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Session Summary: The Future of Consumer Contracts

Submitted by Colin P. Marks

On July 31, 2019, a SEALS discussion group titled “The Future of Consumer Contracts” was held. The group, moderated by Todd J. Clark of St. Thomas University School of Law (Miami, Florida) covered a range of topics that are currently of great concern to consumer law scholars and advocates. The discussion was framed by a case study, provided by Jonathan R. Marshall who directs the Center for Consumer Law and Education at West Virginia University’ School of Law. The case study involved a consumer’s purchase of internet service and the standard terms that were sent to him after a technician installed the hardware in his home. When the internet service did not live up to the promised speed, the consumer sued and the defendant moved to compel arbitration, and also sought to invoke the damage limitation clause, both of which were found in the subsequently received terms. The case study provided an opportunity for the discussion group to explore the impact the Restatement of the Law of Consumer Contracts, if passed by the ALI in its current form, would have on this consumer and others like him, what direction various discussants felt the ALI should go in with that project, the impact of section 211 of the Restatement (Second) of Contracts generally, the effect of arbitration clauses in general since the Supreme Court’s decision in  AT&T v. Concepcion, and unconscionability in general as a defense. There was a general consensus that the Restatement on Consumer Contracts, as presently written, would not favor the case study consumer, and some posited that legislation, rather than the common law of contracts, may be the better avenue to curve practices that may seem unfair to consumers.

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