Escolar Documentos
Profissional Documentos
Cultura Documentos
∗
George Mason University Foundation Professor of Law; Senior Scholar,
Mercatus Center at George Mason University School of Law; Editor, Supreme
Court Economic Review. I would like to thank the members of the American
Association of Responsible Auto Lenders (AARAL) for their generosity in
spending time talking to me and providing basic information about the
industry. All funding for this project was provided by the Mercatus Center.
425
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1
Many states have specific laws that exempt certain types of loans, such as
pawnshops, from their general usury ceilings, thereby recognizing the
impossibility of lending at the permitted rates.
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A. Term Re-pricing
2
Term re-pricing is sometimes referred to as “evasion,” as they are
seemingly an effort to “evade” the distorting effects of usury restrictions on
credit supply by adjusting unregulated price or other terms of the bargain. See
Michael Staten, The Impact of Credit Price and Term Regulations on Credit
Supply, UCC 08-98 (Harv. U. Joint Center for Housing Studies, Cambridge,
MA), Feb. 2008.
3
See Todd J. Zywicki, The Economics of Credit Cards, 3 CHAP. L. REV.
79, 152 (2000).
4
See DAVID CAPLOVITZ, THE POOR PAY MORE (1963).
5
See A. Charlene Sullivan, Evidence of the Effect of Restrictive Loan Rate
Ceilings on Prices of Consumer Financial Services (Credit Research Ctr.,
Working Paper No. 36, 1980).
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6
See An Introduction to the FDIC’s Small-Dollar Loan Pilot Program, 2
FDIC Q. 23 (2008).
7
Richard L. Peterson & Gregory A. Falls, Impact of a Ten Percent Usury
Ceiling: Empirical Evidence (Credit Research Ctr., Working Paper No. 40,
1981).
8
See Mark H. Haller & John V. Alviti, Loansharking in American Cities:
Historical Analysis of a Marginal Enterprise, 21 AM. J. LEGAL HIST. 125, 140
(1977) (noting that interest rate caps on small lending operations in the 1930s
led to an increase in minimum loan size and an exiting of the market by legal
lenders).
9
See ANNE ELLISON & ROBERT FORSTER, THE IMPACT OF INTEREST
RATE CEILINGS: THE EVIDENCE FROM INTERNATIONAL EXPERIENCE AND
THE IMPLICATIONS FOR REGULATION AND CONSUMER PROTECTION IN THE
CREDIT MARKET IN AUSTRALIA 38 (2008) (noting that in countries with strict
interest rate regulations, “lenders not only reject borrowers who fail the credit
score required for any given lending model, they also set lending minimums at
a level at which set up and administration costs are not disproportionate to the
sum advanced, with this varying according to the pricing model concerned.
Typically however, such levels are set significantly above where high risk low
income borrowers would want to borrow. The effect of this policy is either to
exclude such borrowers from the credit mainstream or to lead them to borrow
more than they might otherwise”); ECONOMIC AND SOCIAL RISKS OF
CONSUMER CREDIT MARKET REGULATION: A COMPARATIVE ANALYSIS OF
THE REGULATORY AND CONSUMER PROTECTION FRAMEWORKS FOR
CONSUMER CREDIT IN FRANCE, GERMANY AND THE UK 30 (Policis 2006).
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B. Product Substitution
10
See, e.g., Hans Bader, New Credit Card law Eliminates Cash Back and
Rewards Programs, Harms Responsible People, D.C EXAMINER, Aug. 21,
2009, available at http://www.examiner.com/x-7812-DC-SCOTUS-
Examiner~y2009m8d21-New-Credit-Card-Law-Eliminates-Cash-Back-and-
Rewards-Programs-Harms-Responsible-People. Issuers have also terminated
accounts for some users, an example of rationing, as discussed below.
11
Fox and Guy report that about one-third of title lenders in their survey
charged a fee in addition to the interest rate on the loan. Some were up-front
fees and some were behavior-based fees for late payments and the like. JEAN
ANN FOX & ELIZABETH GUY, DRIVEN INTO DEBT: CFA CAR TITLE LOAN
STORE AND ONLINE SURVEY 11 (2005). Most of the largest title lenders,
however, do not charge up-front fees; thus in terms of loan volume, those who
do charge fees are likely much smaller than the figure reported by Fox and
Guy.
