Private Right Of Action Research Articles

In Case You Haven't Heard…

On June 8, the U.S. Supreme Court preserved the rights of Medicaid beneficiaries to sue state officials in federal court for violating provisions of the Medicaid Act — issuing a “big win” for people with disabilities in the Health and Hospitals Corporation v. Talevski case, the Bazelon Center for Mental Health Law's Monthly Briefing stated on June 23. Justice Ketanji Brown Jackson wrote the 7‐2 majority opinion. This important decision preserves a critical tool for advancing community integration and helps people get the medical and mental health services they need, the Bazelon Center stated. The Bazelon Center helped lead an amicus effort in this case by disability and civil rights groups. Their amicus brief urged the Supreme Court to reaffirm a private right of action to enforce public program guarantees and disability rights. It explained the need for individuals, particularly those with disabilities, to have the ability to sue state and local governments in order to hold them accountable when their civil rights are violated under Medicaid and other public programs. “We also helped lead a large‐scale campaign of advocates in Indiana to raise awareness of the importance of the case and urge that the defendants withdraw their appeal. Thank you to our coalition of disability and civil rights advocates in Indiana and nationwide and our fellow amici for helping secure this victory!” Bazelon Center officials stated.

Individual Private Rights of Action under the Platform-to-Business Regulation

This article explores the availability of individual private rights of action under the Platform-to-Business Regulation. It is argued that Member States are required to provide for such remedies for the benefit of business users of online intermediation services and corporate website users. Individual rights of action are necessary, first, to ensure an adequate and effective level of overall enforcement and, second, to effectuate the implicit rights that must be inferred from the obligations the Regulation imposes on providers of online intermediation services and search engines. To make this case, we illustrate the practical relevance and deficiencies of individual rights of action using several German court cases; examine the key elements of the Regulation’s ‘visible’ enforcement architecture; apply the ECJ’s case lines on implicit individual rights and private rights of action as a non-specified enforcement tool; and provide an analysis of the potential added value and perceived weaknesses of individual rights of action as a mechanism to enforce the Regulation. Platform-to-business regulation 2019/1150, private enforcement, individual rights of action, online intermediation services, online search engines, amazon marketplace, platform economy, choice-of-court agreements, principle of effectiveness

Deregulating Consumers from the Airline Industry—DOT’s Proposed Rule in Response to U.S. Airlines’ Refusal to Refund Unused Tickets During COVID-19

The COVID-19 pandemic has resulted in significant delays and cancellation of airline tickets without proper refunds to consumers by U.S. airlines. In response to an unprecedented number of consumer complaints, in August 2022, the Department of Transportation (Department or DOT) proposed new rules regarding airline ticket refunds and consumer protections.Does this rule go far enough? This article provides a summary of the events and policy changes leading up to the Airline Deregulation Act (ADA) of 1978 and challenges the scope of federal preemption over the field of airline regulation that has created a boon to air carriers while essentially eliminating consumers as a market influencer. A review of court opinions since the enactment of the ADA shows an ongoing struggle with the scope of preemption and tenuous carve-outs for private rights of action. The role and effectiveness of DOT is evaluated in light of airlines refusal to comply with DOT requirements to provide ticket refunds for cancelled flights during COVID. This article also suggests ways to increase airline accountability for compliance with airline refund policies and increase protection of consumer rights by empowering consumers to bring private actions against airlines.

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A Comcast Case Study

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A <i>Comcast</i> Case Study

Disparate Impact And Ecosystem Services As Tools For Community Activism

Environmental movements have been hindered in utilizing disparate impact as an effective legal mechanism for change. Since the 2001 Sandoval ruling limited the private right of action for Title VI disparate impact claims, environmental justice advocates have adopted the disparate impact framework as a persuasive tool to analyze, investigate, and challenge inequitable development. Concurrently, ecosystem services have blossomed as a growing field. The ecosystem services framework asserts that ecosystems providee conomic and health benefits for communities. However, this framework faces challenges with value recognition and visibility, lack of implementation within existing institutional frameworks, and inequitable access. This article explicitly combines the disparate impact and ecosystem services frameworks together to strengthen each other. Specifically, this article argues that incorporating ecosystem services within disparate impact analyses can provide new persuasive data and evidence for environmental justice movements. Additionally, environmental justice advocates utilizing ecosystem services frameworks can increase the field’s visibility, data, and provide more information regarding inequitable ecosystem access.

