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The Struggle Over the Soul of Contract Law

Professor Nancy Kim

The subject of “consumer contracts” sounds about as interesting as reading fine print yet at the May annual meeting of the American Law Institute, the debate over the Restatement of Consumer Contracts lasted for hours, with no final resolution. So what stirred up such debate, asks California Western’s Professor of Law Nancy Kim in a recent article published in the Jurist.

The proposed RLCC is an attempt to unsnarl the messy strands of contract law that have sprung up with the rise of all things digital, writes Professor Kim. For contracts professors, nothing less than the soul of contract law, and the Uniform Commercial Code (UCC) is at stake.

As the world moves online, the advancement in consumer contracts law is occurring in a very dynamic period, says Professor Kim. Digital contracts have become weightless and virtually invisible to consumers who have become habituated to clicking without reading the fine print and adjacent terms.

The RLCC, writes Kim, was (and continues to be) the subject of a thoughtful and energetic discussion on a list serve of contracts law professors who care about making sure that the next generation of lawyers gets the law right.

As the ability to control our data becomes more critical to our individual freedoms, our ability to refrain from contracting away our rights becomes more important, writes Professor Kim. The RLCC essentially shrugs its shoulders and claims it can do nothing about the social problems created by contracts run amok. Yet, that claim is untrue. Contract law was designed to address social problems and changing marketplace needs and it has done so by protecting the reasonable expectations of the parties. Instead, of feigning helplessness, the RLCC should help rebuild the public’s faith in the law by rehabilitating contract doctrine and restoring it to its former glory.

Read Professor Kim’s complete Jurist article here.