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C. Rationing
12
See Richard L. Peterson, Usury Law and Consumer Credit: A Note, 38 J.
FIN. 1299 (1983).
13
See Dena Potter, Payday Lender Laws Slash Loan Numbers,
WASHINGTON TIMES (June 21, 2009), available at http://www.washington
times.com/news/2009/jun/21/payday-lender-laws-slash-loan-numbers/.
Edward C. Lawrence and Gregory Elliehausen, A Comparative Analysis of
Payday Loan Customers, 26(2) CONTEMPORARY ECONOMIC POLICY 299, 305
(2008).
14
Jay Speer, executive director of the Virginia Poverty Law Center, claims
that the dramatic reduction in payday lending in Virginia that followed a
tightening of the state’s payday lending regulations led to an increase in auto
title lending: “The good news is that there are less payday loans. The bad news
is that they just shifted to car-title lending.” Potter, supra note 13.
15
Jonathan Zinman, Restricting Consumer Credit Access: Household
Survey Evidence on Effects around the Oregon Rate Cap 9 (Working Paper,
2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=
1335438.
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16
THE EFFECT OF INTEREST RATE CONTROLS IN OTHER COUNTRIES 16
(Policis 2004). As discussed below, Hispanic immigrants are much more likely
to be unbanked than the general population, and unbanked consumers may
rely on title lending for credit. Thus Florida’s high level of title lending was
not surprising.
17
AMANDA QUESTER AND JEAN ANN FOX, CAR TITLE LENDING:
DRIVING BORROWERS TO FINANCIAL RUIN 10 (2005) (noting that state law
limits APR to 30% for loans of $2,000 or less). Policis reports that the number
of auto title lenders operating in the state dropped from 600 before the
legislation was enacted to 58 the year following. THE EFFECT OF INTEREST
RATE CONTROLS, supra note 16, at 16. By the next year no licenses at all were
renewed.
18
See Thomas A. Durkin, An Economic Perspective on Interest Rate
Regulations, 9 GA. ST. U. L. REV. 821 (1993); Christopher C. DeMuth, The
Case Against Credit Card Interest Rate Regulation, 3 YALE J. ON REG. 201,
217 (1986).
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19
Michael S. Barr, Banking the Poor, 21 YALE J. ON REG. 121, 164 (2004).
20
WOODSTOCK INSTITUTE AND PUBLIC ACTION FOUNDATION, DEBT
DETOUR: THE AUTOMOBILE TITLE LENDING INDUSTRY IN ILLINOIS ( 2007).
21
FOX & GUY, supra note 11, at 11. In addition, they found some states
with average loan size as little as 20% of the value of the car. There some sense
that the size of loans relative to the value of the car has been increasing over
time. A 1997 study by John Caskey reports a standard loan of about 25% of
the car’s value. JOHN CASKEY, LOWER INCOME AMERICANS, HIGH COST
FINANCIAL SERVICES (1997). More recent studies tend to find ratios of 50% or
higher.
22
TENNESSEE DEPT. OF FINANCIAL INSTITUTIONS, THE 2008 REPORT ON
THE TITLE PLEDGE INDUSTRY 4 (2008) (reporting that over 65% of title loans
were between $250 and $1,000 with the median value of a new title loan equal
to $557.70); Barr, supra note 19.
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23
WOODSTOCK INSTITUTE, supra note 20.
24
TENNESSEE REPORT, supra note 22, at 4.
25
As discussed below, many small independent businesses use title lending
for operating capital, which may account for many of the higher-value loans.
26
Even if permitted under law, as in a few states, lenders report that they
almost never seek a deficiency judgment in practice.
27
Personal conversations between author and members of AARAL; see
also Barr, supra note 1919, at 166 (reporting range of 264-300% APR for title
loans); Quester & Fox, supra note 17 (listing average APRs of 183% to 377% in
survey of several states); WOODSTOCK INSTITUTE, supra note 20 (256% APR
in Illinois).