The Second Circuit's Extraterritorial Application of the Commodity Exchange Act

In August 2019, the Second Circuit ruled in Prime International Trading, Ltd. v BP P.L.C. that plaintiffs bringing a private action under the Commodity Exchange Act (CEA) must plead a domestic transaction and domestic violative conduct. By requiring that plaintiffs plead domestic illegal conduct, Prime International’s holding will severely limit plaintiffs’ ability to seek damages in the United States, even when they trade entirely on U.S. markets. The high pleading bar imposed by Prime International is especially impactful given that trading commodities and futures contracts is more accessible than ever due to electronic platform-based trading, which allows traders to access U.S. and foreign markets with ease. &#x0D; This Note argues that Prime International improperly narrowed the domestic application of CEA section 22, which grants plaintiffs a private right of action. Instead, courts should adopt the “sufficiently domestic” analysis from Parkcentral Global Hub Ltd. v. Porsche Automobile Holdings. Under this suggested analysis, a plaintiff would need to allege that violative conduct impacted a domestic transaction to plead section 22. Additionally, the court would need to evaluate whether the claim is properly domestic or impermissibly foreign. Unlike the Prime International standard, domestic conduct would not be necessary—though it would likely satisfy the sufficiency analysis.

Fighting Global Surveillance: Lessons from the American Muslim Community

The United States government has been spying on its citizens through a massive surveillance infrastructure that is unrestricted to a particular target or suspicion of wrongdoing. The statutory and regulatory authorities responsible for this infrastructure are sprawling and often secret. Built-in limitations and oversight mechanisms are riddled with loopholes or inaccessible due to exceedingly high thresholds. Litigation challenges to surveillance overreach often fail at standing. Under the current doctrine, plaintiffs must show that their own communications have been surveilled by a specific surveillance program. This Note contributes to surveillance reform by proposing a private right of action that sets the requirements for Article III standing in surveillance cases to broaden access to judicial redress for would-be plaintiffs with meritorious claims.

Individual Private Rights of Action under the Platform-to-Business Regulation

Individual Private Rights of Action under the Platform-to-Business Regulation

Breaking the Privacy Gridlock: A Broader Look at Remedies

Divisions over two enforcement issues—private right of action and federal preemption—have long gridlocked the effort to enact federal consumer privacy legislation. A look at regulatory systems outside the privacy field, however, reveals a complex landscape of enforcement mechanisms and remedies, many of which have not yet received much attention in the privacy debate. Insights from financial services regulation, environmental law, labor law, and other fields may offer ideas for assembling an effective web of enforcement for a federal privacy law. In November 2020, we convened two workshops bringing together scholars from fields other than privacy to describe the enforcement and remedies structures in those other fields. In this paper, we offer some insights drawn from those workshops and further research, in the hope that they will generate creative thinking and expand the scope of the remedies and enforcement discussion in the privacy arena.

Sue The Fed: The Case for Privately Enforceable Statutory Constraints on Federal Reserve Emergency Lending

The federal government’s economic response to the COVID-19 epidemic has principally been one in which the Federal Reserve has set up extraordinary lending facilities in partnership with the Treasury Department. These facilities were modeled on multi-trillion-dollar lending facilities set up by the Federal Reserve in 2008 in response to the prior economic crisis. These Federal Reserve lending facilities are extraordinary in size but also extraordinary because they involve lending to firms that are not banks. Federal Reserve lending over the first hundred years of its history was almost exclusively limited to banks. Congress put in place statutory limits on this extraordinary lending authority in the Dodd-Frank Act of 2010 to limit the Federal Reserve’s discretion and minimize the risk that generous lending by the Federal Reserve would encourage excessive risk taking. Those limits prohibit the Fed from supporting insolvent firms, from propping up individual firms like it did with AIG in 2008, includes a number of other prescriptive measures to ensure the Federal Reserve takes reasonable risk management practices even in extraordinary times. This paper argues that those limits have not proven enforceable nor constraining on the Fed’s discretion, and this paper instead argues that a private right of action to enforce them would better fulfill Congress’ objective in the Dodd-Frank Act to limit Federal Reserve discretion in lending to non-banks.

