ALI’s Proposed Restatement of Consumer Contracts – Perpetuating a Legal Fiction?
By Dee Pridgen
The members of the American Law Institute (ALI) are currently working on what may ultimately become “The Restatement of Consumer Contracts.” This project could provide an opportunity for real law reform. Indeed, the original goals of the ALI include adapting the law to social needs, and the better administration of justice as well as reflecting the law as it stands.
I have been involved with the American Law Institute’s proposed Restatement of Consumer Contracts project as a member of the advisory committee for the past four years. This would be a supplemental Restatement separate from the existing Restatement (Second) of Contracts, which already exists. The Consumer Contracts project is now in its 2nd preliminary draft. The draft still has to go through a process of approval by the ALI Council and the ALI general membership before it becomes final. So bear in mind the proposed Restatement is not yet an official final document of the ALI, and there is still time to reshape it.
The ALI Restatements of Law are aimed at common law doctrines. While much of consumer law is governed by statutes and regulations, there is at least one area where the common law of contracts is having a big impact on consumer law, and that is the application of the so-called “duty to read” doctrine to online standard form contracts. One-sided and unfair clauses are increasingly showing up in the scroll down box, or the multi-page link, or even in the shipping container or on a hyperlink that is only accessible after the purchase has been made.