28
FOX & GUY, supra note 11, at 6.
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29
See TENNESSEE REPORT, supra note 22, at 9 (reporting 17.5% charge-
off rate as measured in dollar amount).
30
QUESTER & FOX, supra note 17, at 7 (citing presentation by John J.
McCloskey of Community Loans of America).
31
Some less-reputable lenders have higher repossession rates. But this
appears to be the small minority of lenders. See QUESTER & FOX, supra note
17, at 7 (reporting that Sal Leasing, Inc. had a repossession rate of 18%)
32
WOODSTOCK INSTITUTE, supra note 20.
33
Personal conversations with industry members reports that one large
lender contracts out repossession services and reports that repossession costs
about $350 per vehicle repossessed. This provides one explanation for why
many loans in default do not result in repossession, especially if the car has
mechanical problems. Many smaller lenders perform their own repossessions
and may be more aggressive about repossessing even nonfunctioning vehicles.
34
See American Association of Responsible Auto Lenders,
http://www.responsibleautolenders.org/about/what_is_title_lending. Others
may have access to public transportation.
35
TENNESSEE REPORT, supra note 22, at 9. Larger companies reported
higher losses on bad debts and higher expenses (as a percentage of operating
revenue) on repossessions than smaller companies. Id. at 10-11.
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36
Paige Marta Skiba & Jeremy Tobacman, Measuring the Individual-
Level Effects of Access to Credit: Evidence from Payday Loans (Working
Paper, 2007).
37
John P. Caskey, Pawnbroking in America: The Economics of a Forgotten
Credit Market, 23 J. MONEY, CREDIT, & BANKING 85, 90 (1991).
38
The discussion here focuses on cash-credit products. But consumers
foreclosed from other types of credit may make use of a variety of other less-
attractive types of credit, such as rent-to-own transactions, or other types of
cash credit, such as tax refund anticipation loans. See Gregory Elliehausen,
Consumers’ Use of High-Price Credit Products: Do They Know What They Are
Doing? (Networks Financial Institute at Indiana State University, Working
Paper No. 2006-WP-02, 2006). Because of their seasonal nature and the
requirement that the borrower actually be scheduled to receive a tax refund,
tax refund anticipation loans frequently are not available for consumers. When
available, their prices are similar as for other nontraditional credit products.
As a result, I do not extensively discuss those products here. In addition to
these products, there are a variety of other sources of credit for consumers to
fund product purchases, such as retail store credit, rent-to-own, and mail-order
retailers that also provide credit.
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39
ILLINOIS DEP’T OF FIN. INSTS., SHORT TERM LENDING: FINAL REPORT
26 (2000).
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42
ILLINOIS REPORT, supra note 39, at 21.
43
ECONOMIC AND SOCIAL RISKS, supra note 9, at 73.
44
McGray quotes one payday lending customer, for instance, who states of
the payday lending company, “They treat me with respect, they’re really nice.”
Douglas McGray, Check Cashers, Redeemed, N. Y. TIMES MAGAZINE, Nov. 9,
2008, available at http://www.nytimes.com/2008/11/09/magazine/09nix-t.html.
45
Mark Flannery & Katherine Samolyk, Payday Lending: Do the Costs
Justify the Price? 9-11 (FDIC Center for Financial Research, Working Paper
No. 2005/09, 2005); CASKEY, LOWER INCOME AMERICANS, supra note 21, at
55. The importance of location may be less important for auto title loans than
for other types of nontraditional types of credit because of the greater mobility
for the borrowers (because they have cars and so are not constrained by the
need to walk or take public transportation) and the greater value of the loans
which justifies traveling further, in comparison to payday and pawnshop loans
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52
ECONOMIC AND SOCIAL RISKS, supra note 9, at 45.
53
THE EFFECT OF INTEREST RATE CONTROLS, supra note 16, at 37.
54
See ECONOMIC AND SOCIAL RISKS, supra note 9, at 55.
55
Id.
56
Ellison & Forster, supra note 9, at 40.