The Law: The Influence of the President in the Adoption and Enforcement of Private Rights of Action

AbstractLitigation by private parties is authorized by dozens of federal statutes, resulting in thousands of lawsuits every year. Recent scholarship has suggested that Congress authorizes litigation by private parties to enforce federal law in order to limit the ability of the president to influence enforcement. I argue, however, that the apparent influence of presidential partisanship on adoption of private enforcement regimes is spurious, resulting from the increased use of this enforcement mechanism beginning in the 1960s. Further, I show that presidents meaningfully influence the rate of private litigation. Specifically, for statutes with liberal policy goals, litigation rates are substantially higher when a Democratic president is in office and when agencies are more politicized. Therefore, if Congress desires to insulate policy from the president, private enforcement regimes are unlikely to be a useful policy tool.

Pharmaceutical Fraud: Let Go of Civil Rico, and Revive Section Five of the FTC Act

A circuit split exists regarding pharmaceutical fraud and whether or not consumers and third-party-payors can successfully prove proximate cause under civil RICO. The plaintiffs in these cases allege that they would not have paid for a drug had the manufacturer disclosed a known safety risk. Conversely, the defendants allege that the chain of causation is broken through a doctor’s prescription of the drug, thereby making the manufacturer not proximately liable for the subsequent purchase. The courts are split—some agreeing with the plaintiffs, and some with the defendants. However, this Comment will explore an alternative route, which is to allow plaintiffs a private right of action under Section 5 of the Federal Trade Commission Act in order to pursue a pharmaceutical fraud cause of action against a manufacturer. This would alleviate the proximate cause burden that plaintiffs face under civil RICO, and provide a solution for the courts. This Comment proceeds in six parts. Part I provides background information in regards to the statute RICO, and how it morphed into a civil use known as the civil RICO statute. Part II addresses the current circuit split surrounding civil RICO and its proximate cause element within pharmaceutical fraud cases. Part III discusses the Federal Trade Commission and how the FTC operates under the FTC Act, and more specifically, what Section 5 of the Act offers consumers. Part IV compares civil RICO to Section 5 of the FTC Act with an in depth analysis of each. It also dives into FTC data to suggest that not only does the FTC need help in pursuing actions, such as pharmaceutical fraud under the FTC Act, but also consumers. Both struggles would be alleviated through a consumer private right of action under Section 5. Accordingly, Part V suggests a solution to the circuit split issue, which is to offer consumers a private right of action under Section 5 of the FTC Act in order to pursue pharmaceutical fraud, instead of utilizing civil RICO and its difficult proximate cause element. Part V also addresses a counterargument to the idea of a private right of action under Section 5 of the FTC Act, which is to utilize state consumer protection laws instead. Part VI concludes.

Ending School Brutality

Children, especially Black children, are killed, traumatized, injured, and terrorized through assaults, solitary confinement, inappropriate handcuffing, and other excessive applications of physical force upon children in public schools. The state employees enacting such maltreatment are not just police. They are mainly teachers, principals, and security guards, and they are given authorization by law for purposes of “educating,” “disciplining,” and “maintaining order” in public schools. Scientific research does not support the use of physical force to improve behavior, however. This article describes the problem of school brutality, the excessive, unwarranted, and traumatizing use of physical force by state employees upon students. By traumatizing children, school brutality can cause lasting and disabling developmental and educational harm. School brutality is facilitated by multiple legal structures, including a tort law privilege rooted in colonial times; an inconsistent patchwork of state laws permitting seclusion, restraint, and corporal punishment; qualified immunity; lack of regulation of police officers’ actions in schools; federal funding for regular police presence in public schools; and lack of enforcement and review of reporting on school brutality. Substantive due process rights under the Fourteenth Amendment, originally framed to protect adult criminal suspects, are inadequate for children. Unless state employees become less shielded from civil and criminal actions that seek to hold them accountable for school brutality, new private rights of action are needed. State and federal legislators can save lives and support educational achievement by ending the legalization of school brutality.

