Personalized Choice of Private Law

Abstract

Personalized choice of private law is a novel framework for designing the legal rules that govern transactions and interactions between private parties. It addresses a pervasive theoretical and practical problem in private law: Private ordering is supposed to enable parties to choose the terms of their transactions, but under modern commercial conditions, many people do not actually consent to important terms of their contracts and other interactions with firms. Personalized choice of private law responds to that failure by empowering individuals to choose, from a government- authored, centralized catalogue of options, the private law rule that will apply to them. Through that choice, it grants people a greater say in crafting their transactions and interactions with powerful private parties who would otherwise dictate the terms of engagement.

This Article offers a synoptic view of personalized choice of private law, addressing questions of scope, design, and justification. It first situates the framework within the theoretical and doctrinal landscape of existing approaches to private law and analyzes important scope and design choices facing lawmakers in its implementation. It then offers twin justifications grounded in foundational norms of private law: autonomy and economic efficiency. It proceeds to consider how the framework should be crafted to account for concerns about the unequal distribution or the improper commodification of legal rights and rules that personalization might entail.

The Article concludes by offering a proof of concept of personalized choice of private law by sketching its implementation in two contexts: arbitration and data privacy. A Do Not Arbitrate List could render arbitration clauses unenforceable against you. A Digital Data Privacy Registry could empower you to choose a legal rule that prohibits any company from collecting, using, or selling data about you. These two potential implementations of personalized choice of private law illustrate its promise as a new tool for the design of private law.

Keywords: Private Law; Contract Law; Behavioral Law and Economics; Arbitration; Privacy Law; Consumer Law; Legal Theory; Law and Economics; Law and Philosophy