It's Time to Give Customers of Financial Services and Products Their Day in Court
Originally published by the Oxford Business Law Blog. Reprinted with permission.
Forced arbitration clauses are now almost impossible to avoid in consumer contracts for financial services and products ranging from credit cards to private student loans. Despite their ubiquity, most consumers aren't even aware of them. This is because companies frequently bury them deep in the lengthy fine print of their contracts, which they then offer to consumers on a 'take it or leave it' basis.
Forced arbitration clauses warrant close scrutiny from policymakers and the public because their abuse poses a significant threat to the financial well-being of millions of Americans. What they say is that if you have a dispute with your financial services company and can't persuade the company to address the harm it has caused, you are prohibited from suing the corporation in court. Instead, your only option is to try pursuing your claim in an inferior forum known as 'arbitration'.
Consumers face high barriers to even initiate an arbitration claim, and, once started, they will find that every step of the process is heavily stacked against them and in favor of the financial services company. The basic principles of fairness and due process …
When it comes to worker health and safety, preventing injuries and illnesses is the number one goal. It was for this very purpose that Congress enacted the Occupational Safety and Health Act (OSH Act) and tasked the Occupational Safety and Health Administration (OSHA) with setting and enforcing strong workplace standards. But when preventative measures fail and workers are harmed, agency enforcement actions against the employer (while necessary) don't provide legal redress to workers or their families for the damages they've incurred. Instead, recovering damages often necessitates they hire a private attorney to help them navigate this complex area of the law.
The attorneys who take these cases play a critical role in workers' rights advocacy, and their experience offers a unique perspective that can help advocates better understand the challenges workers face and opportunities for overcoming them. Recently, I had the pleasure of speaking with one such …
Originally posted at Notice & Comment, a blog of the Yale Journal on Regulation and the American Bar Association Section of Administrative Law & Regulatory Practice, as part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. Reprinted with permission.
The Separation of Powers Restoration Act, or more easily known as SOPRA, is not a complicated bill. If enacted, it would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to overrule statutorily both Chevron, USA, Inc. v. NRDC and Auer v. Robbins (and its forebear Bowles v. Seminole Rock & Sand Co.), but not Skidmore v. Swift & Co.
The idea is not new. Indeed, beginning in 1975, well before Chevron began its …
In a story published yesterday, the Center for Public Integrity takes a deep dive into the public health impact of the nation’s “super polluters,” a collection of industrial polluters that account for an outsized share of toxic air pollution and greenhouse gas emissions in the United States.
Produced in collaboration with USA Today and The Weather Channel, the story focuses in on Evansville, Indiana, a city of 120,000 nestled in the southwest corner of the state and ringed by no fewer than seven coal-fired power plants within 30 miles. According to the story, they collectively pump out millions of pounds of toxic air pollution and emit greenhouse gases comparable to those produced by Hong Kong.
At the heart of CPI’s piece is an Information Age equivalent of shoe-leather journalism: the Center merged data from two EPA datasets – the Toxics Release Inventory and the Greenhouse …
Larry Hogan promised to be the "best environmental governor that's ever served" in Maryland. But three recent policy developments call that claim into question.
Earlier this year, the Hogan administration vetoed the Clean Energy Jobs Act, which would have raised Maryland's renewable energy portfolio standard – the share of electricity that energy providers must derive from renewable sources – from 20 percent by 2022 to 25 percent by 2020. A stronger commitment to renewable energy could have had a tremendous effect on the state economy, attracting clean energy providers and other environmentally conscious companies. Moreover, according to the Maryland Department of Legislative Services, the act would have raised monthly utility bills by only $1 to $2.
With the veto, the governor declined to increase the renewable energy goal and shorten the time period for achieving it, despite being in a position to do so. Instead, he threw …
Originally published on RegBlog by CPR Member Scholar Amy Sinden.
In the wake of the U.S. Supreme Court's opinion in Michigan v. EPA last term, a number of commentators have revived talk of something called the "Cost Benefit State." It is supposed to be a good thing, although it makes some of us shudder. The phrase was originally coined by Cass Sunstein in a 2002 book by that name. It describes a supposedly utopian government in which agencies and courts apply to all regulatory decision-making a formal cost-benefit analysis (CBA) grounded in welfare economics.
Sunstein and other eager proponents of CBA have seized on language in the Michigan case that, in the course of striking down the U.S. Environmental Protection Agency's (EPA) mercury rule, gestured toward the existence of a presumption favoring the consideration of costs in regulatory decision-making. Sunstein heralded the opinion …
Next Tuesday, the U.S. Court of Appeals for the D.C. Circuit will hear four hours of argument over the Clean Power Plan (CPP). Federalism-linked statutory, regulatory, and doctrinal law has been and will be crucial to the CPP's fate, and several issues of federalism will play a key role.
In designing the CPP, the U.S. Environmental Protection Agency built on states' actions in reducing greenhouse gas (GHG) emissions in recent years through use of GHG trading regimes, and nudging or requiring power plants to produce energy through cleaner or renewable sources. The CPP's core requirements – capped pollution targets for each state – are built on EPA's assessment of what "best systems of emission reduction" have been "adequately demonstrated," and derives the targets from that assessment.
States were able to make such progress during recent decades due both to their longstanding powers to …
Federal contractors that violate labor laws not only cheat workers by disregarding their rights to fair pay and safe workplaces, but they also tend to run into unexpected costs and delays during performance of the contracts they're awarded. With this in mind, in 2014, President Obama issued Executive Order (E.O.) 13673, which seeks to improve cost savings and efficiency in government contracting by requiring prospective contractors to disclose labor law violations and obligating contracting agencies to review those violations before awarding contracts. The E.O. also requires federal contractors to provide employees with wage statements that include certain information so that workers can verify the accuracy of their paychecks.
Consistent with the E.O.'s directives, the Federal Acquisition Regulatory (FAR) Council and Department of Labor (DOL) published a final rule and guidance, respectively, in the Federal Register on Aug. 25. The Center for Progressive …
The Chesapeake Bay watershed and its restoration framework under the Bay Total Maximum Daily Load (TMDL) are so large and complex that it can be a real challenge to study, much less write about, the problem and the ongoing restoration efforts. This is why the recent U.S. Environmental Protection Agency (EPA) assessment of the tiny Beck Creek watershed in Lebanon County, Pennsylvania is so valuable. The same activities that have fouled Beck Creek and the restoration practices that are working to revive it are the same problems and solutions familiar to all of us who study the Chesapeake Bay.
The biggest contributing source of nitrogen pollution in the Bay watershed is agriculture, and Pennsylvania sends the most nitrogen pollution into the Bay of any state in the region. Because of this, the small, agriculture-dominated watershed surrounding Beck Creek is literally the epicenter of the problem, making …
California's recent climate legislation is noteworthy not only for its toughest-in-the-nation carbon reduction goals – 40 percent below 1990 emissions by 2030 – but also for continuing the state's tradition of linking climate and environmental justice goals. AB 197, which accompanied a carbon reduction bill known as SB 32, prioritizes direct emission reductions likely to improve air quality; increases public access to information about carbon, conventional, and toxic emissions; and establishes a new cross-cutting legislative oversight committee to systematically monitor California's multi-faceted climate programs.
The environmental justice movement has long recognized the connection between climate policies and environmental justice. Advocates have supported stringent carbon reduction targets because poor and marginalized communities are the most vulnerable to climate change impacts like heat waves, drought, and economic disruptions to agriculture and tourism.
Climate policies also have important implications for the traditional pollutants that pose the most immediate threats …