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57
See William J. Verant, Consumer Lending Study Committee Report for
the Forty Fourth Session of the New Mexico State Legislature, Submitted by
the Financial Institutions Division Director, as request by House Memorial 36
(Jan. 2000), as reported in Elliehausen, Consumers’ Use, supra note 38. Figures
reported here are those reported in the 2000 report, unadjusted for inflation.
Adjusting for inflation would raise all of the values. For example, $25,000 in
2000 would be the equivalent of $30,963 in 2008, and $50,000 in 2000 would be
the equivalent of $61,926 in 2008. Elliehausen compared title lending with
pawn, rent-to-own, and tax refund anticipation loans, all of which had much
lower income ranges, and payday lending, which was comparable to title
lending.
58
Id.
59
As reported to author by AARAL members.
60
ILLINOIS REPORT, supra note 39. Other studies, however, have found
that the average salary of title loan borrowers is low and more comparable to
pawnshop borrowers. See QUESTER & FOX, supra note 17, at 6. This finding
seems anomalous, however, and may reflect the study methodology.
61
Elliehausen, Consumers’ Use, supra note 38, at 17.
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62
ILLINOIS REPORT, supra note 39.
63
The degree of substitution between payday and title loans is unclear.
Although they are relatively similar as a demographic matter in terms of
income and age when compared to other nontraditional sources of credit,
direct evidence indicates that payday borrowers do not view title loans as a
major alternative. Elliehausen found that 38% of payday loan customers
considered another source of credit before obtaining their most recent payday
loan, but that they primarily considered a depository institution or a finance
company. Only 0.6% considered a pawnbroker and only 2.5% considered a
title lender. See Elliehausen, Consumers’ Use, supra note 38, at 30.
64
Author’s conversation(s) with AARAL members.
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B. Unbanked Customers
65
According to the 2001 Survey of Consumer Finances, approximately 9%
of all families are unbanked. See George Samuels, Banking Unbanked
Immigrants Through Remittances, http://www.bos.frb.org/commdev/c&b/
2003/fall/unbanked.pdf. Immigrants, especially Hispanic immigrants, are
much more likely to be unbanked than the general population. See MICHAEL
A. STEGMAN, SAVINGS FOR THE POOR: THE HIDDEN BENEFITS OF
ELECTRONIC BANKING 30 (1999).
66
Elliehasuen, Consumers’ Use, supra note 38, at 19. Presumably this is
because lower-income households are less likely to own a car.
67
ELLEN SEIDMAN, MOEZ HABABOU, & JENNIFER KRAMER, A
FINANCIAL SERVICES SURVEY OF LOW- AND MODERATE-INCOME
HOUSEHOLDS, The Ctr. For Fin. Servs. Innovation, July 2005, at 18. (noting
that 56.1 percent of those surveyed owned cars).
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68
Id.
69
CASKEY, LOWER INCOME AMERICANS, supra note 21.
70
THE EFFECT OF INTEREST RATE CONTROLS, supra note 16, at 12.
71
Id. at 13, 18.
72
Id .at 35.
73
Id. at 12-13.
74
Paige Marta Skiba & Jeremy Tobacman, Do Payday Loans Cause
Bankruptcy? 3 (Working Paper, 2008), available at http://ssrn.com/abstract=
1266215 (noting that the average payday loan is $300); see also Robert W.
Johnson & Dixie P. Johnson, Pawnbroking in the U.S.: A Profile of Customers
16 (Credit Research Ctr., Monograph No. 34, 1998) (noting that the average
loan of $70 with a typical range from $35 to $260); JOHN P. CASKEY, FRINGE
BANKING: CHECK-CASHING OUTLETS, PAWNSHOPS AND THE POOR 44 (1994)
(finding average pawnbroker loan of $50 to $70).
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75
CASKEY, supra note 74, at 36. Skiba and Tobacman find that pawn
loans have a ninety-day term, with a monthly interest rate of 20% on loans
between $1 and $150 and 15% on loans above $150. See Skiba & Tobacman,
supra note 36.
76
Caskey, Pawnbrokers, supra note 37, at 92.
