Some time ago I posted a note about the upcoming 8th International Conference on Contracts to be hosted at Texas Wesleyan Law School this past week. I thought that I would take this opportunity to make some observations on what seemed to be the most pervasive topic addressed by variety of folks on various panels: The decade or so longer armistice on contracts of adhesion/form contracts has come to an end.
There has always been an undercurrent of academic discomfort or outright hostility to the notion that persons, typically consumers, are bound by the terms of an agreement they've not read and which the drafting business knows they've not read. However, the ubiquity of form contracts, which increased with the advent of Internet click wrap, coupled with academic arguments that such agreements were efficient, had seemed to tamp down criticism.
Perhaps occasioned by Margaret Radin's new book, Boilerplate, questions about the moral and political justifications for legal remedies for form contracts are back on the front burner. The implications of behavioral economics have weakened the efficiency argument. Others find Randy Barnett’s analogy of consent to form contracts to a promise to do whatever is provided in an unopened envelope to have stretched the notion of consent a step too far.
The overall mode at the conference was decidedly negative toward the virtual carte blanche courts have given to form contracts. But this raises another question: How are we to account for such judicial acquiescence? It seems unlikely that nearly all judges are followers of neo-classical economics or are thralls to corporate America. There must be something behind judicial approval of form contracts and, behind that application, the more comprehensive notion of grounding contract formation on “objective manifestations of assent.” Until professedly pro-consumer academics identify and respond to the zeitgeist of consumerism, I’m not confident we’ll see any change in the law of form contracts.