Shook Of Counsel Chris Appel has written a law review article for the Loyola Consumer Law Review on the American Law Institute's (ALI's) proposed Restatement of the Law, Consumer Contracts. "Although the goal of enhancing consumer protections may be laudable, the basic problem with this proposed Restatement approach is that courts have not articulated a separate set of 'consumer contract' rules that operate differently from the general law of contracts," Appel explains. "Consequently, a fundamental question that has arisen regarding the Restatement of the Law, Consumer Contracts is whether the project proposes to 'restate' law or create it."
Appel provides an overview of ALI's Restatements and an analysis of the approach taken in the proposed Restatement of the Law, Consumer Contracts. "The ALI is on the precipice of adopting a Restatement that recommends fundamental changes to the common law of contracts that have no common law support," he concludes. "The proposed Restatement of the Law, Consumer Contracts endorses a novel set of mandatory 'consumer contract' rules designed to introduce greater consumer protections into the common law that would allow consumers to invalidate all or part of an agreement entered voluntarily with a business. The project resorts to extraordinary and unprecedented means to accomplish this desired policy outcome and to usher in such a new common law regime."