77
Ellison & Forster, supra note 9, at 62.
78
Skiba & Tobacman, supra note 36.
79
See PETERSON & FALLS, supra note 7; see also Johnson & Johnson,
supra note 74, at 47.
80
THE EFFECT OF INTEREST RATE CONTROLS, supra note 16, at 37.
81
Id. at 38.
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82
Ellison & Forster, supra note 9, at 62.
83
Id. at 78.
84
THE EFFECT OF INTEREST RATE CONTROLS, supra note 16, at 38.
85
Id. at 38.
86
Id.
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87
See U.S. Census, American Community Survey 3-year Estimate, 2005-
2007, available at http://factfinder.census.gov/servlet/DatasetMainPage
Servlet?_program=ACS.
88
See Office of Advocacy, U.S, Small Business Administration, Non-
employer Firms and Receipts by Industry, 2002-2007, available at
http://www.sba.gov/advo/research/ind97_07.pdf.
89
See Alicia Robb, Robert W. Fairlie, & David T. Robinson, Patterns of
Financing: A Comparison Between White- and African-American Young Firms
- Fourth in a Series of Reports Using Data from the Kauffman Firm Survey,
(Kauffman Found. Firm Survey Research, Working Paper 2009), available at
http://ssrn.com/abstract=1456451; Susan Coleman and Alicia A. Robb,
Comparison of New Firm Financing by Gender: Evidence from the Kauffman
Firm Survey Data (Working Paper 2009), available at http://ssrn.com/
abstract=1260980.
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96
Id. at 37.
97
Elliehausen, An Analysis, supra note 90, at 43.
98
Id.
99
Id. at 33.
100
Id.
101
Zinman, supra note 15, at 9.
102
Id.
103
Id.
104
Donald R. Morgan and Michael R. Strain, Payday Holiday: How
Households Fare after Payday Credit Bans (Fed. Res. Bank of N.Y. Staff
Report no. 309, 2008).
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105
Michael W. Lynch, Legal Loan Sharking or Essential Service? The
Great “Payday Loan” Controversy, REASON (2002); Barr, supra note 19, at 155.
The Illinois study estimates total fees “in excess of $43” for a bounced check.
ILLINOIS REPORT, supra note 39, at 31.
106
According to one news story, at most banks “if you’ve bounced too
many checks you’re banned for five to seven years.” McGray, supra note 44.
107
Robert DeYoung & Ronnie J. Phillips, Payday Loan Pricing, 6 (Fed.
Res. Bank of Kan. City, Working Paper RWP 09-07, 2009).
108
FDIC, FDIC STUDY OF BANK OVERDRAFT PROGRAMS 78 (2008).
Ironically, and evidencing the ill-suited nature of APR as a measure for these
sorts of short-term loans, the measured APR is higher when the loan is repaid
quicker.
109
Zinman, supra note 15. The imposition of new regulations on payday
lending operations in Virginia in 2008 has led to an estimated 84% reduction in
the volume of payday loans and a dramatic reduction in the number of
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licensed payday lending outlets, from 832 to 526. See Potter, supra note 13.
110
Tom Feltner & Sara Duda, Beyond Payday Loans: Consumer
Installment Lending in Illinois 3 (Woodstock Institute Working Paper, 2009).
111
Id.
112
FELTNER & DUDA, supra note 110, at 4.
113
LENDOL CALDER, FINANCING THE AMERICAN DREAM 60-64 (1999).
114
SEIDMAN, supra note 67, at 17.
115
Angela Littwin, Beyond Usury: A Study of Credit Card Use and
Preference Among Low-Income Consumers 8 (Harvard Law Sch. Faculty
Scholarship Series Working Paper, 2007).
116
Angela Littwin, Comparing Credit Cards: An Empirical Examination of
Borrowing Preferences Among Low-Income Consumers 36 (Harvard Law Sch.
Faculty Scholarship Series Working Paper, 2007), available at
http://ssrn.com/abstract=1014460.
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117
Elliehausen, An Analysis, supra note 90, at 39.
118
ECONOMIC AND SOCIAL RISKS, supra note 9, at 35.
