When Lenders can Legally Provide Loans with Effective Interest Rates Above 1,000 Percent, Is it Time for Congress to Consider a Federal Interest Cap on Consumer Loans?

 The question of whether interest rates should be regulated for the good of society has been debated by secular and religious authorities for millennia. Restrictions on the highest rate of interest allowed by law (if any) are generally set by the states. In the U.S., whether citizens are protected against unreasonably high interest rates is generally a matter for state legislatures to decide. In this article, the current laws of the 50 states and the District of Columbia are examined with regards to the issue of usury, as well as the challenges posed by federal law for states who wish to protect their citizens against unreasonably high interest rates. Special attention is paid to payday loan providers and the way that these have used loopholes in federal law to effectively undermine state interest cap regulations. Finally, the question of whether Congressional action is needed is addressed.

López, V. D. When Lenders can Legally Provide Loans with Effective Interest Rates Above 1,000 Percent, Is it Time for Congress to Consider a Federal Interest Cap on Consumer Loans? Notre Dame Journal of Legislation, Vol. 42, Issue 1 (2016). Available online at https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1646&context=jleg

Traffic Enforcement by Camera: Privacy and Due Process in the Age of Big Brother

States are increasingly turning to automated camera systems as a means of enforcing traffic regulations. The extent of the use of photo enforcement varies, as do the fines assessed for these types of violations.  More recently, some jurisdictions are also implementing photo enforcement of failure to make a full stop at a stop sign  and passing a school bus.  On its face, camera enforcement of traffic laws may seem a reasonable tool for police to help ensure public safety. But the technology is not without controversy. This article explores some of the legal and public policy considerations that underlie the growing use of the technology as both a means of traffic control and a significant source of new revenue for cash-strapped municipalities.

 López, V. D., Maccarrone, E. T. Traffic Enforcement by Camera: Privacy and Due Process in the Age of Big Brother Law Journal for Social Justice (Sandra Day O'Connor College of Law, Arizona State University), Vol 5. (Spring 2015). Available online at https://ljsj.files.wordpress.com/2016/02/4-traffic-enforcement-lopez-maccarrone.pdf

Medical Malpractice Limitations for New York Infants—Time for a Change of Time? (Maccarrone, Eugene T. and Lopez, Victor D.)

Abstract

Medical Malpractice Limitations for New York Infants -  

Time for a Change of Time?

By Eugene T. Maccarrone, J.D., CPA* and Victor D. López, J.D.

In response to the medical malpractice crisis of the 1970’s New York passed legal reforms that included Civil Practice Laws and Rules (CPLR) § 214-a allowing for a two and one-half year statute of limitations for instituting a claim for medical malpractice. This provision was part of New York’s effort to limit judgments for medical malpractice, and consequently curtail skyrocketing medical malpractice insurance premiums and costs, as well as allay fear of a decrease in willingness of medical practitioners to provide medical services.  As an accommodation to infants, the CPLR contains a tolling provision: where the statute of limitations is for medical malpractice claims, the entire period of disability is the tolling period, subject to a ten year tolling limit from the date of the accrual.  This appears to be a balancing of the perceived need for a short statute of limitations for bringing medical malpractice cases to help stem the malpractice crisis, and that of protecting infants, allowing them an extended time to bring claims.  In certain instances this balancing succeeds in allowing the infant to pursue a medical malpractice action, either because a responsible parent or guardian timely brings an action on behalf of an infant, or because the infant comes of age within the limitation time (including as tolled) and is able to bring the action on his or her own behalf; other times the action is precluded from going forward because no action is brought on behalf of the person still in infancy, and the statute as tolled nevertheless runs before the person reaches majority by virtue of the absolute ten year limitation. 

        Thus, the “balance” achieved in New York’s infancy tolling scheme for medical malpractice claims can always achieve its goal of limiting malpractice claims, but may or may not achieve its goal or protecting infants due to the ten year limit on tolling.  Analysis of medical malpractice statutes of limitations for infants in the other forty-nine states shows this to also be true in many other jurisdictions.  

Recent data show that since the 1970s family structures have substantially changed in ways that compromise the likelihood that infants will be protected during the malpractice claims tolling period.  Today many children are born to young single mothers, and it appears that the number and competency of parents traditionally relied upon to guard the welfare of their children is diminished.

If the availability of infants’ access to due process to pursue medical malpractice claims has substantially diminished, is it time to update the infancy medical malpractice tolling period to allow for a full tolling of the statute of limitations beyond infancy so that the ability of infants to pursue claims on their own will be enhanced?  This paper examines the issues that relate to this question.

