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Journal of Will Consumers and the Economy Benefit from the CFPB? UNIVERSITY OF HOUSTON LAW CENTER CENTER FOR CONSUMER LAW VOLUME 15, NUMBER 3, SUMMER 2012 Journal of Consumer Commercial Law & OFFICIAL PUBLICATION OF THE CONSUMER & COMMERCIAL LAW SECTION OF THE STATE BAR OF TEXAS FINANCIAL SERVICES Will Consumers and the Economy Benefit from the CFPB? Professional Dishonesty: Do U.S. Law Schools that Report False or Misleading Employment Statistics Violate Consumer Protection Laws? Recent Developments Journal of Consumer & Commercial Law 1 Journal of Consumer & Commerical Law Volume 15, Number 3 Summer 2012 State Bar of Texas Consumer & Commercial Law Section University of Houston Law Center OFFICERS COUNCIL 2011-2012 Editorial Board CHAIRPERSON TERMS EXPIRE 2012 Student Editor-in-Chief Richard Tomlinson Jessica Lesser Lone Star Legal Aid Lesser & Jordan PLLC Nadia Barrow 1415 Fannin St, 3rd Floor 15443 Knoll Trail Dr. Ste. 100 Dallas, TX 75248 Houston, TX 77002-7632 214-855-9355 Chief Managing Editor 713-652-0077, ext. 1154 [email protected] Kelsey Stokes 713-652-3815 (Fax) [email protected] Rick McElvaney 100 Law Center Chief Articles Editor Houston, TX 77204-6060 JB Banzon CHAIR-ELECT 713-743-1236 Chad Baruch 713-743-2131 (Fax) [email protected] Chief Recent Developments Editor Law Office of Chad Baruch BreAnna Schwartz 3201 Main Street Michael O’Conner Rowlett, TX 75088 Law Offices of Dean Malone, P.C. 972-412-7192 900 Jackson St, Ste. 730 Associate Editors 972-412-4028 (Fax) Dallas, TX 75202 Ashley Spencer 214-670-9989 [email protected] 214-670-9904 (Fax) Cordelia Tullous [email protected] TREASURER Contributing Editors D. Esther Chavez TERMS EXPIRE 2013 Steve James Paige Cantrell Office of the Attorney General Attorney at Law Michaiah Chatman Consumer Protection Division 521 Texas Ave. Janese Golden-Dews P.O Box 12548 El Paso, TX 79901 Austin, TX 78711-2548 915-543-3234 Jennifer Park [email protected] 512-475-4628 Katelyn Richardson [email protected] Rebecca Knapik Farrah Usmani Davis & Wilkerson P.C. Demetrice Walker SECRETARY 1801 S. Mopac, Suite 300 Daphne Wang Austin, TX 78746 Melanie Phipps 512-482-0614 Kustoff & Phipps, LLP [email protected] Editor-in-Chief 4103 Parkdale St. San Antonio, TX 78229 Eliot Shavin Richard M. Alderman 4514 Cole Ave, Ste. 1015 Associate Dean for Academic Affairs 210-614-9444 Dallas, TX 75205 Dwight Olds Chair in Law 210-614-9464 (Fax) 214-522-2010 [email protected] 214-522-7944 (Fax) University of Houston Law Center [email protected] 713-743-2165 IMMEDIATE PAST-CHAIR 713-743-2131 (Fax) TERMS EXPIRE 2014 Andrew E. Sattler Mark Frenkel [email protected] John Dwyre & Associates Frenkel & Frenkel, L.L.P. 4207 Gardendale, Suite 104-B 12700 Park Central Drive, Ste. 1900 Dallas, TX 75251 San Antonio, Texas 78229 214-333-3333 (210) 736-1772 214-265-9360 (Fax) (210) 736-5299 (Fax) [email protected] [email protected] Chad Pinson Baker Botts, LLP EDITOR-IN-CHIEF OF THE 2001 Ross Ave, Ste. 600 JOURNAL OF CONSUMER Dallas, TX 75201-2980 & COMMERCIAL LAW 214-953-6621 214-661-4621(Fax) Professor Richard M. Alderman [email protected] Dwight Olds Chair in Law University of Houston Law Center Tina Torres 100 Law Center The Torres Law Firm, P.C. 110 Broadway St. Ste. 370 Houston, Texas 77204-6060 San Antonio, TX 78205 713-743-2165 210-737-2672 713-743-2131 (Fax) [email protected] [email protected] 2 Journal of Consumer & Commercial Law Journal of Consumer Commercial Law & VOLUME 15, NUMBER 3, SUMMER 2012 Articles Financial Services–Will Consumers and the Economy Benefit from the Consumer Financial Protection Bureau? A discussion from The Federalist Society’s 2011 National Lawyers Convention 86 Professional Dishonesty-Do U.S. Law Schools that Report False or Misleading Employment Statistics Violate Consumer Protection Laws? By Joel F. Murray 97 Consumer News Alert-Recent Decisions 109 The editors welcome unsolicited lead articles written by practicing attorney, judges, professors, or other qualified individuals. Manu- Recent Developments script length should be approximately 15-30 typed, double-spaced pages. Endnotes should conform to the Sixteenth Edition of Deceptive Trade Practices and Warranties 113 A Uniform System of Citation, published by the Harvard Law Review Association. Consumer Credit 114 Manuscripts should be forwarded to: Debt Collection 116 Richard M. Alderman University of Houston Law Center Arbitration 119 100 Law Center Houston, Texas 77204-6060 Landlord-Tenant 124 [email protected] Miscellaneous 125 The Last Word 130 Journal of Consumer & Commercial Law 85 Financial Services Will Consumers and the Economy Benefit from the Consumer Financial Protection Bureau? 