119
Id. at 79.
120
Id. at 80. Consistent with this notion, Seidman, et. al., find that
borrowing from friends and family is most prominent for emergencies. See
Seidman, supra note 67, at 17.
121
ECONOMIC AND SOCIAL RISKS, supra note 9, at 79.
122
Id. at 36.
123
Haller & Alviti, supra note 8, at 140.
124
Id. at 143.
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125
See ECONOMIC AND SOCIAL RISKS, supra note 9; See also THE EFFECT
OF INTEREST RATE CONTROLS, supra note 16.
126
ECONOMIC AND SOCIAL RISKS, supra note 9, at 38.
127
Id. at 6.
128
Mary Jordan, As Italy’s Banks Tighten Lending, Desperate Firms Call
on the Mafia, WASH. POST, Mar. 1, 2009, at A01.
129
THE IMPACT OF INTEREST RATE CEILINGS, supra note 9, at 47.
130
Id. at 47-49.
131
Id. at 48 (citing Hiroshi Domoto, Behavioral Analysis of Consumer
Loan Users, REGIONAL BANKS MONTHLY REPORT (Oct. 2007).
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132
Id. at 49, 83.
133
Id. at 37-38.
134
Id. at 40.
135
Id. at 39, 40.
136
Id. at 51.
137
See John M. Seidl, Let’s Compete With Loan Sharks, 48 HARV. BUS.
REV. 69, 69 (May-June 1970).
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138
See generally, ECONOMIC AND SOCIAL RISKS, supra note 9, at 74, 78.
139
Id. at 75-80.
140
As noted, the bankruptcy rate for auto title loan customers is less than
1%. See ILLINOIS REPORT supra note 39, and accompanying text.
141
Gary Fields, People Pulling Up to Pawnshops Today Are Driving
Cadillacs and BMWs, WALL ST. J., Dec. 30, 2008, at A1; Jeff Swiatek, More
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143
See Paige Skiba & Jeremy Tobacman, The Profitability of Payday
Loans, (Working Paper, 2006), available at http://bpp.wharton.upenn.edu/
tobacman/papers/probitability.pdf; Flannery & Samolyk, supra note 45; Aaron
Huckstep, Payday Lending: Do Outrageous Prices Necessarily Mean
Outrageous Profits?, 12 FORDHAM J. CORP. & FIN. L. 203 (2007).
144
Philip Bond, David K. Musto, & Bilge Yilmaz, Predatory Lending in a
Rational World (Fed. Res. Bank of Philadelphia, Working Paper 06-2, 2006),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=875621.
145
See Donald P. Morgan, Defining and Detecting Predatory Lending,
Fed. Res. Bank of N.Y. Staff Report no. 273, 5-6 (Jan. 2007); DeYoung &
Phillips, supra note 107; THE EFFECT OF INTEREST RATE CONTROLS, supra
note 16, at 26 (finding that prices on payday loans have fallen as competition
has intensified).
146
DeYoung & Phillips, supra note 107.
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147
Christopher R. Knittel & Victor Stango, Price Ceilings as Focal Points
for Tacit Collusion: Evidence from Credit Cards, 93 AM. ECON. REV. 1703
(2003).
148
See ECONOMIC AND SOCIAL RISKS, supra note 9, at 32; see also Staten,
supra note 2.
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149
Robert W. Johnson & A. Charlene Sullivan, Restrictive Effects of Rate
Ceilings on Consumer Choice: The Massachusetts Experience (Credit Res. Ctr.,
Working Paper No. 35, 1980).
150
Orville C. Walker, Jr. & Richard F. Sauter, Consumer Preferences for
Alternative Retail Credit Terms: A Conceptual Test of the Effects of Consumer
Legislation, 11 J. MKTG. RES. 70, 78 (1974); see also Richard F. Sauter &
Orville C Walker, Jr., Retailers Reactions to Interest Limitation Laws—
Additional Evidence, 36 J. MKTG. 58 (1972), John J. Wheatley & Guy G.
Gordon, Regulating the Price of Consumer Credit, 35 J. MKTG. 21 (1971).