 __________________

 Maccarrone, E. T., López, V. D. (2016). Medical Malpractice Limitations for New York Infants - Time for a Change of Time? 34 Buff. Envtl. L.J. 99 (2015). This paper is also available online at https://digitalcommons.law.buffalo.edu/bpilj/vol34/iss1/3/

Lopez on the Law: Illegal Immigration: Economic, Social and Ethical ...

Lopez on the Law: Illegal Immigration: Economic, Social and Ethical ...: My article, Illegal Immigration: Economic, Social and Ethical Implications, published in Vol. 29 of the North East Journal of Legal S...

Lopez on the Law: Leading the World in the Wrong Direction: Is It Ti...

Lopez on the Law: Leading the World in the Wrong Direction: Is It Ti...: In nearly all countries around the world, the loser in a civil law suit has to reimburse either all or at least a significant part of the re...

Leading the World in the Wrong Direction: Is It Time for the United States to Adopt the World Standard "Loser Pays" Rule in Civil Litigation?

In nearly all countries around the world, the loser in a civil law suit has to reimburse either all or at least a significant part of the reasonable legal expenses of the prevailing party. This is commonly referred to as the "loser pays" rule and helps to discourage litigation--especially litigation of questionable merit as plaintiffs are less likely to sue if they know they will have to pay both their own legal fees and that of the winner if they do not prevail. The United states also conformed to this rule which we commonly refer to as the "British Rule" --  which is itself a misnomer since it is not only the rule in Great Britain but also in nearly all world jurisdictions. By contrast, the "American Rule"  requires each party to pay their own legal expenses whether they win or lose in court.

The genesis of the rule can be traced to the American Colonies and was directly related to allowing lawyers to raise their legal fees without fear that higher fees discouraging litigation by individuals who might fear having to pay not only their own (now higher) legal fees, but also those of the other party if they did not prevail in court. Today the debate is largely framed on "access to justice" arguments by scholars and practitioners who support the status quo.  The argument is that if the loser must pay the reasonable legal fees fees of the winner (in whole of in part), then persons of limited means may be discouraged from suing out of fear that they could not afford to lose in court.

Reasonable people may differ on whether the "American Rule" benefits society or merely lawyers who unquestionably are the intended and primary beneficiaries of a rule invented by them and for their benefit in pre-revolutionary colonial days. A good friend and colleague at Hofstra University's Frank G. Zarb School of Business, Eugene T. Maccarrone, and I co-authored a paper on the subject that should be required reading for all informed Americans on an issue that not only helps to maintain our dubious status as the most litigious nation on the face of the earth while inflating the cost of litigation and contributing to the backlog of cased in civil courts that require a delay of up to five years before a civil case ever gets to trial. The article was published in Vol 32 of the North East Journal of Legal Studies (NEJLS) pp. 1-20 (Fall of 2014). This double-blind, peer reviewed journal was previously available by subscription only to law schools and universities but, thanks to the efforts of its Editor in Chief, Dr. Sharlene A. McEvoy of Fairfield University, an electronic copy of the journal  is now also available free of charge in electronic PDF format at this link: http://nealsb.info/j2014.html.

I urge you to read the article in its entirety and to forward it to anyone who may be interested as the issue is unlikely to be aired publicly outside of academic circles--and not even there.

Unauthorized Practice of Law in the U.S.: A Survey and Brief Analysis of the Law

The practice of law in the United States is very different from that in every other country, especially countries that are not former colonies of Great Britain and therefore follow the world-standard civil law system rather than the common law system that has its roots in England. As a result, the U.S. does not have a unified system of law and the law changes from jurisdiction to jurisdiction from state to state and even from federal circuit to federal circuit in significant ways. As a result, the practice of law is much more complicated in the U.S. than in most other countries, including Great Britain and her other former colonies. We have more lawyers and more litigation per capita than just about anywhere else on earth not because of the cultural or psychological reasons sometimes attributed by commentators, but rather because our system is designed on an adversarial model where lawyers (and only lawyers) are allowed to provide legal advice and representation  on both complex and routine matters that are often handled by (much less expensive) non-lawyer paraprofessionals in most other parts of the world. Indeed, representing another person or even giving legal advice is a misdemeanor or felony in most every state that can result in criminal prosecution and jail time. For a full discussion of the issue you can read an article I published in the North East Journal of Legal Studies in Fall 2011 edition (pages 60-84). The journal has recently been digitized and is now available free of charge online as well as in its original bound edition. The automated digitizing process introduced some minor glitches but the article is quite legible and I am grateful that it is now available beyond law libraries to the general public. You can access the volume in question at the following link (click on my name or the article's name from the link that follows and the appropriate volume will be downloaded in PDF format): http://nealsb.info/j2011.html