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This Article explores how fintech has disrupted the traditional rent-to-own (RTO) industry, giving rise to new, virtual RTO agreements (VirTOs). These VirTOs have enabled the RTO industry to expand into the service industry and to markets for products not traditionally associated with rentals, such as vehicle repairs, pet ownership, and medical devices. This Article analyzes this development.

RTO agreements purport to rent products to a consumer until the conclusion of a set number of renewable rental payments, at which point ownership transfers. The fundamental characteristic of these agreements—and the reason why they are not regulated as loans—is that the consumer is able to terminate the rental agreement without penalty at any time by returning the merchandise to the rental company. RTO agreements are an extremely high-cost form of financing that were traditionally offered through brick-and-mortar stores, like Aaron’s or Rent-A-Center, to low-income, subprime consumers who could not obtain traditional credit. The introduction of fintech, however, has shifted the RTO business model from traditional one-stop-shop, brick-and-mortar stores to partnerships between VirTO companies and retailers. As this Article explains, these new VirTOs have different attributes from traditional RTO agreements. In a VirTO, a third-party VirTO provider purchases the desired product from a brick-and-mortar retailer and then rents the product back to the consumer. The entire transaction between the retailer and VirTO company occurs online and unbeknownst to the consumer. This business model has allowed VirTOs to emerge in a variety of specialized markets and services. Not only are these agreements a high-cost method to ownership, but consumers often do not understand the agreements.

Although VirTOs purport to be rentals, it is nearly impossible for a consumer to return a rental financed with a VirTO. Because the items rented with VirTOs are not practical to return, this Article argues that VirTOs are not, in fact, RTO agreements. Instead, VirTOs are a sophisticated form of disguised credit. This Article demonstrates that the VirTO industry is a legal fiction designed to avoid consumer protection statutes governing credit. Accordingly, courts should treat VirTOs as credit subject to state usury and federal consumer protection laws. This Article also proposes a series of policy recommendations to regulate VirTOs and to ban such agreements for services and nonsensical products, like vehicle repairs and pets. The policy solutions proposed in this Article provide a model for potential strategies to protect low-income and subprime consumers from the most extreme abuses as fringe financing industries grapple with the introduction of fintech.

New Tech, Old Problem: The Rise of Virtual Rent-to-Own Agreements

Anti-transgender legislation is sweeping the nation with devastating consequences for trans lives. Each piece of legislation is generally challenged in isolation and conceptualized under the Equal Protection Clause as involving either impermissible sex classifications or classifications against transgender people. These frames are accurate but insufficient to fully capture the scope and harm of the laws on trans lives. These all-encompassing laws must be unequivocally identified for what they are: a product of animus violating the Equal Protection Clause. Through its detailed analysis of these laws and their legislative history, this Article demonstrates that animus is evident from the laws’ overbreadth, underinclusiveness, fabricated or pretextual government interests, and direct legislative statements of animus. As this Article contends as its central thesis, framing anti-trans legislation as rooted in animus toward transgender people may help lead to greater—and more efficient—litigation success and will also avoid the pitfalls of Equal Protection suspect classification doctrine that essentializes and forces identities into rigid, exclusionary boxes. Drawing from principles of restorative, transformative, and transitional justice, the animus framing also has the potential, perhaps counterintuitively, to lead to greater social healing of the fissures being created by the culture war aimed at transgender people.

Trans Animus

In 2021, in Cedar Point Nursery v. Hassid, the United States Supreme Court reshaped the importance of exclusion rights by deeming such rights to be the critical aspect of private property ownership. Consequently, the Court determined that any infringement upon this core exclusion right must automatically be a taking under the Fifth Amendment. This Note examines the development of judicial doctrine surrounding the Takings Clause and the basis for placing a significant value on the right to exclude. The Note then analyzes the Cedar Point decision and how the Court relied on precedent from the early twentieth century in Portsmouth Harbor Land &amp; Hotel Co. v. United States (Portsmouth II). In Cedar Point, the Court ignored its prior holding in Portsmouth II, which focused on the government’s intent. Instead, the majority used Portsmouth II as justification for the holding that invasions and infringements on the right to exclude were the core factors in determining the existence of a per se taking. This Note argues that the reliance on prior cases for justification in expanding the per se takings category was misplaced, resulting in harmful limitations on necessary governmental regulation.

