Loyola Consumer Law Review
The Restatement of Consumer Contracts has been a controversial project since its inception. Some have argued that the project is unnecessary as there is no separate law of consumer contracts. Others have argued that the project is more appropriate for a Principles of Law project than for a Restatement. Substantively, the project has also drawn criticism from both consumer and business advocates. Consumer advocates have argued that some of the sections, in particular section 2 which addresses standard terms, favor businesses and subject consumers to terms and conditions that they never truly assented to.9 Business advocates have argued, among other things, that the draft Restatement favors consumers once litigation commences by strengthening claims of unconscionability and permitting the introduction of normally inadmissible parol evidence.
Basically, the Restatement of Consumer Contracts has something for everyone to hate and has presented a rare instance where consumer and business advocates are in agreement over their objection to the project (though for different reasons). Rather than assail the entire project, this article focuses primarily on Section Two of the draft Restatement and its treatment of standard terms. This is not to say that other sections are unobjectionable, but the purpose this article is to demonstrate that certain corporate behaviors are better addressed through legislation than left to the markets.
Colin P. Marks, There Oughta Be a Law: What Corporate Social Responsibility Can Teach Us about Consumer Contract Formation, 32 Loy. Consumer L. Rev. 498 (2020).