Patricia A. McCoy of Boston College has written Inflection Points in The Drafting of the Restatement on Consumer Contracts: Salience and Its ARC. Here’s the abstract:
When the Reporters of the Restatement of the Law, Consumer Contracts (RCK or Restatement) undertook that project for the American Law Institute, they faced a bind. Courts generally infer blanket assent to boilerplate, contingent on proper notice. But the Reporters were previously on record as skeptical of notice because consumers almost never read boilerplate. So how would the Reporters resolve this tension while upholding the function of Restatements to restate the law? Their solution was two-fold: to organize the RCK around the concept of salience and to look to contract defenses such as unconscionability and deception to protect consumers. In early versions of the RCK, unconscionability would have been available as a defense—regardless of notice—for non-salient terms, i.e., ones that did not affect the contracting decisions of a substantial number of consumers. In contrast, early drafts of the RCK maintained that salient terms could never be substantively unconscionable because they were adequately policed by market forces.
With salience as the springboard, the Restatement project unfolded in three acts, each with its own inflection point. In Act One, the Reporters rolled out salience as the work-around to the problems posed by notice. In Act Two, salience sparked heavy pushback. In Act Three, pro-consumer forces grafted some meaningful reforms onto the RCK’s text and managed to extend the unconscionability defense to all contractual terms. But those reforms did not excise the traditional common-law notice requirements that had been built into the RCK from the start. Once salience disappeared from the black letter of the RCK due to opposition within the ALI’s ranks, those notice requirements regained their former prominence. As a result, the final Restatement generally allows fine-print terms to bind unsuspecting consumers so long as there is proper notice, subject to defenses that are difficult to prove. With consumer contracts thus being easy to make but hard to break, it remains unclear whether the Restatement will result in meaningful relief for injured consumers.
