A Critical Assessment of the Empiricism in the Restatement of Consumer Contract Law
Georgetown University Law Center, 2017
55 Pages Posted: 18 Jul 2017 Last revised: 8 Sep 2017
Date Written: July 12, 2017
The draft Restatement of the Law of Consumer Contracts includes six quantitative studies of judicial decisions, each used to support a rule or comment. This article examines the draft’s study of privacy-policy decisions, which the draft relies on for a comment stating that business privacy policies are generally treated as contract terms.
In addition to presenting these results, the article discusses why coding privacy-policy decisions can be especially difficult, and the results of that coding sometimes indeterminate. The numbers in quantitative studies of case outcomes can mask the many interpretive judgment calls needed to support them. These results suggest several common-sense methodological lessons that apply to quantitative caselaw studies generally. They also suggest that the Restatement process might be ill suited to producing large-scale quantitative studies of judicial decisions.
Keywords: contract law, consumer contracts, privacy law, privacy policies, empirical legal studies, quantitative caselaw studies
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