Cedar Point Nursery: Taking an Unprecedented Approach to the Right to Exclude

Governance matters. The governance of our business and political institutions impacts all aspects of our lives. Our education, relationships, wealth, safety, dignity, health, and happiness are all affected by business and political governance decisions. Increasingly, corporate governance and political governance are evolving and intersecting, as corporations engage in some of the most contentious and important social challenges of our time with their voice, capital, and actions.

This Article provides one of the first comprehensive examinations of this new convergence of corporate and political governance and its wide-ranging effects on law, politics, business, and society. It begins by contextualizing the changing corporate political governance landscape. It investigates how new corporate social activism, the growth in ESG investments, the reemergence of retail investors, and a changing political calculus for businesses have all fostered this evolving landscape. Next, it discusses practical and legal fault lines in this landscape. In particular, it highlights how these tensions complicate larger debates about shareholders and stakeholders, meanings and metrics in management, as well as the limitations of private and public power. Finally, moving from causes and complications to consequences and correctives, this Article identifies implications of the new corporate political governance dynamic and recommends pragmatic next steps for scholars, executives, and policymakers. Specifically, it proposes a new corporate overstory for analyzing corporate sociopolitical engagements, offers new guiding principles to help firms focus their social efforts, and recommends workable models for policymakers engaging in business regulation and investment management. Ultimately, this Article aims to serve as an original, early roadmap and working compass for understanding and navigating the changing corporate political governance landscape.

The New Corporate Political Governance

The First Amendment’s application to the internet is in flux. Ambitious state legislation threatens to undermine social media platforms by splintering them state by state or by forcing them to adopt individual states’ regulatory preferences on a nationwide basis. To mitigate these risks, First Amendment doctrine needs an anti-balkanization principle—a presumption against skewing interstate speech channels along state lines. The Supreme Court has rejected patchwork regulatory regimes that imperiled interstate channels like newspapers, film distributors, and political conventions. But in these cases, the Court never adopted a consistent doctrinal approach to assessing the balkanization dangers that state-by-state regulation posed. And in other areas, patchwork regulation continues to subvert interstate channels.
The anti-balkanization principle offers a solution. It would call for explicit consideration in First Amendment analysis of the key national function served by interstate channels. This means courts would assess whether patchwork regulation would distort national discourse by fatally fracturing interstate channels or by forcing them to adopt an outlier state’s approach nationwide. Accounting for these threats would add a structural backstop to First Amendment doctrine, ensuring that otherwise valid state regulatory interests are measured against conflicting national interests. It would better align the First Amendment with the Constitution’s nation-building design and ends. And it could help resolve a major, looming balkanization hazard: state laws requiring social media platforms to carry content they would rather remove.

Speech Balkanization

Tattoos are unique amongst copyrightable forms of expression because, by virtue of being drawn onto human canvases, they necessarily require that the artist grant an implied license to the tattooed individual. By this license, a tattoo is integrated with the tattooed individual’s overall likeness, with all the associated rights that follow. In recent years, a trio of federal district court decisions have attempted to demarcate the metes and bounds of the implied license for tattoos, specifically in the realm of video games. On March 26, 2020, in Solid Oak Sketches, LLC v. 2K Games, Inc., the U.S. District Court for the Southern District of New York held that the reproduction of the defendant’s tattoos in a video game was de minimis, covered by an implied license, and protected by fair use as a matter of law. The litigation sparked national interest and gave rise to subsequent lawsuits on the same issue in other jurisdictions. On September 26, 2020, in Alexander v. Take-Two Interactive Software, Inc., the District Court for the Southern District of Illinois held that the reproduction of athletes’ tattoos in video games was not necessarily protected by implied license or fair use; rather, the question was a matter of fact for juries to consider at trial. On September 20, 2022, in Hayden v. 2K Games, Inc., the District Court for the Northern District of Ohio came to the same conclusion as Alexander. Although this issue has not yet reached the appellate level, the disagreement necessitates clearer guidance in the law. This Note argues that the Southern District of New York’s approach should be adopted by the federal courts because it comports with the concept of bodily autonomy and most efficiently accomplishes the policy goals of copyright.

