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The Shape of Consumer Contracts
Get PDFModern consumer contracts are the bane of contract law and theory. Freedom of contract justifications are premised on party autonomy and transactional efficiency, but theories justifying contract enforcement fail to explain why the law should treat company-crafted terms as presumptively binding on consumers. Consumer protection advocates point out that lower thresholds for manifesting assent endorsed by the recent Restatement of the Law of Consumer Contracts may result in consumers being bound to terms of which they were reasonably unaware. Other scholars point out that mere knowledge of company terms and conditions does almost nothing to protect consumers in any case because consumers are powerless to shape those terms. Indeed, in the face of negotiation impotency, it is inefficient and illogical for consumers to read, understand, and analyze a company\u27s boilerplate terms even when they are made available. Attempting to fit traditional contract rules to the modern consumer contract context results in a body of contract law that combines fantastical notions of assent with increasing government policing of ostensibly private contract terms.
There is a better way. This Article advocates for a novel approach to consumer contract law, one that that avoids pitting fairness against efficiency. A more tailored contract baseline for consumer contracts starts by recognizing the distinct shape of the modern company-consumer relationship. Traditional contract law is premised on a horizontal relationship formed between parties who can each provide some contractual input. Consumers, however, lack the ability to provide direct contractual input for the majority of their transactional relationships. Online terms and conditions are created by and for companies; consumers simply acquiesce to them as a cost of doing business. Thus, the company-consumer relationship is a hierarchical, vertical relationship. Applying traditional horizontal contract law to vertical company-consumer relationships inhibits multi-party input and erodes contract legitimacy. In the context of a vertical relationship, the legal baseline must look outside the unilaterally controlled boilerplate to determine the parties\u27 contract content.
A better tailored approach to consumer contracts would treat a consumer\u27s choice to do business with a company as legally distinct from assent to that company\u27s online terms. Consumers choose transactional
relationships, not online terms. Furthermore, the market provides inadequate variety among various companies\u27 boilerplate terms.
Contract law can provide a two-step pathway for consumers to shape the terms of their contracts. First, the law must disentangle the choice of making a transaction and a commitment to be bound to boilerplate terms. Then, although the law can deem consumer assent to terms necessary for the transaction\u27s infrastructure (constructive terms), it must find boilerplate terms that exist solely to reduce consumers\u27 default legal rights (destructive terms) legally ineffective. Tort law\u27s liability allocation defaults, contract law\u27s basic principles, and our legal system\u27s dispute resolution process should persist notwithstanding mere boilerplate to the contrary. Consent to the transaction divorced from assent to destructive terms would prevent controlling parties in vertical relationships from dictating private governing rules. Existing default legal rights are a better approximation of consumer contracting preferences. This Article sets out theoretical justifications for altering the legal baseline for consumer contracts empowering consumer-preferred inputs
A PROPOSAL FOR THE JOINT DEVELOPMENT OF GENERATIVE AI FOR THE DISPUTE RESOLUTION PROFESSION
Get PDFThis post by Gary Doernhoefer proposes the development of a data set for the dispute resolution profession as the basis for AI systems. The ideal model would be for a collaboration in the dispute resolution field to create the refined data set, establish guardrails, and set privacy parameters for the use of the data. This would involve a centralized advisory board to address concerns such as (1) privacy requirements for how the queries are received, stored, and used, (2) the expertise needed to curate additional training materials, (3) shared costs of development, and (4) gaining the cooperation of industry authors whose materials might be included in the training data set. He gives the example of AI applications helping neutrals by generating lists of likely issues to be addressed, potential questions a neutral might ask, or potential proposals to consider
TRAINING YOUR MEDIATOR BOT
Get PDFThis somewhat tongue-in-cheek post discusses biases in AI systems. Noting that AI bots need to be “trained,” this post suggests that untrained mediator bots may spew out unwanted interventions such as providing undesired evaluations of BATNA values – or failing to provide desired evaluations. So mediators probably will need to co-mediate with their bots for a while to observe and correct its biases. Ironically, bots may produce language that normal humans understand much better than the confusing jargon we habitually use. So the mediator bots may need to train human mediators
Why States Should Conform to the New Corporate AMT
No full textIn 2022, as a key component of the Inflation Reduction Act, Congress enacted a new corporate alternative minimum tax (CAMT). With the possible exception of Alaska, states with corporate income taxes will not automatically conform to this change. But should they? Although states may not currently be seeking additional tax revenue, seasons change quickly when it comes to revenue needs. Further, there is increasing reason to believe that the corporate income tax is a progressive tax, and if so, a state might consider conforming to the CAMT as part of a revenue-neutral change to make its tax system more progressive. Accordingly, in this article we explain why states should and how they could conform to the CAMT. Essentially, we argue that states should take further steps to combat international profitshifting forms of tax avoidance (such as moving in the direction of worldwide combined reporting) and that conforming to the new CAMT is a good step in that direction
Charlie Irvine\u27s Challenge to Mediators to Describe Your Mediation System
Get PDFCharlie Irvine is the Course Leader on the University of Strathclyde’s (Scotland) MSc/LLM in Mediation and Conflict Resolution and the Director of the Strathclyde Mediation Clinic. The Clinic provides a free mediation service in which experienced practitioners work alongside trainee mediators to help people resolve disputes without going to court or tribunal. The following is Charlie’s Director’s Column published in Mediation Matters!, the Clinic’s quarterly newsletter. Irvine wrote an account of his own mediation system that was one of ten real mediation systems Lande analyzed in Real Mediation Systems to Help Parties and Mediators Achieve Their Goals
How the Real Practice Systems Project Can Help Improve Mediation Quality
Get PDFImproving mediation quality is tricky. This post describes how the Real Practice Systems Project can help
How the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 Turns Attempts at Conciliation into Compulsion
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Revisiting the Original Congressional Debates About the Second Amendment
Get PDFMany scholars and courts have written about the historical background of the Second Amendment, either to emphasize its connection to state level citizen militias or to argue that the Amendment protects an individual right to own and carry guns for self-defense. While many authors have mentioned the original congressional debates about the Second Amendment, the literature is missing a thorough, point-by-point analysis of those debates, situating each statement in Congress within the context of the speaker’s background and political stances on issues overlapping with the right to keep and bear arms. This Article attempts to fill this gap by providing a methodical discussion of each comment or argument made in Congress when the Second Amendment was under consideration. This discussion addresses how each of the congressmen’s comments connect to public statements made by the same members of Congress in the months that followed on related topics: taxation and public debt related to militias, the supply of available firearms and their legal status as private or public property, the institution of slavery, westward expansion, and especially the complications for each of these issues posed by the Quakers, who became the center of attention during the debates about the Second Amendment. These original congressional debates have taken on more importance following the Supreme Court’s recent holding that courts should decide Second Amendment challenges based on historical evidence from the years immediately preceding and following ratification. While this Article does not take a position on current litigation over modern firearm regulations, the discussion here can offer courts and commentators new insights into the original public meaning of the Second Amendment
Real Mediation Systems to Help Parties and Mediators Achieve Their Goals
Get PDFThis article argues that it is time for a paradigm shift in our current general mediation theory because of numerous problems. Our current theory is incomplete at best and seriously misleading at worst. The traditional mediation models are oversimplified, poorly mapping onto the reality of practice. They combine multiple elements that are not necessarily correlated. Many practitioners ignore them because they are confusing or not helpful. People do not understand the theoretical meanings because the terms are not consistent with commonly understood language. Arguments about what is or is not real or good mediation have spawned unhelpful ideological divisions in the field