Preemption Without Borders: The Modern Conflation of Tort and Contract Liabilities

Medical device jurisprudence has taken a turn for the worse recently, turning a deaf ear to patients who have been injured or killed by devices and covertly expanding the boundaries of federal preemption in ways that threaten fundamental contractual principles. Ever since the Court\u27s holding in Riegel v. Medtronic, district and appellate courts have effectively immunized the manufacturers of certain devices from contract, as well as tort, liabilities. The lower courts\u27 rulings are not only problematic as a matter of law, but raise novel concerns about federal regulatory preemption undermining individuals\u27 contract rights. A comprehensive analysis of the Court\u27s medical device jurisprudence and the relevant statutes and regulations establishes that consumers\u27 contractual claims should not be preempted. Further, because preemption of these claims shifts the costs of device-related injuries away from the entities that are in the best position to manage losses, doing so is economically inefficient. Finally, federal preemption of contract claims poses unique threats to contractual liberty and state autonomy. Whereas statutory preemption of tort liabilities consists of the state limiting the applicability of state-imposed duties, preemption of contractual liabilities constitutes government interference in obligations that private parties have voluntarily imposed on themselves. Not only is contract law an area of state sovereignty, but the federal government lacks an interest sufficient to justify denying the parties involved in medical device sales the right to address liability concerns contractuall

Consumer Protection in the Age of Big Data

The Big Data revolution is upon us. Technological advances in the degree to which third parties can record information about individuals, along with increases in the use of predictive analytics, are transforming the way that business is conducted in practically all sectors of the economy. This is particularly true in the insurance industry, where a firm’s ability to forecast the future is the central determinant of its profitability. Scholars and the media have touted the potential benefits of Big Data analytics—it will enable businesses to tailor their practices to suit consumers’ preferences and increase the efficiency of their operations. The Big Data movement’s potential negative impacts, however, have garnered significantly less attention. Commentators have focused on privacy and data security concerns as the primary problems associated with Big Data analytics. There have been essentially no attempts to assess how these developments affect consumers’ other interests or, more broadly, the extent to which they justify additional regulation of markets. This Article fills this gap. It identifies eight societal interests that will be affected by insurers’ uses of data—actuarial fairness, loss prevention, autonomy, non-discrimination, justice, utility maximization, privacy, and good faith—and describes how regulators could act to ensure that markets generate an optimal balance of these values. While laissez-faire regulatory approaches are superior for some types of insurance, more extensive state interventions are needed for products that are sold to individual consumers. Where additional regulation is needed, community rating rules, authorization requirements for policy modifications, and claims handling standards are the mechanisms best suited to guaranteeing that insurance markets continue to advance public interests in the Big Data era

Reining in Commercial Exploitation of Consumer Data

The collection and use of consumer data by commercial entities has quickly transitioned from being an obscure topic to a headlining issue in leading media outlets. The burgeoning societal awareness of how digital devices are collecting and transmitting data about individuals has led to growing concerns about how this information is being used, stored, and sold. Legal scholars have identified insurance as one of the market sectors where commercial use of individuals\u27 data could be particularly harmful to consumers. They have argued that, if left unrestricted, insurers would use Big Data analytics in ways that would decrease marginalized populations\u27 access to insurance, limit individual liberties, and allow insurers to shirk their contractual obligations. Working from the assumption that these concerns are valid, this Article considers whether existing laws are sufficient to prevent these abuses and provides an account of where further protections are needed. It argues that the primary laws targeted at restricting companies\u27 purchase and use of personal data-the Fair Credit Reporting Act, the California Consumer Privacy Act, and the Vermont Data Broker Act-may prevent certain problematic behaviors, but will not deter others. Additional state action will be necessary to protect consumers from exclusionary advertising practices, unfair underwriting rules, and bad faith claims handling behaviors

Reining in Commercial Exploitation of Consumer Data

The collection and use of consumer data by commercial entities has quickly transitioned from being an obscure topic to a headlining issue in leading media outlets. The burgeoning societal awareness of how digital devices are collecting and transmitting data about individuals has led to growing concerns about how this information is being used, stored, and sold. Legal scholars have identified insurance as one of the market sectors where commercial use of individuals\u27 data could be particularly harmful to consumers. They have argued that, if left unrestricted, insurers would use Big Data analytics in ways that would decrease marginalized populations\u27 access to insurance, limit individual liberties, and allow insurers to shirk their contractual obligations. Working from the assumption that these concerns are valid, this Article considers whether existing laws are sufficient to prevent these abuses and provides an account of where further protections are needed. It argues that the primary laws targeted at restricting companies\u27 purchase and use of personal data-the Fair Credit Reporting Act, the California Consumer Privacy Act, and the Vermont Data Broker Act-may prevent certain problematic behaviors, but will not deter others. Additional state action will be necessary to protect consumers from exclusionary advertising practices, unfair underwriting rules, and bad faith claims handling behaviors

Preemption Without Borders: The Modern Conflation of Tort and Contract Liabilities

Medical device jurisprudence has taken a turn for the worse recently, turning a deaf ear to patients who have been injured or killed by devices and covertly expanding the boundaries of federal preemption in ways that threaten fundamental contractual principles. Ever since the Court\u27s holding in Riegel v. Medtronic, district and appellate courts have effectively immunized the manufacturers of certain devices from contract, as well as tort, liabilities. The lower courts\u27 rulings are not only problematic as a matter of law, but raise novel concerns about federal regulatory preemption undermining individuals\u27 contract rights. A comprehensive analysis of the Court\u27s medical device jurisprudence and the relevant statutes and regulations establishes that consumers\u27 contractual claims should not be preempted. Further, because preemption of these claims shifts the costs of device-related injuries away from the entities that are in the best position to manage losses, doing so is economically inefficient. Finally, federal preemption of contract claims poses unique threats to contractual liberty and state autonomy. Whereas statutory preemption of tort liabilities consists of the state limiting the applicability of state-imposed duties, preemption of contractual liabilities constitutes government interference in obligations that private parties have voluntarily imposed on themselves. Not only is contract law an area of state sovereignty, but the federal government lacks an interest sufficient to justify denying the parties involved in medical device sales the right to address liability concerns contractuall