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Consumer law and policy: text and materials on regulating consumer markets

Author: Ramsay, Iain Publisher: Hart Publishing, 2007.Edition: 2nd ed.Language: EnglishDescription: 788 p. : Ill. ; 24 cm.ISBN: 9781841135052Type of document: BookBibliography/Index: Includes bibliographical references and index
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Item type Current location Collection Call number Status Date due Barcode Item holds
Book Europe Campus
Main Collection
Print K700.63 .U5 R36 2007
(Browse shelf)
001228695
Available 001228695
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Includes bibliographical references and index

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Consumer Law and Policy Text and Materials on Regulating Consumer Markets Table of Contents Preface Acknowledgements Table of Cases Table of Statutes Table of Secondary Legislation vii xvii xxv xxxv 1 SETTING THE CONTEXT 1. The development of consumer law and policy 2. The new regulatory state and consumer law 2.1 New Labour and the rejuvenation of consumer policy 3. Consumer influence in contemporary society: getting more from the market or social transformation? 3.1 Interest group theories and public choice 3.2 Consumerism as bottom up or top down? 4. Markets, consumption and ideology 4.1 Consumer law, consumerism and neo-liberalism 5. The regional and global dimension 5.1 European consumer law and policy 6. Globalisation and consumer law 1 1 7 9 17 18 25 31 38 39 39 49 2 RATIONALES FOR CONSUMER LAW AND POLICY 1. Neo-classical rationales: market failure 1.1 Assumptions of market failure analysis 2. Information failures in consumer markets 2.1 Market structure and information failures 3. The new policy paradigm: behavioural economics 3.1 Hyperbolic discounting 3.2 Over-optimism 3.3 Framing effects 3.4 Availability and anchoring 3.5 Information overload 3.6 Fairness 3.7 Emotions and the economy 3.8 Behavioural economics and regulators 3.9 Implications of behavioural economics for consumer law and policy 4. Competition, information failures, bundling and switching costs 53 55 61 64 69 71 72 73 73 74 75 75 76 76 76 85 5. Equity 5.1 Assuring consumer access to markets at reasonable prices: social exclusion and consumer markets 5.2 Consumer entitlement: a rights approach 5.3 Community values 6. Paternalism 7. Sustainable consumption: ethical and fair trade 88 92 97 99 100 101 3 FRAMEWORKS AND FORMS OF REGULATION OF CONSUMER MARKETS 1. The new regulation 2. A decentered approach? 2.1 Self-regulation 2.2 The consumer as a regulatory subject 2.3 Transnational networks of consumer regulation 3. Techniques of regulation 3.1 Information remedies 3.2 Reducing enforcement costs 3.3 Changing default rules 3.4 Encouraging pre-commitment strategies 3.5 Standards 3.6 Individualised screening: licensing 3.7 Price controls 4. Competition policy, economic regulation and consumer policy 5. Adjudication and the regulatory role of courts 6. Public-interest groups and regulatory programmes Case Study: The search for smart regulation: the internet and consumers 107 107 113 115 116 117 119 119 124 125 126 126 127 127 128 129 133 136 4 CASE STUDY: STANDARD FORM CONSUMER CONTRACTS AND UNFAIR TERMS 1 Rationales for regulation 1.1 Inequality of bargaining power 1.2 Neo-classical economic analysis and standard form contracts 1.3 Behavioural economics and standard form contracts 1.4 Understanding the role of standard form contracts in corporate relationships with consumers 2. Regulatory techniques 2.1 Judicial control 2.2 Administrative regulation of unfair terms 3. The role of the Office of Fair Trading in policing unfair terms under the Unfair Terms in Consumer Contracts Regulations 3.1 Exclusion and limitation of liability clauses 3.2 Penalty clauses 3.3 Supplier rights to vary terms, cancel performance and exercise discretion in performance 157 157 157 160 162 164 166 166 191 194 197 199 200 3.4 Entire agreement clauses (Schedule 2(1)(n)) 3.5 Transferring inappropriate risks to consumers 3.6 Plain and intelligible language 3.7 Case study: Gateway Computers 4. Assessing the performance of the OFT 4.1 The Office of Fair Trading as bargaining agent for consumers 202 202 203 204 208 211 5 CASE STUDY: CONSUMER REDRESS AND ACCESS TO JUSTICE 1. The spectrum of consumer redress. 