The ALI's proposed Restatement of the Law, Consumer Contracts ("RLCC") has managed to alarm both corporate America and consumer advocates, including half the nation's attorneys general. To some extent, the RLCC is yet another victim of the nation's increasing polarization and the rise of partisanship within the legal profession. But the RLCC suffers from self-inflicted wounds through questionable endorsement of problematic case law on contract formation as well as its goal of a well-intentioned but flawed "Grand Bargain" that arguably seized a middle ground disliked, for different reasons, by both consumer and business advocates. The RL CC stepped into this possible worst of both worlds by seeking to remake contract doctrine but at the same time paradoxically taking an unduly narrow a view of the permissible scope of "restating" the law. In doing so, it bypassed an opportunity to shift the framework of consumer contract law in a manner that could have benefitted consumers and the public interest at little cost to legitimate commercial concerns. All that said, the RLCC nonetheless contains provisions helpful to consumers if applied with sufficient zeal and frequency by courts.
How to Make a Dead Armadillo: Consumer Contracts and the Perils of Compromise,
Loy. Consumer L. Rev.
Available at: https://lawecommons.luc.edu/lclr/vol32/iss3/7