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Harvard Law Review Volume 131 · April 2018 · Number 6 - RECENT LEGISLATION, ORDINANCE & REGULATION


Harvard Law Review Volume 131 · April 2018 · Number 6 - RECENT LEGISLATION, ORDINANCE & REGULATION
Illinois Repeals Anti-Abortion Trigger Law. Seattle Bans the Use of Criminal History in Rental Decisions. CFPB’s Final Payday Lending Rule Deems It an “Unfair” and “Abusive” Practice to Make Payday Loans Without Determining Borrower Ability to Repay.

RECENT LEGISLATION

Illinois Repeals Anti-Abortion Trigger Law. 

In 1975, the Illinois state legislature enacted the Illinois Abortion Act, which outlined a state policy of prohibiting abortion unless necessary to save a woman’s life; according to the Act, this policy was "impermissible only because of the decisions of the United States Supreme Court,” and if those decisions were ever reversed or modified, the abortion prohibition was to be reinstated. Recently, Illinois Governor Bruce Rauner signed into law Public Act 100-0538, which strikes this language from the Illinois Compiled Statutes. While the decision to sign the bill was not without controversy, striking Illinois’s anti-abortion "trigger law” better comports with the rule of law and fair governance. 

 

RECENT ORDINANCE

Seattle Bans the Use of Criminal History in Rental Decisions. 

 In August 2017, Seattle adopted an ordinance that prevents housing providers from considering nearly all criminal history when making rental decisions, such as deciding to whom to lease. The only exception is for the consideration of sex offenses, committed as an adult, for which the individual is on a registry. In those cases, the landlord may take an adverse action – such as refusing to lease to the individual – if there is a legitimate business reason for taking such action. While Seattle’s ordinance does much to help ex-offenders obtain housing, its exception for sex offenders is inconsistent with its stated purposes of reducing discrimination, reducing recidivism, and promoting reintegration.    

 

RECENT REGULATION

CFPB’s Final Payday Lending Rule Deems It an "Unfair” and "Abusive” Practice to Make Payday Loans Without Determining Borrower Ability to Repay. 

In Dodd-Frank, Congress gave the CFPB authority to promulgate rules preventing "unfair, deceptive, or abusive” acts or practices. That statutory language mirrored similar past grants of regulatory authority to other agencies, which these agencies have typically used to target harmful practices that a rational consumer couldn’t or wouldn’t avoid — like harassing consumers to collect debts or sneaking predatory terms into fine print. In its payday lending rule, the CFPB applied behavioral economics to adopt an interpretation of "unfair” that includes offering products that consumers will irrationally choose to use even though they are harmful — as when consumers take out loans they can’t afford. Such behavioral economics-informed statutory interpretation may be a potent formula for agencies looking to expand their regulatory authority. 


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