Pervasive Infancy: Reassessing the Contract Capacity of Adults in Modern America

UNH Law Review, Forthcoming

64 Pages Posted: 18 Jun 2020 Last revised: 13 Jan 2021

See all articles by Michael Lewis

Michael Lewis

Rath, Young and Pignatelli; Vermont Law School; University of New Hampshire School of Law (formerly Franklin Pierce Law Center)

Date Written: June 18, 2020

Abstract

This article argues that the law of consumer contracts should permit adults to access the same protections available to children where data about adult performance indicates that the two categories of people are similarly situated in the domain of consumer contracts. In making this claim, this article relies upon a description of capacity articulated by Professor Martha Nussbaum in her important work on the subject. Professor Nussbaum explains that capacity is a function, not only of a person’s innate capabilities, but of a person’s opportunity or ability to deploy those capabilities within environmental limitations. Capacity to contract in a free society has demanded sufficient internal self-control to direct action and make decisions we would expect of a free person vested with a set of important personal rights. Nussbaum’s standard raises the possibility that even people with substantial internal capabilities may not have capacity if the environment in which they are seeking to express their capacities negates them. This article argues that the law of consumer contracts is one such domain. It therefore argues that this domain should reassign risks between consumers and sellers in the consumer contracting market, where data about adult decision-making in the domain suggests that adults do not have the power to protect their contract rights through bargaining by applying reasoned decision-making. It does so as a means of saving the very institution of contract law itself, which is a central mechanism for securing freedom of choice for Americans.

Keywords: Contracts, Consumers, Capacity, Adult, Adulthood, Infancy, Minority, Ignorance, Mistake

JEL Classification: K22

Suggested Citation

Lewis, Michael, Pervasive Infancy: Reassessing the Contract Capacity of Adults in Modern America (June 18, 2020). UNH Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3526991 or http://dx.doi.org/10.2139/ssrn.3526991

Michael Lewis (Contact Author)

Rath, Young and Pignatelli ( email )

NH
United States

Vermont Law School ( email )

68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States

University of New Hampshire School of Law (formerly Franklin Pierce Law Center) ( email )

Two White Street
Concord, NH 03301
United States

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