in Meta that consent-or-pay models for online services are in principle lawful has caused concern that data protection and privacy are now only available to those who pay, whereas they should be fundamental rights. There is considerable attachment among lawyers to the pre-Meta idea that whether not personal data is provided should […]
Stacy-Ann Elvy, ‘The Vehicle Monitoring and Collection Technology Era’
ABSTRACT Vehicle monitoring and collection (‘VMC’) technology, including starter interrupt devices that remotely disable vehicles, and other GPS tracking devices are used in consumer vehicle agreements in subprime transactions. Subscription-based models supported by VMC features, such as over-the-air software updates that remotely disable or enable vehicular functions, have also appeared in the non-subprime automobile context […]
Stephen Ware, ‘Contracting Away Constitutional Rights in the United States: Adhesive Consent (Blanket Assent) to Arbitration and other Agreements’
ABSTRACT Law in the United States provides a constitutional right to a jury trial not only in criminal cases but also in many civil cases. However, parties often unknowingly trade away their civil jury rights in so-called ‘adhesion’ contracts the form contracts businesses present on a take-it-or-leave-it basis to consumers, workers, and others who typically […]
‘What if Producers Paid Us to Read Fine Print?’
Kelli Alces Williams, ‘Market Testing Boilerplate’, 74 Syracuse Law Review 229 (2024). One of my favorite cases from the perspective of consumer bargaining power is Boucher v Riner, which involved both my third-greatest physical fear (jumping out of a perfectly good flying airplane a few thousand feet above the ground) and my first-greatest jurisprudential concept […]
Isola and Esposito, ‘Better Call Your Lawyer: Dark Patterns are Best Understood as Unfair Commercial Practices’
ABSTRACT This article offers a clear definition of dark patterns and a comprehensive classification thereof using the framework provided by Directive 2005/29 on unfair commercial practices. The analysis builds on a systematic literature review that analyses how dark patterns are defined and the types of dark patterns discussed in 77 articles. Accordingly, we define a […]