Publication Date
2020
Document Type
Article
Abstract
This Article examines the American Law Institute’s Restatement of the Law of Consumer Contracts, with particular focus on Section 2 and its adoption of the rolling contract theory and notice-based assent to standard terms. Tracing the doctrinal roots of this approach to ProCD v. Zeidenberg and its progeny, the Article situates contemporary consumer contract formation within broader debates over assent, efficiency, and fairness in both offline and online transactions. Rather than engaging solely in doctrinal critique, the Article draws on corporate social responsibility (CSR) literature to argue that market forces alone are insufficient to regulate how businesses present standard terms to consumers. When ethical behavior conflicts with competitive pressures, even well-intentioned firms face incentives to obscure or minimize consumer awareness of contractual terms. The Article contends that consumer contract formation presents precisely this dilemma and therefore calls for a legislative response. By analogizing to regulatory frameworks such as the Magnuson-Moss Warranty Act, the Article concludes that statutory intervention—rather than further judicial reliance on notice and market correction—is the most effective means of ensuring meaningful consumer assent and ethical contracting practices.
Publication Title
Loyola Consumer Law Review
Volume
32
Issue
3
Recommended Citation
Colin P. Marks,
There Oughta Be a Law: What Corporate Social Responsibility Can Teach Us About Consumer Contract Formation,
32
Loyola Consumer Law Review
498
(2020).
Available at:
https://irlaw.umkc.edu/faculty_works/1056