1.1 The role of intermediaries in consumer dispute handling in the UK 2. Small claims procedures 2.1 The experience of the English small claims procedure as a consumer court 3. Trade-association arbitration and conciliation 4. Ombudsmen: the Financial Ombudsman Service 4.1 Ombudsmen and norm development 5. Protecting diffuse interests: class and public-interest actions 5.1 Canadian experience of consumer class actions 6. Cross border disputes 215 218 222 227 232 234 239 245 254 261 264 6 THE REGULATION OF DECEPTIVE AND UNFAIR COMMERCIAL PRACTICES 1. Introduction: the search for market fairness 1.1 Market failure and unfair trade practices 1.2 Equity, fairness and community values 1.3 Institutional framework of trade practices regulation 2. The EU Unfair Commercial Practices Directive and its implementation 2.1 The Rationale for the Directive 2.2 Maximal harmonisation and the Unfair Commercial Practices Directive 3. Implementation 3.1 The scope of the Directive 4. The architecture of the Directive 4.1 The role of the general clause 4.2 The standard of protection: the average consumer under the Unfair Commercial Practices Directive 4.3 False and misleading commercial practices 4.4 What is at stake in the average consumer test? A comparative note 4.5 Disclaimers, 'car clocking' and the UCPD 4.6 The nature of a statement: promise as to the future or statement of existing fact? 4.7 Misleading pricing: the search for market fairness 4.8 Immoveable property 5. Aggressive commercial practices 6. Prohibited practices: Annex 1 6.1 Pyramids and ponzis 267 267 269 270 273 275 275 279 281 282 283 283 285 290 300 304 310 313 321 321 326 327 6.2 Bait and switch 6.3 Unsolicited goods and inertia selling 7. 'Cooling-off' periods in consumer transactions 7.1 Doorstep selling 7.2 Distance selling and cooling-off 7.3 Timeshares and cooling-off 7.4 Cooling-off periods and stimulating competitive markets: extended warranties 7.5 Reflections on cooling-off periods 329 330 330 331 339 343 344 345 IMPLEMENTATION AND ENFORCEMENT OF UNFAIR COMMERCIAL PRACTICES LAW 347 1. The structure of public enforcement of commercial practices law in the UK 348 1.1 The role of the courts 2. Models of enforcement 3. Methods of public enforcement 3.1 The old workhorse: the regulatory offence 4. Administrative remedies 4.1 Injunctions 4.2 Administrative penalties 4.3 The enforceable undertaking 4.4 Adverse publicity: naming and shaming 4.5 Public power to obtain compensation and redress 4.6 Restorative justice orders 5. The balance of public and private enforcement of unfair trading law 6. The role of self-regulatory organisations in enforcing unfair commercial practices law 7. Cross border enforcement of commercial practices law 352 353 355 356 382 382 383 383 386 387 387 388 391 392 DECEPTIVE AND UNFAIR ADVERTISING 1. Objectives of advertising regulation 2. Private law remedies for misleading advertising 2.1 Puffing and its limits 2.2 Theories of recovery for manufacturers' advertising claims 3. Alternative remedies for misleading advertising 3.1 Advertising claim substantiation 3.2 Corrective advertising 4. Unfair advertising 4.1 Advertising to children 4.2 Race discrimination in advertising: advertising as exclusion 5. Commercial speech and advertising 6. Mandated self-regulation and co-regulation: the Advertising Standards Authority 395 398 400 400 403 417 417 423 423 425 430 431 437 9 THE RISE, PAUSE AND RISE OF AN AGENCY: THE OFFICE OF FAIR TRADING 1. Legislative background and rationale for the creation of the Office of Fair Trading 1.1 1973-2005 Crusading, drifting and resurgence 1.2 Competition and consumer policy 2. Identifying priorities, measuring success: technocracy and politics 3. Reform and change in markets 3.1 The failure of rule-making: Part II of the Fair Trading Act 3.2 Trade association codes of practice: plus ça change? 