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The article focuses on how artificial intelligence (AI), algorithms, and big data facilitate predation and mask discrimination in consumer finance. Topics include the existing legal landscape and its gaps in addressing algorithmic discrimination, the challenges of applying disparate impact analysis and unfair, deceptive, or abusive acts or practices (UDAAP) doctrines to algorithmic lending, and the need for new burden-shifting rules in tort law to address these issues.

The article focuses on the current practices with regard to aggregation in mass tort litigation, and mentions the doctrinal and normative concerns raised by the tactical use of Chapter 11 Bankruptcy Code in the Johnson & Johnson talc bankruptcy case of In re Purdue Pharma.

Introduction I. Current Events A. The Miller Bill 1. Appropriateness, Disclosure, and Assignee Liability 2. High-Cost Mortgages 3. Housing Counseling 4. Mortgage Servicing and Appraisal Activities B. The Financial Product [...]

ABSTRACT Bankruptcy law does not deal well with website promises to protect personal information. The legal treatment of privacy policies in bankruptcy currently turns on whether such policies are viewed [...]

The history of consumer goods and consumer credit markets presents an anomaly: market transactions for consumer goods and credit transactions evolved in tandem, from face-to-face and bespoke to standardized and widely distributed; the law governing these twin "product" markets has not. With consumer goods, the Uniform Commercial Code codifies implied warranties of merchantability and fitness for a particular purpose and the common law of tort provides strict liability for defective products. By contrast, with consumer finance contracts, borrowers enjoy scant common law protection, even though both consumer goods and consumer contracts may be dangerously defective "products." This Article reconsiders the traditional, all-or-nothing choice between tort and contract law to govern injury from different sorts of consumer products. It argues for a symmetric treatment of defective consumer goods and consumer financial products, by enlisting the tort-like doctrines in the common law of contract: the doctrines of unconscionability; good faith; and warranty. The terms of an adhesive financial contract can and should be interpreted in light of an implied warranty that the contract-as-product is as described. The defense of unconscionability should be strengthened to enable enhanced scrutiny of terms that fundamentally undermine contractual products. Its procedural prong should be satisfied by the adhesive nature of the terms, without additional proof of the circumstances of a consumer's surprise about the contents of the contract. The substantive prong should be informed by implied obligations of good faith and the implication that this contract-as-product is fit for ordinary and particular purposes--that it is faithful to the underlying transaction. Attempts by lenders to disclaim implied warranties or obligations of good faith should be viewed as prima facie unconscionable. In this way, the law governing consumer-contracts-as-products would serve the same function as the product liability and warranty laws that govern consumer-goods-as-products. Reconciliation of these laws would ensure that financial contracts are fit for their ordinary purposes as loans. [ABSTRACT FROM AUTHOR]

Law and economics scholars have long argued that efficiency is best served when a firm's capital structure is arranged as a single hierarchical value waterfall. In such a regime, claimants with seniority are made whole before the next-junior stakeholders receive anything. To implement this single waterfall approach, those scholars envision a property-based mechanism: a blanket lien on all of a firm's assets, and therefore all of its value (including as a goingconcern). This view informs a number of academic proposals for contractual bankruptcy and relative priority. Coincident with this scholarship, lawyers, scholars, and judges have largely accepted at face value the proposition that Article 9 of the Uniform Commercial Code implements the single waterfall. In other words, they assume that the law allows a secured lender to write contracts that enable it to capture all of a distressed company's going-concern value. This assumption has placed "senior" secured lenders firmly in the driver's seat when a firm falls into distress. So-called "senior" creditors claim priority in all of the value and control over all of the cash. They often push aggressively for a quick sale of the firm as a going concern, or liquidation of its assets, followed by distribution of all of the sale proceeds to the secured lender. In this Article, we illustrate that neither Article 9 nor the federal Bankruptcy Code, in fact, implements the single waterfall. Instead, both maintain a distinction between claims with priority based on a property interest in the firm's assets and claims to the residual value of the firm. Whenever the firm continues in operation, there will always be two value waterfalls--one tied to assets, and the other not. The second waterfall consists of unencumbered assets, as well as the going-concern and other value of the firm that Chapter 11 preserves. The key legal (and often forgotten) concept that maintains this distinction is "equitable tracing"--required by both Article 9 and Chapter 11. The terms "equitable principles" in Article 9 and "equities of the case" in Chapter 11 refer to equitable tracing principles that, in turn, inform secured creditors' "fair and equitable" baseline entitlement under a Chapter 11 plan. On the petition date, the value of the firm is therefore divided into two categories: value traceable to encumbered assets and other value. This relationship must then be managed over time, as the value of the firm changes. To accomplish this, Chapter 11 treats realization of value as a two-step process that we call "Equitable Realization." Equitable Realization uses tracing principles to allocate a firm's value between asset-based and firm-based claimants and to preserve that allocation over time. First, it fixes the relative positions of secured and unsecured claims when a bankruptcy petition is filed. Second, it delays the fixing of the value of secured claims until collateral is sold or a Chapter 11 plan is confirmed. The value of the secured creditor's collateral may increase, but the secured creditor's entitlement to any bankruptcy-created value extends only to "identifiable proceeds"--value that can be traced to assets encumbered on the petition date. As a result, increases in going-concern value of the company in this period, and other bankruptcy-created value more generally, are not within a lender's collateral package. Any going-concern value created or preserved by Chapter 11 is allocated to the bankruptcy estate for the benefit of all stakeholders--workers, retirees, customers, and more. We then address whether Article 9 and the Bankruptcy Code took the right approach by choosing Equitable Realization over the single waterfall. Many scholars, all the way back to Grant Gilmore, have questioned the wisdom of the single waterfall. Joining and expanding on those scholars' concerns, we explain the benefits of Equitable Realization and how the concept resonates with a large family of corporate and commercial law rules that guard against undercapitalization and judgment proofing. Equitable Realization not only implements the Bankruptcy Code's core goal of equitable treatment of creditors, but, by properly identifying firms' residual claimants, limits a firm's ability to externalize risk and increases the prospect of reorganizing troubled companies. The last task of this Article is to test our insights against the valueallocation proposals in the Final Report of the American Bankruptcy Institute Commission to Study the Reform of Chapter 11, as well as priority-related proposals in academic scholarship. Many of the Commission's proposals are consistent with Equitable Realization. But one proposal in particular, redemption option priority, allocates too much to secured creditors relative to our interpretation of current law. [ABSTRACT FROM AUTHOR]

The article establishes the legal limits of secured lending under nonbankruptcy law. Topics discussed include the practical limits of secured lending under nonbankruptcy law, the value of the secured creditor's entitlement that should be measured as of the petition date, and a number of applications of the principles articulated to a variety of bankruptcy topics.