Loyola University Chicago, School of Law: LAW eCommons
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Whistling Past the Graveyard: Dodd-Frank Whistleblower Programs Dodge Bullets Fighting Financial Crime
Get PDFThe United States’ reaction to the 2008 Financial Crisis, which caused global ramifications, included the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act to address a lack of oversight and accountability in the financial industry. Among its provisions, Dodd-Frank provided incentives for whistleblowers to report misconduct and protections for those who do. Despite its success, Dodd-Frank’s whistleblower programs face internal and external challenges that threaten their success. This Article discusses the current climate surrounding corporate accountability and suggests additional protections for whistleblowers and whistleblower actions: allowing private lawsuits against the government under Dodd-Frank’s whistleblower provisions, similar to those allowed under the False Claims Act
From Fire Hose to Garden Hose: Section 13(3) of the Federal Reserve Act
No full textAt the height of the Great Financial Crisis, the Federal Reserve employed a previously unused section of the Federal Reserve Act, Section 13(3), to engage in a level of lending unparalleled in global financial history. Section 13(3) provided a firehose of liquidity for the US financial system, and The Federal Reserve used it to successfully fight the Great Financial Crisis. However, once the worst of the crisis had passed, Congress quickly acted to limit the Federal Reserve’s powers under Section 13(3) by passing Dodd-Frank and introducing the orderly liquidation authority. These limitations have reduced the Federal Reserve’s Section 13(3) power to that of a mere garden hose. One can only speculate whether the Great Financial Crisis would have continued and perhaps permanently crippled the US financial system had the Federal Reserve not been able to effectively utilize Section 13(3). The Federal Reserve’s now-limited Section 13(3) power will undoubtedly hamper its ability to respond to crises in the future
The Litigation Rollercoaster of BIPA: A Comment on the Protection of Individuals from Violations of Biometric Information Privacy
No full textAs technology progresses, businesses are enacting new programs that utilize emerging technology. Biometric data is an example of a tech capability that is becoming more popular for businesses. Companies can use an individual’s unique body data to monitor their employees, collect data, and enhance security and convenience for their customers. While this technology is impressive, it comes with privacy and security concerns. In 2008, Illinois enacted the Biometric Information Privacy Act (BIPA) to address these concerns. BIPA aims to protect individuals by setting strict guidelines for data collection by private entities. Individuals can file suit for violations of this statute, so long as they can show that they are an aggrieved party. Since June 1, 2017, over two hundred class actions have been filed in Illinois alleging claims under BIPA. In 2017, Illinois’s Second District Appellate Court heard an appeal from a ruling in Rosenbach v. Six Flags Entertainment Corp. and set forth an important new interpretation of BIPA. The appellate court found that the plaintiff was not an aggrieved party as they did not assert actual harm from the violation of BIPA. In 2018, Illinois’s First District Appellate Court disagreed with this holding, and in the case of Sekura v. Krishna Schaumburg Tan, Inc., held that a statutory violation of BIPA created an aggrieved party. Also in 2018, the Illinois Supreme Court agreed to hear the appeal of Rosenbach. On January 25, 2019, the Illinois Supreme Court handed down its decision in Rosenbach v. Six Flags Entertainment Corp. In a unanimous decision, the court held a person is “aggrieved” when there is a technical violation of BIPA; a showing of further harm is not necessary to bring a cause of action under the statute. This Comment will examine the Rosenbach decision and analyze its overall logic, application of Illinois’s statute and case law, and appreciation for the intent of the Illinois legislature. Last, this Comment will assess the impact of the Illinois Supreme Court’s decision on the future of biometric data collection and provide suggestions for future corporate compliance
Democratic Conditions
Get PDFAccording to many social scientists, democratic institutions are subject to much discontent and distrust today. Citizens sense the existence of a substantial disconnect between the rhetoric of representative democracy and its reality—what citizens believe their proper role to be and what the realities of our government and society allow them to be. More to the point, citizens of all stripes believe that those who “represent” them live lives quite different from their own, and that those representatives are not seriously interested in the perspectives, ideas, or well-being of most people. The nature and extent of this discontent raises serious questions about the future of representative democracy and the conditions necessary for it to flourish.
What, then, are the conditions of democracy? Among other things, citizens must share some sense of solidarity and common purpose. There must be a quality educational system committed to providing everyone—regardless of race or economic status—with an appropriate foundation for citizenship and personal fulfillment. There must be equal employment opportunity. Citizens must be well educated, and they must have access to credible news sources. Public officials must not be seen to cater to the rich or famous or seek short-term partisan advantage at the expense of long-term systemic values and stability. If a democratic society does not strive to satisfy these conditions, among others, representative democracy will either be brought down or so hollowed out as to become unrecognizable.
Rather than attempting the impossible feat of addressing all of the conditions necessary for the flourishing of a democratic society, this Essay first explores what we mean to say when we talk about the concept of representative or constitutional democracy and then considers three of the ways in which our current governmental and political system may frustrate the practice of constitutional democracy.
First, many Americans hold an idealized view of our democracy that prevents us from comprehending the full significance of the anti-democratic features of our constitutional system and hampers efforts to preserve and strengthen it. Second, our idealized view of American democracy prevents us from acknowledging that one important aspect of our constitutional tradition has been a preference for defining our political community in terms that are exclusionary, rather than inclusive. That, in turn, blinds us to the strong influence that this exclusionary preference continues to exert on our political life. Third, constitutional democracy requires nothing so much as a fair electoral system, but the ordinary political process often cannot ensure such fairness because politicians control the process and have little incentive either to draw maps that are fair or to undertake other necessary reforms. In many states, the people lack the power to assign these decisions to more disinterested agents, and, in recent years, the courts have tended to hold that such matters are unsuitable for judicial resolution. This Essay argues that these three obstacles must be overcome if representative democracy is to flourish
Deception Unknown: A Hard Look at Deceptive Trade Practices in the Video Game Industry
No full textThe video game industry is rapidly growing and reaching more people, adults and children alike, across the world. There have been only a handful of legal actions regarding deceptive trade practices by companies in the video game industry. There has been only one government ruling that has substantively reviewed a game over representations regarding its features - the United Kingdom\u27s Advertising Standards Authority (ASA) ruling on the game No Man\u27s Sky in November 2016. The dearth of legal action in this area and the shortfalls in the ASA investigation boil down to a fundamental lack of rules and guidance for determining materiality for products with many distinguishable features. This issue exists because the video game industry poses a novel situation in which games sell on a multitude of features that consumers each consider when deciding whether to purchase games. Accordingly, a game with many misleading representations about various features may not be material simply because no individual misrepresentation alone is important enough (not material) to a consumer\u27s overall purchasing decision, despite consumers decrying the misrepresentations. Therefore, this article proposes the creation of a materiality test that will enable plaintiffs and regulators to delve into individual misrepresented features of a game, sort them, and evaluate them together for materiality based on the overall net impression presented to consumers. Consumers look at the overall product and consider most features advertised to make their purchasing decisions - the law should follow a similar perspective for scrutinizing video games for deceptive practices and advertising
