Ideology, Coercion, and the Proposed Restatement of the Law of Consumer Contracts

Abstract

The Restatement of the Law of Consumer Contracts (RLCC) has been the subject of much controversy and debate. To those who are unfamiliar with the RLCC, the issues may seem abstract or even trivial. But to those who care about consumers and consumers’ rights, the issues are real, critical and of enormous consequence. The outcome of this discussion determines what rights consumers will have, how they will enforce them and the extent to which unread fine print can alter societal and marketplace norms for decades.

This Essay focuses on two provisions of the RLCC: § 2 – Adoption of Standard Contract Terms, which adopts the standard of notice-and-manifestation; and §3 – Modification, which permits modifications with notice-and-manifestation of assent (referred to as “notice-and-manifestation.”) This Essay argues that the current draft of the Restatement of Consumer Contracts engages in ideologically motivated rule-making by implementing two normative shifts. First, it changes the law of electronic contracts of adhesion by interpreting and adopting a standard as a rule. The law of electronic adhesion contracts is currently in flux. The RLCC, however, assumes a coherence and stability with respect to the law of electronic contracts that is belied by the case law. Second, it treats all consumer form contracts as electronic contracts of adhesion. The RLCC misreads the current state of the law governing contracts and specifically, the law of consumer contracts. It does this by confusing the law of consumer contracts with the law of electronic adhesion contracts.

Keywords: consumer contracts, Restatement of Consumer Contracts, contract law, clickwrap, browsewrap, electronic contracts, digital contracts, contracts of adhesion, standard form contracts