Scott Sivley

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Warning: This Note does not deal with a particularly new nor particularly interesting subject. If sellers of goods and information were this forthcoming when making claims about their products, this Note would not be necessary. Unfortunately, there is a colossal tug of war, as illustrated by the Occupy Movement in the fall of 2011 and as campaign financing during the 2012 American election cycle has and will continue showing us, emerging in the domestic and global marketplace over who should ultimately be responsible for protecting consumers from irresponsible or false commercial speech. Should we continue down the road of survival of the fittest and leave it up to consumers to wade through the muck of puffery and illusion in an information age when new technologies and ideas pop up virtually overnight, or do governments and those who claim to look out for everyone’s best interest have a responsibility to do their job and regulate to provide for greater transparency? In fact, “consumers” is an erroneous description in this debate because it, in a sense, dehumanizes who consumers are, consumers are people with inalienable rights not some legal construct such as a corporation whose basic governing rules can wax and wane based on the whims of a state and a court. The legal profession has a role to play in this tug of war, but unfortunately more and more of those in the judiciary bring a clouded view of what the law should be and blindly discredit the idea that entities whose sole purpose is to make money will generally do whatever they can to make money. The differences in the law of the United States and the European Union are admittedly subtle in this area, but the opinions and the authoritative articulations of the law have a profound, divergent effect on its consumers (a.k.a. citizens). The United States is a promise promulgated on its commitment to all of its peoples with business freedom serving its people not the other way around. Our laws should reflect that promise.

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