Chapter
Socio-legal studies of consumer disputing
Consumer disputing and the problematic of law and everyday life
The role of intermediaries in the provision of access to justice
Small claims courts and consumers
The comparative dimension: legal transplants and irritants
3 Consumer access to justice in common law countries: a survey of the issues from a law and economics perspective
The problem of legal costs
Class actions and public interest suits
Industry-specific arrangements
4 Rethinking consumer protection policy
Principles for an information-based approach to consumer protection policy
Deciding whether regulation is a necessary and feasible response
Choosing a regulatory instrument
The role of civil redress in consumer protection policy
To what extent is civil justice a public good?
A decision-tree framework for evaluating institutional options in the provision of civil justice
Public or private law enforcement
Informal dispute resolution
Wholesale rather than retail civil justice
Judicial oversight of non-judicial adjudicative systems
Reforming the formal judicial adjudication process
Judicial policing of unfair contract terms
Coercion/situational monopoly
Part II Issues in contract and tort
5 Standard form contracts in Europe and North America: one hundred years of unfair terms?
The old paradigm I. Sociology of law: standard form contracts and the power of the firm
Origins of standardised contractual terms
Overcoming subjection: the case for compulsory terms
The old paradigm II. Law and economics: standard form contracts and the market
Protecting customers through compulsory terms
Efficiency-oriented theories
Reregulation through a property rule–disclosure
Reregulation through a liability rule–the option for compulsory terms
Reregulation through default rules
Ultimate scholarly view in favour of compulsory terms
On the illusory efficiency of the deregulatory, disclosure and default rules views
Inefficiency of customers’ acquiring information
Inefficiency of sellers’ providing information
The efficiency of compulsory terms
The new paradigm: rethinking unfairness
Hypothesis A: the case for avoiding compulsory terms too costly for society
Hypothesis B: the case for avoiding compulsory terms unduly costly for society
Hypothesis C: avoiding compulsory terms unduly costly for institutional reasons
6 BSE, CJD, mass infections and the 3rd US Restatement
Structure of the Restatement: fragmentation according to certain proof shortcuts and according to product class
Structure of the Restatement: fragmentation according to classification of dangerous condition
How would a BSE/CJD case be dealt with under the Restatement?
The treatment of infection cases by the Restatement: raw materials versus food
Contrasting gaps in case law experience
The European Directive and its clones
Appendix: A selection of US infection cases
Part III Services and the consumer
7 Services of general interest and European private law
Privatisation and new tasks for private law
Public law principles through private law?
Services of general interest – the core area
A principle of legitimate expectations
Arguments from corporate responsibility
The basic rules of the marketplace
The principle of non-discrimination and access to service
The principle of provision of services and the disadvantaged citizens
8 The new Financial Ombudsman Service in the United Kingdom: has the second generation got it right?
Ombudsmen in the financial services sector
The Financial Ombudsman Service
Constitution and structure of the FOS
Internal procedures as a gateway for complainants
Possible impact of the Article 6 provisions of the European Convention on Human Rights
9 Economic appraisals of rulemaking in the new society: why, how, and what does it mean? The challenge for the consumer
The reasons for the introduction of CBA into the process of lawmaking
The place of CBA in the lawmaking process
Cost–benefit analysis – what is it?
Difficulty in predicting policy impacts
Identification of costs and benefits
Valuation of costs and benefits
Difficulty in predicting policy impacts
Identification of costs and benefits
Valuation of costs and benefits
An analysis of the CBA accompanying the proposal to regulate mortgage advice
The background to the analysis
Comparison of costs with benefits
The potential impact of CBA in the future for consumers of financial services
How consumers might try to ensure their voices are better heard in the process
Conclusion (well, so what?)
Part IV Consumer bankruptcy law
10 Access to the discharge in Canadian bankruptcy law and the new role of surplus income: a historical perspective
The 1997 amendments: the new debtor responsibility Act?
Bill C-5 and the new surplus income regime
Rehabilitation reconsidered
The discharge in Canadian bankruptcy law: a historical perspective
The Pre-Confederation era
The Insolvent Act of 1875 and repeal
The renewed debate and the Bankruptcy Act of 1919
11 The death of consumer bankruptcy in the United States
Prologue: traditional consumer bankruptcy in the United States (and the push for reform)
Traditional consumer bankruptcy in the United States
Origins of the means test: the consumer credit industry’s push for reform
Consumer bankruptcy after the fall
Means testing under the Reform Bill
Living expenses: IRS Collection Standards
Miscellaneous favoured expenses
Rebuttal of the presumption of abuse
Secured creditor windfalls
Exemption bonanza and other privileges for the rich
Part V Procedure and process issues
12 Privatisation and power: dispute resolution for the Internet
Three worlds of privatised dispute resolution
Trusted systems and digital rights management technology
Mandatory binding arbitration of consumer disputes
Consequences of privatised dispute resolution
Shift of procedural advantage
ICANN domain name disputes
Due process gaps and repeat player advantages
Loss of government control over law
13 Armageddon through aggregation? The use and abuse of class actions in international dispute resolution
Are international class actions necessary?
Are class actions necessary to motivate responsible behaviour?
Incompatibility of contingent fee principles
Are class actions compatible with civil law jurisprudence?
International class actions and global liabilities
International class actions in United States courts
International class actions in other nations
Appendix: proposed amendments to Fed R. Civ. P. 23
Part VI Conflict of laws issues
14 Adapting international private law rules for electronic consumer contracts
International private law and electronic commerce
Consumer contracts in electronic commerce
International private law rules for electronic consumer contracts – European initiatives
Jurisdiction rules for electronic consumer contracts
Electronic commerce in the European Union
The basis for developing rules of jurisdiction for civil matters in Europe
The Brussels 1 Regulation’s rules of jurisdiction for civil and commercial matters
Special jurisdiction for contracts under Article 5 .
Exclusive jurisdiction over consumer contracts in Articles 15–17.
What is a ‘branch, agency or other establishment’ in the context of electronic commerce?
The impact of the new provisions for consumers contracting online
European initiatives for electronic commerce and the information society interaction with international private law
European initiatives for choice of law principles for electronic consumer contracts
Choice of law rules for consumer contracts in the Rome Convention
The Distance Selling Directive
The global impact of the European Union’s initiatives
An overview of international private law rules for electronic consumer contracts in the United States
Framework of international private law in the United States
Principles of personal jurisdiction
Developments in international private law rules for electronic commerce in the United States
International private law and electronic commerce in the United States: some issues emerging for consumer contracts
The distinction between active and passive websites
Economic activities in the forum: the effects of acting within the forum state
Jurisdiction established where a website server is located
Distinction between goods and services received in the consumer’s domicile or elsewhere
The role of the Hague Conference on Private International Law
15 Waving goodbye to conflict of laws? Recent developments in European Union consumer law
Active and passive consumers
The Ingmar case: mistake or revolution?
Non-contractual consumer protection law
Market regulation by nation states
Influence of European law
Basic liberties of the EU Treaty
The European Human Rights Convention
The country-of-origin principle
International Perspectives on Consumers Access to Justice
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