3.3 Regulation through market studies and supercomplaints 3.4 Case study: rulemaking and credit card default charges 4. Regulation of individual trade practices 4.1 The failure of assurances of compliance against persistently unfair traders: Part III of the Fair Trading Act 1973 4.2 Administrative enforcement: Part 8 Enterprise Act 4.3 Enforcement of misleading advertising: co-regulation with the ASA 4.4 Consumer credit licensing 4.5 Test cases 4.6 Publicity as an enforcement weapon 5. Communication as regulation: use of the media and consumer education 6. Regional and international dimension of OFT regulation 7. Continuity and change in the role of the Office of Fair Trading 453 454 456 459 461 464 465 466 473 485 485 485 486 497 499 507 508 510 511 512 10 REGULATION OF CONSUMER CREDIT MARKETS 1. Consumer credit markets 1.1. The costs and benefits of consumer credit 2. Rationales for regulation of consumer credit markets 3. The Consumer Credit Act 1974 3.1 Institutional structure of credit regulation 4. Controlling supplier access to the consumer credit market: licensing 5. Information remedies 5.1 Required disclosures: truth in lending 5.2 Post-contractual information 5.3 Formalities and the sanction of nullity 5.4 Early settlement and promoting competition 5.5 Reducing creditor costs: credit information, credit scoring and credit bureaux 6. Responsibilising the consumer: financial literacy 7. Responsible lending 8. Regulating contract terms 8.1 Cooling-off periods in credit sales 8.2 The price of credit: usury 8.3 Judicial control of credit terms: unfair credit relationships 9. Harnessing market gate-keepers: connected-lender's liability 10. Dispute settlement and the role of the Financial Ombudsman Service 11. Over-indebtedness and regulation of credit default 515 516 524 526 530 531 533 533 533 540 541 545 546 550 552 555 555 555 559 569 577 578 11.1 Creditors' remedies and consumer protection 11.2 The regulation of default 11.3 Promoting settlement and providing debtor access to justice: the role of intermediaries 12. Restructuring and writing down consumer debt 12.1 Individual voluntary arrangements 12.2 Administration orders 12.3 Bankruptcy as a consumer remedy 13. Institutional alternatives and access to affordable credit 13.1 Community Reinvestment Act 580 582 589 591 591 593 593 599 603 11 QUALITY REGULATION AND POST-PURCHASE QUALITY PROBLEMS 1. Sources of quality problems: an economic perspective 2. Consumer product warranties 3. Private liability law 3.1 Correspondence with description 3.2 Satisfactory quality and fitness for particular purpose 3.3 Conceptualising the implied term of satisfactory quality 3.4 Judicial standards in relation to high value consumer productsautomobiles and yachts 3.5 The structure of consumer remedies: designed for adjudication or bargaining? 3.6 Rejection rights outside the Sale of Goods Act 3.7 Manufacturers' legal liability to consumers for economic loss 3.8 Reducing consumer costs in quality disputes? Lemon laws 4. The regulation of product market quality: the case of used cars 5. Services 5.1 Civil liability and service quality 5.2 Service performance and consumer bargaining power 5.3 Consumer damages 6. Car servicing 7. Financial services regulation as a model of quality regulation? 8. The professions and the market 605 605 610 615 617 620 629 631 645 650 652 657 661 665 665 669 673 676 680 680 12 PRODUCT SAFETY REGULATION 1. Rationales and objectives: defining an acceptable social risk 2. The development of consumer product safety regulation in the United Kingdom 2.1 Product safety standards 3. The EU 'New Approach' to standards and consumer product safety standardisation 3.1 Representation of consumer interests on standardisation bodies 4. Post marketing surveillance and the enforcement of product safety standards 5. Private liability law: product liability 5.1 Liability under the Consumer Protection Act 1987 689 691 700 702 705 711 717 721 722

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