Mark Budnitz, ‘The Restatement of the Law of Consumer Contracts: The American Law Institute’s Impossible Dream’

ABSTRACT
The American Law Institute has been attempting to write a Restatement of the Law of Consumer Contracts since 2012. The proposed Restatement has gone through ten drafts and has generated considerable controversy among the ALI membership as well as opposition from both consumer advocacy organizations and business associations. The project is an impossible dream. Companies continually take advantage of advances in technology to make major changes in the consumer marketplace. Consequently, any Restatement will be seriously out-of-date as soon as it is approved by the ALI. Furthermore, there is a paucity of relevant cases and a lack of consensus among the courts that have issued opinions. Consequently, if approved, a Restatement will significantly influence the future development of case law. This would be unfortunate because there are other factors contributing to the inadequacy of the draft that is currently under review. The Reporters’ drafts are based on an incomplete description of the consumer marketplace that fails to reflect the reality in which consumers and businesses engage in online transactions. Scholars have questioned their collection and analysis of case law. The Reporters ignore the insights of social science. They have an unduly constricted view of the factors the ALI should consider in drafting a Restatement. A major flaw is the insistence on ‘black letter’ rules that embody a ‘blanket consumer assent’ approach that creates a presumption that consumers engaging in online transactions are bound to standard contract terms. Alternatives to a Restatement should be considered.

Budnitz, Mark Elliott, The Restatement of the Law of Consumer Contracts: The American Law Institute’s Impossible Dream (June 2020). Loyola Consumer Law Review, forthcoming; Georgia State University College of Law, Legal Studies Research Paper.

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