The Elastic Corporate Form in International Law

The corporate form is being distorted by international law. Surprisingly, this is occurring in the law of foreign investment, where one would expect the stability and efficiency of corporate formalities to matter most. The main driver is a highly enforceable mode of treaty-based arbitration known as investor-state dispute settlement (ISDS), which affords foreign investors a private right of action to sue sovereign states. Questions of corporate law come up regularly in ISDS. But when addressing them, tribunals have varied widely in their respect for core formalities. This is undermining the basic relationships among all corporate stakeholders—including shareholders, management, creditors, governments, and peoples. This Article makes four main contributions. First, it identifies a fundamental but overlooked elasticity in how international law grapples with corporate law. Second, I show how this distorts the corporate form, with inefficient and unfair consequences that drive up the costs of doing business for all concerned—the opposite of what investment treaties are designed to achieve. Third, I offer a coherent, if troubling, account of ISDS’ ambivalence to form, by focusing on winners and losers. The elastic formalism of investment arbitration benefits neither states nor investors (as a class). The real winners are claimants. The pattern of cases always tends to expand access to arbitration and reduce the risks of bringing claims—often at the expense of states’ and investors’ broader interests, ex ante and ex post. Finally, I suggest that this account points toward a gulf between the stated purposes of ISDS and its practical functions. The investment treaty regime is regularly pitched as a vehicle for promoting efficient investment, but this goal has been gradually subordinated to expanding (privileged) access to justice through claims to damages.

All For Naught: An Empirical Examination of the Impact of Breach Notification Laws

In this work, I examine the impact that breach notification laws have had on the incidence rate of breaches of consumer data. Since 2003, every US state has passed some form of breach notification requirement. In doing so, the stated goal has been to create a market for consumer privacy, wherein consumers may select into interacting with firms that are more responsible stewards of their data. However, limited empirical work has been devoted to determining the impact of these legislative efforts. Results from a multi-site difference in difference estimation indicate no significant change in the number of breaches or the number of breached records after the passage of such statutes. Results further suggest no demonstrable long-term change in the number of identity thefts or claims of fraud, i.e., a precisely estimated null. This absence of effect persists when considering legislative efforts that create private rights of action, require notification of the attorney general, and more; and suggests the need to consider different ways to approach consumer privacy. I propose one such alternative, standards setting by an administrative agency which creates safe harbors for conforming firms.

The Directive on Unfair Trading Practices in the Agri-Food Supply Chain: Regulatory Ambitions and Legal Instruments

The Directive on Unfair Trading Practices in the Agri-food Supply Chain is characterized by its objective to increase agricultural producers’ income by redistributing the gains from trade along the supply chain. In this article, arguments are advanced that make it doubtful whether this goal can be achieved: the Directive’s restrictions will (at best) only slightly increase the suppliers’ relative bargaining power. Neither the attempt to limit the Directive’s scope to cases of unequal bargaining power nor the ban of only those practices that are regarded as particularly “egregious” will ensure that the Directive’s restrictions do not also preclude efficiency-enhancing practices. Nonetheless, given the legislature’s wide discretionary power, the Directive could legally be adopted on the basis of Article 43(2) TFEU. While the Directive’s focus is entirely on public enforcement, there are sound reasons to believe that the Directive assigns implicit rights to those parties that are within the Directive’s protective scope and that are (potentially) aggrieved by infringements. The consequences of the incorporation of prohibited contract terms are analysed and potential legal bases for private rights of action are discussed.

Nevsun Resources Ltd. v. Araya

In Nevsun Resources Ltd. v. Araya, the Supreme Court of Canada declined to dismiss a series of customary international law claims brought by Eritrean refugees against a Canadian mining corporation for grave human rights abuses committed in Eritrea. In doing so, the Supreme Court opened the possibility of a novel front for transnational human rights litigation: common law tort claims based on customary international law. Under the doctrine of adoption, customary international law is directly incorporated into the Canadian common law. However, Canadian courts have not yet upheld a private right of action for violations of customary international law. Writing for a divided court (5–4), Justice Abella allowed the plaintiffs’ claims to proceed, finding that it is not “plain and obvious” that the plaintiffs’ customary international law claims are bound to fail under either Canada's burgeoning “transnational” or “foreign relations” law, or international law itself. In reaching this conclusion, she offered a unique and overdue reflection on the role of national courts in identifying, adopting, and developing custom. A larger majority of the court (7–2) also rejected outright the application of the act of state doctrine in Canada, tracking several common law systems in limiting the doctrine in favor of human rights litigants.