Before the Ink Is Dry: Bodily Autonomy and Tattoo Copyright in Video Games

U.S. Immigration and Customs Enforcement (ICE), the federal agency that manages the world’s largest civil immigration detention system, transfers hundreds of detained noncitizens to different detention centers every day at its sole discretion and for any reason, typically without advising the noncitizen’s counsel or family. This unchecked transfer power, in tandem with ICE’s power to begin deportation proceedings wherever and whenever it chooses, creates a ripe environment for forum shopping. This Note explores how the current system allows ICE to engage in forum shopping—by transferring noncitizens to regions of the country where their claims have a lower probability of success—to the great detriment of their cases and often their lives. This Note argues that the U.S. Congress should enact venue-protective legislation to safeguard noncitizens’ due process rights and prevent ICE from gaining an unfair advantage in deportation cases.

Shopping on Thin Ice: Venue Limits on ICE Detention Transfers to Prevent Forum Shopping

The Supreme Court dismantled the right to an abortion in Dobbs v. Jackson Women’s Health Organization by overturning Roe v. Wade. The holding opened the floodgates for state legislatures to pass total and near-total bans on abortion services across the United States. Included among the abortion bans passed are aiding and abetting laws that threaten to punish physicians criminally and civilly for advising pregnant individuals about abortion services. Aiding and abetting laws implicate the First Amendment because they restrict physicians from providing necessary counsel to patients about available healthcare options, both in-state and out-of-state. Denying this necessary counsel thus negatively impacts doctor-patient relationships. Before Dobbs, anti-abortion advocates utilized the First Amendment to slowly chip away at a woman’s access to abortion services. Nonetheless, these pre-Dobbs practices also provide physicians with a constitutional framework to challenge aiding and abetting laws implicating their speech rights. This Note argues the Supreme Court’s 2018 holding in National Institute of Family and Life Advocates v. Becerra requires federal courts to strike down abortion aiding and abetting laws as unconstitutional. In doing so, courts will protect the sanctity of the doctor-patient relationship and the right for physicians to be free of improper government influence when providing counsel about vital healthcare options.

Criminalizing the Doctor-Patient Relationship: How Abortion Aiding and Abetting Laws Violate a Physician’s First Amendment Rights

Front Matter

American democracy is marked by an unwavering deployment of racialized economic modalities of fines, fees, and debt aimed at scaffolding hierarchies of white power and prescribing Black people as commodities, not human beings. Over the last two decades, an expanding praxis in the economic justice field has emerged, opposing and disrupting racialized economic logics within a national anti-fine, fee and cost movement. From scholarly discourse to legal interventions and reforms at city- and county-levels, the movement has sought to target interlocking material and ideological forces that comprise racial capitalist geographies across many criminal and civil systems. Despite this significant work, however, the distinctly racialized dispossessive and extractive economic realities of fines and fees regimes in other public state systems, namely K–12 public education, have escaped interrogation and advocacy. This Article serves to fill that gap at three levels—theoretical, analytic, and prescriptive—presenting an incisive critique of public education absent from the existing legal literature and highlighting explicating existing remedies available to civil rights education attorneys to protect Black students and families. In advancing racial capitalism as its constructive feature, this Article does not simply rely on a theoretical approach. Instead, it employs critical theory and social science methodologies, drawing on an original dataset of first-hand accounts of clients and analyses of more than seven hundred different published and publicly-available individual public school, charter school, cyber charter school, and district handbooks and codes of conduct. The data illuminates how public education functions across key dynamics of racial capitalism—accumulation, dispossession, debt, punishment, and containment. This work thus contributes richly to legal scholarship and legal practice by attending to an undertheorized yet formative area of critical theory, and exposing the operation of racial capitalism through a familiarly racially evasive modality that fundamentally undermines Black students’ access to their education.

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