86 Journal of Consumer & Commercial Law A discussion from The Federalist Society’s 2011 National Lawyers Convention. PARTICIPANTS: George Mason University School of Law. Professor Zywicki • Mr. David Berenbaum, Chief Program Officer, National is the Foundation Professor of Law and has his JD from the Community Reinvestment Coalition University of Virginia, with an MA in economics from Clemson • Mr. Leonard J. Kennedy, General Counsel, Consumer University. He clerked for my colleague Judge Jerry Smith on the Financial Protection Bureau U.S. Court of Appeals for the Fifth Circuit from 2003 to 2004. • Mr. Alex J. Pollock, Resident Fellow, American Enterprise He also served as Director of the Office of Policy Planning at the Institute Federal Trade Commission. Professor Zywicki is the author of • Prof. Todd J. Zywicki, Foundation Professor of Law, more than 70 articles in leading law reviews and peer-reviewed George Mason University School of Law economic journals. He has testified before Congress on issues of • Moderator: Hon. Timothy M. Tymkovich, U.S. Court of consumer bankruptcy law and consumer credit and is a frequent Appeals, Tenth Circuit commentator on legal issues. I read him frequently on the Volokh Conspiracy. JUDGE TYMKOVICH: Let’s go ahead and get started with Our next speaker is David Berenbaum, who is the Chief our luncheon program today. I’m really pleased to have a chance Program Officer for the National Community Reinvestment to participate in this year’s Federalist Society annual convention, Coalition and a supporter of the Consumer Financial Protection and I’m looking forward to next year’s 30th anniversary for the Bureau. The NCRC is an association of more than 600 Society. I remember attending an early convention at Yale Law community-based organizations that promote access to basic School in 1982, so it seems like only yesterday, but the Society banking services, including credit and savings, to create and sustain has certainly done well and thrived. And the reason it’s done affordable housing, job development, and vibrant communities. well and thrived is because of its ability to put the other programs Mr. Berenbaum has achieved a national reputation for his fair like we’ve seen yesterday, today, and tomorrow in general, and housing and consumer protection advocacy and his involvement in particular, panels like today’s which really go to one of the in civil rights issues. He’s appeared as an expert on numerous important policy-legal-political issues of the day, and explore it national news magazine shows and has testified before Congress from various points of view. on foreclosure and subprime mortgage issues. The Dodd-Frank Wall Street Reform Act created a new Our third speaker is another Consumer Financial entity in the administrative apparatus. The Consumer Financial Protection Bureau skeptic; I guess I would say -- Alex Pollock Protection Bureau is a new federal agency that regulates financial from the American Enterprise Institute. Mr. Pollock joined AEI products from a consumer protection prospective. Supporters in 2004 after 35 years in banking. He was President and Chief argue that the Bureau will provide consumers with much Executive Officer of the federal Home Loan Bank of Chicago needed protection against fraud and overly complicated financial from 1991 to 2004. He is the author of numerous articles on instruments. Critics, however, are concerned about the Agency’s financial systems and recently published a book on the financial vast powers and lack of accountability and fear that it may only cycle, Boom and Bust. increase the cost of credit and limit financial options available to Lastly, we have the General Counsel of the ordinary people. As structured, it will be highly independent, Implementation team for the new Consumer Financial with a single director and a new guaranteed funding mechanism. Protection Bureau, Leonard “Len” Kennedy. Prior to coming Today, we’re going to explore these various aspects of the new into government, Mr. Kennedy served as General Counsel for Bureau both from a positive and from a critical perspective. As Sprint Nextel Corporation and handled $35-billion merger. He’s we sit here today, there’s not a confirmed director of the Bureau; a graduate of the Cornell Law School. there is a nominee pending, and I hope that we can talk about the Our last speaker, Tim Muris, the former Chair of the politics of that somewhat. FTC, was unable to participate today; he fell ill. We have a distinguished panel of reporters and With that, we’re going to start the program with brief researchers today to discuss the advantages and disadvantages remarks from each of our speakers. We will then have a bit of of the new agency and to give their thoughts about how it can a roundtable. And finally, I will open up to the audience for approach its new task so as to avoid the regulatory pitfalls that questions. plague many agencies. Our first speaker is Todd Zywicki of Our first speaker, Professor Zywicki. Journal of Consumer & Commercial Law 87 PROFESSOR ZYWICKI: Thank you, Judge. We’re going to a two-thirds vote of the Financial Stability Oversight Commission, talk about the CFPB and, to some extent, whether it’s good for and only if it would seriously threaten the safety and soundness of consumers.
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