The Rise of "Fringe Tech": Regulatory Risks in Earned-Wage Access

By: Nakita Q. Cuttino

The Probative Synergy of Plus Factors in Price-Fixing Litigation

By: Christopher R. Leslie

MDL in the States

By: Zachary D. Clopton and D. Theodore Rave

Remote Court: Principles for Virtual Proceedings During the COVID-19 Pandemic and Beyond

By: Alicia L. Bannon and Douglas Keith

The Fourth Amendment Stripped Bare: Substantiating Prisoners' Reasonable Right to Bodily Privacy

By: Meher Babbar

Untested and Neglected: Clarifying the Comparator Requirement in Equal Protection Claims Based on Untested Rape Kits

By: Emily Jones

Information Fiduciaries and Political Microtargeting: A Legal Framework for Regulating Political Advertising on Digital Platforms

By: Kimberly Rhum

Bostock v. Clayton County and the Problem of Bisexual Erasure

By: Nancy C. Marcus

Festschrift Celebrating Professor Marshall Shapo

Videos From Symposium 2020: The Second Amendment’s Next Chapter

NULR of Note: COVID Special Coverage

"Extraordinary" and "Highly Controversial": Federal Research of Solar Geoengineering Under NEPA

By: Charles R. Corbett

Bringing Racial Justice to Immigration Law

By: Kevin R. Johnson

Toward a National Resilience Fund

By: Paul Rose

The Rise of “FringeTech”: Regulatory Risks in Earned-Wage Access

By: Nakita Q. Cuttino | April 18, 2021

By many accounts, the financial technology, or FinTech, sector appears to have developed an innovative solution to assist low-income workers with income shortfalls between standard paydays by displacing fringe financial service providers, namely payday lenders. Earned wage access programs facilitate early transfers of earned-but-unpaid wages to low- income workers through mobile platforms, algorithmic technology, and GPS tracking. To many, earned wage access programs represent a win-win for employees and employers. These programs are believed to be cheaper and safer alternatives to payday loans. Preliminary research also suggests these programs improve labor-retention rates for employers and help reduce financial distress for low-income employees. Consequently, a growing number of employers, including Walmart Inc. and Amazon.com, Inc., have partnered with earned wage access providers to offer these programs as an employee benefit. Employees may also use third-party providers that bypass employers to offer these programs directly through mobile-app stores. In less than a decade, this nascent market has impressively achieved national scale, hundreds of thousands of employer partnerships, millions of users, and billions of dollars in transactions. Yet, notwithstanding and perhaps because of these early successes, these programs also have downsides that have been much less emphasized. In particular, although the gatekeeping role that employers may play when partnering with earned wage access programs has the potential to facilitate improved pricing and service terms in the fringe financial market, such a role also masks significant costs that are not fully disclosed to employees. Additionally, the earned wage access market creates detrimental regulatory blind spots and enables regulatory arbitrage by blurring the lines between once-distinct financial services: money-transmission services and loan services. Earned wage access programs have largely operated with minimal legal constraints because they have generally been characterized as money- transmission services, rather than loan services like payday loans. Building on the FinTech literature, by analogy, this Article argues that this blanket characterization of earned wage access programs is a mistake. Earned wage access programs have varying effects. In the absence of regulatory guardrails, some programs can perpetuate, and in some instances exacerbate, the very risks providers claim to eliminate when displacing short-term creditors like payday lenders. This Article proposes a federal-level regulatory framework based on lending laws that addresses some of these unmitigated risks through the imposition of consumer-protection requirements such as uniform price disclosure, ability-to-repay rules, optional amortization mechanics, mandatory credit reporting, and a right-to-rescind assignment. In doing so, this Article aims to facilitate growth of the earned wage access market’s functional improvements and prevent a mere shift to fringe FinTech, or “FringeTech,” services.

