I am grateful to the contributors to this Symposium for such thoughtful pieces, as well as to the editors of the Yale Journal on Regulation for putting the Symposium together. The ALI membership is scheduled to vote on the current draft this May, so I will use this concluding post to respond to just a […]
The Restatement of Consumer Contracts provides a systematic formulation of the common law rules guiding courts in resolving disputes over consumer contracts. These rules are distilled from the analysis of longstanding common law doctrines, as well as a careful reading of more recent leading court decisions, from which we elicit the governing principles. We clarify […]
“Empiricism and Privacy Policies in the Restatement of Consumer Contract Law” (Empiricism) asks the wrong question and takes the wrong approach to answering that question. A second article in same issue of the Journal, “The Faulty Foundation of the Draft Restatement of Consumer Contracts” (Faulty Foundation) has similar flaws.[1] Both articles misconceive and overstate the […]
The American Law Institute’s Draft Restatement of the Law of Consumer Contracts is a highly controversial project that has drawn sharp criticism from state attorneys general, consumer advocates, civil rights and labor organizations, and even a former ALI Vice-Chair, Elizabeth Warren, who is now a Presidential candidate. Reasonable minds might differ regarding the normative choices […]
The American Law Institute is considering the adoption of a Restatement of Consumer Contracts. (The present version of the proposed Restatement is Council Draft No. 5, and this article is based on that Draft.) The proposed Restatement is opposed by the Attorneys General of California, Delaware, the District of Columbia, Illinois, Iowa, Maine, Maryland, Massachusetts, […]
How would one go about the process of discovering the law related to a field such as consumer contracts in order to incorporate it into a “Restatement”? Presumably, a scholar would be concerned with the reasoning of courts as they apply legal principles “on the ground,” a practice that transcends recitations of doctrine classified in […]
The draft Restatement of the Law of Consumer Contracts invokes six quantitative studies of judicial decisions. Each study seeks to collect all available decisions on a legal question, published and unpublished; codes those decisions for factors such as issue, outcome, procedural posture, jurisdiction, and citations; and analyzes the coded data to determine majority rules, trends, […]