A Fare Share: A Proposed Solution to Address the Racial Disparity in Access to Public Transportation Funding in America

Black American households are up to six times less likely to own a car than white families and are four times more likely to rely on public transportation to meet their daily needs. Despite this, communities of color have seen consistent disinvestment in their transit infrastructure. Four hundred years of continued housing segregation combined with post-recession austerity policies and ongoing pro-automobile bias has exacerbated this disparity. This Note proposes a straightforward legislative tool to begin to combat this inequity. The proposed legislation would require that urbanized areas spend their public transit dollars according to the population density of the communities a given project would serve, create reporting requirements related to the racial and economic impact of transit projects, and establish a private right of action. In proposing this legislation, this Note evaluates the state of civil rights litigation as it pertains to transportation racism and draws lessons from other areas such as environmental law in order to put forth a simple solution that would have tangible effects across the country in both the short and long term.

Securities Scholars’ Comment Letter on Draft Model Whistleblower Award and Protection Act

In May 2020, the North American Securities Administrators Association (NASAA), an organization representing state and provincial securities regulators in Canada, the United States, and Mexico, released a draft Model Whistleblower Award and Protection Act (the Proposed Act) for public comment. The Proposed Act drew from securities-whistleblower statutes in Utah and Indiana, as well as the federal Sarbanes-Oxley and Dodd-Frank Acts. In brief, the Proposed Act provided for a state-level securities whistleblower-award program and an anti-retaliation private right of action. NASAA received seven comment letters, including one from securities scholars. Our securities scholars’ letter highlighted two areas of concern. First, we noted that in Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 778 (2018), the Supreme Court held that the Dodd-Frank Act did not protect from employer retaliation those who blow the whistle only internally. Given that the Proposed Act’s text closely tracked Dodd-Frank’s anti-retaliation provision, we observed that it had the same problem seen in Digital Realty. We urged a revision to close this gap, a change that would give internal securities whistleblowers at least a state retaliation right of action. Second, we urged that the whistleblower-award provision allow for attorney-mediated anonymous reporting. In late August 2020, NASAA released the final version of the act (the Final Act). The Final Act’s Section 10 resolved our Digital Realty concern by extending anti-retaliation protections to those who report only internally. The Final Act’s Section 4 addressed our concern that whistleblowers who submit anonymous reports pre-award should remain eligible for whistleblower awards. A copy of our comment letter follows this introductory note. The Proposed Act is attached as Exhibit A and the Final Act as Exhibit B.

Precontractual Damages as a Result of an Irrevocable Offer – A Resolution Within the CISG

This paper is in response to by Anne Rossen, Maria Pedersen and Thomas Neuman titled – How far does the dynamic doctrine go? Looking for the basis of pre-contractual liability in the CISG? On the backdrop of this paper, it is worth noting that the United Nations Convention on Contracts for the International Sale of Goods (CISG) is one of the most successful international commercial law treaties ever devised. It has been ratified by most of the world's important trading countries and become a template for the manner in which commercial law treaties are drafted. The CISG is considered a self-executing treaty. The CISG creates a private right of action in federal court under federal law. It provides the default set of rules that govern contracts for the sale of goods between parties located in different Contracting States, and, in some cases, where only one of the parties is located in a Contracting State. This article argues that the CISG can accommodate breaches of pre-contractual conditions by using the same procedure as for breaches of contract. It is a controversial issue but nevertheless it is arguable that the CISG can cover the internal gap via general principles embedded within the four corners of the CISG. For this reason, this article will look at Article 16(2). In particular, the following issues will be relevant, the revoking an irrevocable offer; the effects of Article 4; and the effects of Articles 71-77. More importantly, this article argues that he CISG is able to resolve a breach of article 16(2) within its four corners.