The Probative Synergy of Plus Factors in Price-Fixing Litigation

By: Christopher R. Leslie | April 18, 2021

Private plaintiffs alleging that defendants conspired to fix prices in violation of antitrust law must usually prove their claims through circumstantial evidence, generally in the form of “plus factors”—evidence indicating that the defendants’ parallel conduct was caused by collusion, not by independent decision-making. Supreme Court precedent requires fact finders to examine antitrust plaintiffs’ evidence holistically. With increasing frequency, however, federal courts in price-fixing cases improperly isolate each piece of circumstantial evidence presented by the plaintiff and then deprive it of all probative value because that single piece of evidence is insufficient, standing alone, to prove a price-fixing conspiracy. As a result, federal courts routinely grant summary judgment to price-fixing defendants even when plaintiffs have proffered more than enough evidence to prove their case. This Article develops a typology of plus factors. Using antitrust case law, empirical research, and economic theory, this Article categorizes dozens of plus factors and explains the probative value of individual plus factors, as well as their interrelationships with each other. Plus factors may fall into one of several categories, such as Cartel Susceptibility, Cartel Formation, Cartel Management, Cartel Enforcement, and Cartel Markers. The Article then introduces and develops the concept of probative synergy, which describes how the probative value of each individual plus factor increases as additional plus factors are introduced into the equation. Despite the longstanding rule that courts should not compartmentalize an antitrust plaintiff’s evidence of conspiracy, courts often inappropriately isolate individual plus factors and incorrectly suggest that if a plus factor does not by itself prove collusion, then it is not a plus factor at all. This approach miscomprehends the entire structure of factor tests in legal analysis. Using a series of case studies, the Article examines the causes and consequences of judges improperly compartmentalizing circumstantial evidence in price-fixing litigation. The Article concludes by showing that the failure to appreciate the probative synergy of plus factors has led courts to make it effectively impossible to prove collusion through circumstantial evidence in price-fixing cases.

MDL in the States

By: Zachary D. Clopton & D. Theodore Rave | April 18, 2021

Multidistrict litigation (MDL) is exploding. MDL makes up a large and increasing portion of the federal civil docket. It has been used in recent years to manage and resolve some of our largest controversies: opioids, NFL concussions, Volkswagen “clean” diesel, and many more. And, given its growing importance, MDL has come to dominate the academic literature on complex litigation. At its base, MDL is a tool to coordinate related cases across different courts in service of justice, efficiency, and fairness. These goals are not unique to the federal courts. State courts handle far more cases than federal courts, including the kinds of complex disputes that could benefit from coordination. Yet state MDL procedures are virtually absent from the scholarly literature. This Article offers a systematic study of state MDLs. Surveying the laws of every state, we find that about half the states have developed their own MDL-like procedural devices. What makes MDL distinctive is that it allows some official or institution to consolidate cases and to assign them to a handpicked judge. Therefore, we develop in this Article the first taxonomy of state MDL mechanisms based on which officials or institutions are given this substantial power. Along the way, we explore the other ways that states have tailored their MDL rules. We also provide case studies of three state MDL systems and report previously unpublished data on how state MDLs work. Building on these findings, this Article offers an institutional analysis of state MDL. We find that state MDLs distribute important cases to courts and judges in ways that depart dramatically from the default rules of judicial administration. These choices have important consequences for litigant control, judicial power, and both inter- and intrastate relations, which can be amplified in states where judges are elected. In these ways, different types of state MDLs—sometimes unwittingly—may tilt the usual balance in favor of plaintiffs or defendants, local actors or statewide ones, and voters or government officials.

Nw. U. L. Rᴇᴠ.

COVID-19 and Indian Country: A Legal Dispatch from the Navajo Nation

May 5, 2020

There has been much press coverage on the Navajo Nation’s struggle to contain the spread of COVID-19 on its lands. As of May 2, 2020, the Nation has 2,373 confirmed cases, and more than seventy deaths from the virus. These reports have noted the practical impediments the Nation faces in responding to the pandemic, including a high population of people […]