13 Pages Posted: 26 Nov 2019
Date Written: November 8, 2019
This response to Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019), makes three broad points. It criticizes as arbitrary and essentializing Kar and Radin’s insistence of shared meaning as the core of contracting. It argues that even if shared meaning were the sine qua non of contracting, their proposal fails to achieve it because it does not assure that the terms would be cooperatively communicated. And it argues that their proposed enforcement standard would in practice severely limit freedom of contract and likely reduce consumer welfare. There is a good argument that the law of contract requires updating to take account of new technologies of consumer contracting. But Kar and Radin’s proposed reform does not address the core risks to consumers, and would quite possibly do more harm than good.
Keywords: contracts, consumer contracts, boilerplate
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