Rebecca Stone (University of California, Los Angeles (UCLA) – School of Law) has posted A Democratic Conception of Consumer Contracts (15 HBLR 93 (2025)) on SSRN. Here is the abstract:
I sketch and briefly evaluate two standard ways of conceptualizing the problem that is posed by consumer contracts and defend a third view, which is based on my democratic conception of contract. According to the first, the power asymmetry between sellers and consumers means that we should not view consumer contracts as genuine contracts but rather as illegitimate exercises of private law-making by sellers for their consumers. According to the second, which broadly aligns with the approach of the Restatement of Consumer Contracts, consumer contracts are genuine contracts but of a procedurally defective kind. On the view I defend, the essence of the problem is not the compromised assent of consumers, but rather the tendency of sellers to set terms without regard for consumers’ interests. Individual consumers have little interest in acquiring the knowledge they would need to be more involved in the setting of the terms of their relationships with sellers, though they have an interest in doing so collectively. Sellers, by contrast, are well positioned to take on that responsibility because they deal with multiple consumers on the same terms at the same time. According to my democratic conception of contract, sellers are under robust duties of good faith to set terms with an eye to articulating a vision of justice for their relationships with consumers, rather than seeking their own advantage or undermining the mechanisms via which consumers can collectively assert themselves. Legal regulation of consumer contracts should accordingly be directed towards ensuring sellers discharge those duties of good faith when they set the terms of their agreements with consumers.
Highly recommended.